# FILED
October 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1998 SESSIO N

DANNY RA

Y MEEKS, ) ) C.C.A. NO. 01C 01-9709-CC-00387 Appellant, ) ) GRUNDY COUNTY VS. ) ) HON. J. CURTIS SMITH, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
EDWARD L. BORING JOHN KNOX WALKUP P.O. Box 381 Attorney General & Repor ter Pikeville, TN 37367 (On Appeal) TIM OTH Y F. B EHAN Asst. Attorney General MARION C. FORDYCE John Sevier Bldg. Washington Square, Suite 500 425 Fifth Ave., North 222 Second Ave., North Nashville, TN 37243-0493 Nashville, TN 37201 (At Hearing) J. MICHAEL T AYLOR District Attorney General THOMAS D. H EMBREE-andSTEVEN BLOUNT Asst. District Attor

neys General 265 Third Ave., Suite 300 Dayton, TN 37321

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

In August 1990, a

jury con victed the petiti oner of aggravate d kidnapping, espec ially

aggravated robbery, aggravated burgl ary, and extortion. The petiti one r received an effective sentence of forty-eight years in the Department of Correction. The petitioner

appealed, and this Court affirmed the petitioner’s convictions and sentence in August 1993. See State v. Meeks , 867 S.W.2d 361 (Tenn. Cr im. App. 1993)(permission to appeal denied Nov. 1, 1993). The petitioner filed his petiti on for post-conviction r elief
on October 6, 1994, alleging thirty-two gr ounds for relief. The petitioner tw ice amended his petiti on to all ege an ad ditiona l twent y-fiv e groun ds for re lief. After hearing evidence
on the issues raised by the petition, the trial court filed a memorandum opinion dis missing the petition in August 1997. One month later, th e trial court filed an addendum to its opinion . The pet itioner n ow appeal s, raising the foll owing issue s for revie w: I. Whether trial couns el was ineffective for failing to challenge the arrest warr ant for lack of probable cause because it did not contain a prope r signature by the iss uing magistrate? II. Whether trial counsel was ineffectiv e for failing to challenge the search and seizure of the petitioner ’s automobile? III. Whether t rial counsel was in effective for failing to chall enge the issuance of the search war rant of the petitioner’s resi dence? IV. Whether trial counsel was ineffective for failing to challenge for cause a juror who knew the victim of the crime? V. Wheth er t rial coun sel was ine ffecti ve for fa iling to ac t as an “ac tive advocate”by not properly inv estigating the

case and deciding not to call a certain defense witness? VI. Whether trial counsel was ineffectiv e for engaging in an i ntima te relationship with the petitioner’s wife, w ho was also aco-defendant in the case? VI. Whether trial counsel was ineffectiv e forfailing to challe nge variances between the proof and the indictment ? VII. Whether the trial court improperly concluded that th e vict im suffered “seriousbodily injury”

when c onsi dering the petitioner’s motion for judgment3 of acquittal, which deprived the petitioner of a fair trial? VIII. Whether the trial court’s instruction to the jury on the definiti on of “reasonable doubt” deprived the petiti oner of a fair trial in vi ol a tion of the Eighth and Fourteenth Amendments? IX. Whether the trial court’s failure to instruct the jury on all lesser included offenses deprived the petitioner of a f air trial? X. Whether the trial court deprived the petitioner of a fair trial by failing to pro perlyapply and enumerate the enhancement f actors and fail ing t o indicate it was follow

ing the guidelines of the s entencing act? After considering the parties’ appellatebriefs, the facts contained in the record, and the applicable law, we a

ffirm.

The petiti oner cites six reasons why hi s trial

counsel was in eff ectiv e. In
rev iewing the p etitioner’s Sixth Amendment claim of ineff ective assistance of counsel, this Court must determine whether the advice given or

services rendered by

the attorney

are within the range of compete nce demanded of attorneys in cri minal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective counsel,
a petitioner

“must show that counsel’ s representation fell below an objective standard of reasonableness” and that this performance prejudi ced t he defense. There must be a reasonable probability that but for counsel’s error, the result of the proce eding woul d have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985).

