# FILED
September 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION
ROBERT BURNS, ) ) NO. 01C01-9709-CC-00434 Appellant, ) ) MAURY COUNTY VS. ) ) HON. WILLIAM B. CAIN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : SHARA A

NN FLACY District Public Defender JOHN R. WINGO (At Hearing) Assistant Public Defender 209 W. Madison Street P.O. Box 1208 Pulaski, TN 38478-1208 JOHN E. HERBISON (On Appeal) 2016 Eighth Avenue S. Nashville, TN 37204-2202 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELIZABETH B . MARNEY Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General JES SE D URH AM Assistant

District Attorney

General 10 Public Square P.O. Box 1619 Columbia, TN 38402-1619

OPINION FI LED:

AFFIRMED

LEE MOORE, SPECIAL JUDGE1 Some tension had apparently existed bet ween the defendant’s and the victim’s

respectivefamilies for some time relating to the defendant’s family’s use of adjoining pro pert y. 2 OPINION

The petitioner, Robert Burns, appeals the order of the Maury County Circuit Court denying his petition fo r post-conviction r elief. Petitioner is cur

rently serving
a sentence of fifty (50) years for one (1) count of second degree murder. Because the offense was committed with a firearm, petitioner’s sentence was enhancedfive (5) years for a n effec tive sente nce of f ifty-five (55) years. Petiti oner filed the present petition, claiming that he receiv ed ineffective as sist ance of trial and appellate counsel. On appeal, he argues that cou nsel wasineffe ctive by failing to: (1) l isten to the audiotape of defendant ’s pre liminary hearing; (2) request a special jury charge on mutual combat; (3) submit the sentencing heari ng transcript as part of the record on direct appeal; and (4) challenge the sufficiency of the evidence on direct appeal regarding venue. After a thorough review of the record before this Court,we find no reversible err

or. Accordingly,the judgment of the trial cour t is affirmed.

FACTUAL BA

CKGROUND

A. Trial Petitioner

was convicted by a Maury County jury of one (1)

count ofsecond degree murder by use of a firearm. H is conviction was affirmed by

this Court. State
v. Robert Burns , C.C.A. No. 89-117-III, Maury County (T e nn. Crim. App. filed December

21, 1989, at Nashville). We will recite the facts, in part, as set out by this Court on direct appeal:

On Thanksgiving morning , November 26, 1 987, the defendant's sons, Ronnie Burns and J erry Burns, went hunting w ith three other young menon property adjacent to a farm owned by the victim, Virgil Fuller. At lunchtime, they report ed to the defendant that they had hea rd several shots fired from the vicinity of the Fuller residence. 13 In res ponse to his son's comments, lat er that afternoon the defendant armed himself, drove to the victim's t ra iler, blew his car's horn, and walked toward the trailer. The victi m pla ced a handgun in the w aistband of his pants, went outs ide and said, “Get out of here , Robert Burns. I'm not goi ng to argue with y ou.” According to Michelle Lewis, the victim's t hirteen year old stepdaughter, the victim jumped back w ith his hands up jus

t as the defendant fired. The victim then ran behi nd a tree, drew his w eapon, and fired two shots. When the def endant got inside his car, the victim returned to