First, the petitioner argues that his trial counsel w

as ineffective because he failed to challenge the arrest warrant. The petitioner cites several reasons why the arrest warrant was void and why probable cause di d not exist to issue the a rrest warrant, but
our disposition of this issue need not concern the int ricacies of the petitioner’ s argument. Even assuming that the petitioner ’s allegations wer

e true and the arrest war rant was void, the petitioner has not shown how he was prejudic ed because once the State secures an4

indictment

or prese ntment, a ny defects emanating from the original arrest warrant are cured. See, e.g. , State v. Campbell , 641 S.W.2d 890, 893 (Tenn. 1982). The petitioner does not challenge the indictment in this case.Thus, the petitioner is not entitled to relief on this ground. See Strickland , 466 U.S. at 687-88.

Next, the petitione r argu es that his trial counsel w as ineffective for failing to challenge the search and seizure of the petitioner’s “family vehicle” a fter the petitioner and his wife had been arrested.Even assuming his tr ial counsel was ineffective for failing to challenge the searc h and seizu re of the automob ile, the p etitione r has not s hown prejudice. In other words, the pet itioner has not shown that but for his trial counsel’s failure to challenge the search and seizure of the automobile, the result of his trial in this
case would have been different. Without such a showing, the petition er is not entitledto relief on this ground. See Strickland , 466 U.S. at 687-88.

The petitioner also argues that trial counsel was ine ffecti ve for failing to challenge the issuance of the search warrant of the petitioner’ s residence. The petitioner claims the search warrant is void because the issuing party failed to retain a copy of the warrant. No evidence in the record supports this conclusory statement. The petitioner also claims that the officer who obtained the search warrant did so by knowingly making false statements i n his affidav it. This is

sue has been pr

eviously determi ned on direct appeal in this case. See Meeks , 867 S.W.2d at 364. Moreover, the petitioner claims that the la pse of time between the crime and the application f or a search warrant directly impacted “the probability that incriminating evid ence may be foun d.” The petitioner further claims that the search warrant is void because they were not i ssued by a “neutral and detached” party and that the issuing party failed to read the entire affidavit w ord for word. These are the exact issues raised in one of petitioner’s other cases, State v.1 The petiti oner even appears t o admit as much in his appel late bri ef by argui ng that t he portion of this Cour

t’s opi nion in Meek s II that addresses the search warra nt arguments rai sed here is wrong

. 5 Meeks , 876 S.W.2d 121 (Tenn. Crim. App. 1993)(hereinafter Meeks II ). In Meeks II , this Court determined that the petitioner’ s arguments lackedmerit. From our review---which is admittedly limited because the record d oes not contain a copy of the search warrant---it appears that the search war rant challenged in Meeks II is the same search war rant the petitioner

now claims

is vo id. 1 If that is true, then the issues the petitioner raises here have been previously deter mined. T.C.A. § 40-30-112(a)( 1990). However, ev en if the search warrant challenged in Meeks II is different from the search warrant the petitioner
now arguesis void, the petitioner has failed to show how he was prejudiced and how the result of his trial in this case would have been different without the evi dence seized from his residence. As such, the petitio ner is not ent itled to relief on this g round. See Strickland , 466 U.S. at 687-88.

Next, the petitioner contends his tr ial counsel was ineffective for failing to challenge for cause a juror, Micha el J. Perry, who knew

the victim of the crime. The petitioner

contends that

Mr. Perry misrepr

esented during voir di re the extent to which he k new the victim and that he was a biased juror. The transcript of the voir dir e proce edings shows that Mr. Perr y admitted he knew all of the parties involved on a “casual” basis, and he repeatedly i ndicated that heknew nothing about this case, did not have a preconceived opinion of the petitioner’s guilt or innocence, and would h av e an open mind if selected to be a juror. Based on this evidence, the post-con viction cour t found that Mr. Perry revealed during voir dire that he knew the defendants and the victim and that the petition er faile d to prese nt eviden ce of juro r miscond uct or ine ffecti ve assistance of counsel in regard to jury selectio n.

On appeal, however, the petitioner relies upon more than the transcript t o2 This attorney test ified because the petitioner’ s trial counsel diedprior t

o the post-convicti on hearing. 6 support his argument. He reli es upon a letter written b y his sister that he

claims conflicts with the transcript. In the letter, th e petitioner’s si ster allege s that Mr. Perry knew the parties better than heintimated during voir dire. This letter was not filed in the record until afterthe post-conviction court entered its order, which deprived the post-conviction court of the opportunity to

consider it. Because thi s Court is not a factfinding court, the letter is not prope rly c onside red as “evidence” on appeal. Further, because the evidence properlypresented to the trialcourt fails to reflect jur or misconduct, ineffective assistance of counsel, or resultingprejudice to the petitioner, this ground will not afford the petitioner relief. See Strickland , 466 U.S. at 687-88.

Next, the petitioner argues hi s trial counsel was ineffective for failing toact
as an “active advocate.” As support for this argu ment, the petitioner claims his attorney f ailed to properly inves tigate this case because he was “acting as an adv ocate for the State and working in c

onjunction with the

State to suppress facts and secret witnesses from the defendant and the technical recor d.” There is no evidence i n th e record to support the petitioner’s notion that his trial counsel w

as working “in c

onjunction”with the State to the petitioner’s detri ment. To the contrary, an att orney as sociated with the petitioner’s trial counsel and who also worked on the petitioner’s case 2 testified that the petitioner’s trial counsel kept a v oluminous file on this case and logged al most 260 hours
on the case from December 1990 to Marc h 1994, n ot counting a sixteen- month period forwhich the time shee ts w ere missing from the recor d. During that six

teen-month period, the petitioner’s trial counsel investigated and worked on the petitioner ’s case on at least forty-six s

eparate days. The trial c ounsel’s file also ind icated t hat he kept meticulous and organized records documenting his conversations with and information about each potential witness discovered during the course of his investigations.7 The petitioner also claims his trial co unsel was not an “active advocate ” because he decided not to call a potential alibi witness, Charles Anderson. To this argument, the post-conv ictio n court found that the attorney’s decision not to call Mr. Anderson as a witness was a matter of trial strategy because Mr. Anderson’s cr edibility
was questionable and his testi mony would have conflic ted with the testimony of the petitioner

and other witnesses in s evera l important regards, to the extent that it could have undermined the petitioner’s alibi d efens e. The evidence does not preponder ate against these findings. See Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993)(stating that the tri al cour

t’s find ings of fa ct are conc lusive on appeal unless the evidence preponderatesagainst the judgment). M oreover, t here is no e vidence in the record to support the defendant’s implication that his attorney’s decision no t to call Mr. Anderson to the witness stand w

as an uninformed decision. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982)(stating that the court should not second-guess trial counsel’s tactical and strategic choices unless those choic es were uninfor med because of inadequate prepara tion). Thus, th is arg ument will not afford th e petiti oner rel ief.
Next, the petitioner contends his trial counsel was ineffective because he engaged in an intimate relationshi p with the petitioner’s wife, who was

also a codefendant at trial. The petitioner al so implies that the prosecuti ng attorne y acted inappropriately by failing to “rev eal promptly to the Court i mproper conduct of members of the bar.” Contrary to the petitioner’s claim s, the record fails to reflec t that his trial counsel engaged in an intimate relationship with the petitioner’s wife. Moreover, this argumentis not a cognizable c onstitutional claim for which post-convi ction relief may be granted. See T.C.A. § 40-30-105 (1990).

Finally, the petitioner claim s his t rial counsel was in effective because he8

failed to challenge varianc es between theproof and the indictm ent, which is a chall enge to the sufficiency of the convicting evi dence. This argument will not afford the petition er relief, however, because the s ufficiency of the evidence cannot be revi ewed or tested in
a post-conviction proc

eeding. Gant v. State , 507 S.W.2d 133 (Tenn. Crim. App. 1973).

In the petitioner’s remaining issues, he alleges several trial court errors that he claims deprived him of a “constitutional fair trial.” First, the petitioner ar gues that the trial court depri

ved him o

f a fair tri al by “substitut[ing] it’s [sic] own defini tion of what constitutesserious b odi ly injury on the question of a directed verdict of acquittal” on all indicted co unts. It is well-sett led that a judgm ent of acquitt al tests only the le ga l sufficiency of the evidence. State v. Campbell , 904 S.W.2d 608, 611 (Tenn. Crim. App. 1995). Thus, although the petitioner has attempted to couch this i ssue in terms of the trial court’s actions, it i s nothing more than an attempt to t est the sufficiency of the convictingevidence. That being so, the petitioner is not entitl ed to relief because postconviction proceedings may not be employed to ques tion, review, or

test the sufficiency of the convicting ev

idence, see Gan t , 507 S.W.2d at 136, and because the convicting evidence has already been tes ted on direct appeal, barring this issue as “previously determined,” see T.C.A. § 40-30-112(a)(1990) ; see also M eeks , 867 S.W.2d at 369 (concluding that the evidence was sufficient to support all convictions).

Next, thepetitioner contends that the trial court’s instruction to the jury on the definition of “reasonable doubt” d eprive d him of a

fair trial. The petitioner ’s complaint regarding the “reasonable doubt” instr uction is presumedwaived because it could h ave been raised on direct appeal of thi s case a nd was not. See T.C.A. § 40-30-112(b)(1) (1990). The petitioner does n ot rebut this presumption by cla iming that he did not knowingly

and understandably agree to waive this iss ue by not raising it on direct appeal.3 The petitio ner’s argu me nt on this p oint in clud es on e last sent enc e, in w hich he st ates that h is trial counsel did not object to the t rial co urt’s f ailure to charge th e jury on the lesser included of fenses and that “the District Attorney General took no steps to protect the defendant’s constitutional rights.” From this langua ge, we c annot dis cern the significanc e the petition er attach es to thes e events (assum ing, of cou rse, the pe titioner’s uns upporte d statem ent is even true). 9 See T.C.A. § 40-30-112(b)(2)(1990). Even so, the petitioner would not be entitled to relief because the instruction used in this case has been approved as properly conveying “the jury’s responsi bility t o decide the v erdict based on the facts and the law.” State v. Nichols , 877 S.W.2d 722, 73 4 (Tenn. 1994).

Next, the petitioner argues that the trial court “denied [him] a fair trial when i t refused to charge all lesser included offenses when the necessar y proof was not offered at trial to establish the greater of the indicted offense s.” The petitioner continues, “It goes without sayi ng that the indicted offenses we re not proven at trial and the Trial Court charged the jur

y wit h only the indic

ted off ens es because it felt that there w as sufficientproof to convict the defendant.” This is the extent of the petitioner ’s argument
on this issue, 3 which reveals that this issue is nothin g more than an attempt to cha llenge the sufficiency of the convicti ng evidence. Thus, the petitioner’s arg ument must fail. See Gant , 507 S.W.2d at 137 (stating that post-conv iction proceedings may not be employed to question, review, or test the sufficiency of the convicting evidence).

In his last issue, the petitioner contends that the trial court dep rived the petitioner

of a fai r trial by f ailing to properly apply and enumerate the enhancement factors and by failing to

indicate it was follow

ing the guidelines of the s entencing act. The petitioner

has not rebutted the presumption that he has waived this issue by knowingly failing to raise it on direct appea l. See T .C.A. § 40-30-112(b) (1990) . Even so, the petitioner

fails to a llege that the judgment is void or voidable due to a constitutional violation, thus precluding consider ation of this issue in a post-conviction petition. Se e T.C.A. § 40-30-105 (1990); Overton v. State , 874 S.W.2d 6 (Tenn . 1994).10 Tacked on to the end of his brief, the petitioner r equests this Court to

sua sponte “consider . . . the fact that the State has withh eld exculpatory evidence.” It is unclear whatremedy the petitioner seeks from this Court on this ground and what impact this request would have on the petition er ’s post-conviction r elief petition. Even so, the record contains no evidence to support the petitioner’s claim that the State has withheld exculpatory evi dence.

Finding no merit to the petitioner’s contentions, the trial cour t’s dismissal of the petition for post-convi ction relief is affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ THOMAS T. W OODALL, Judge

______________________________ L. TERRY LAFFERT Y, Special Judge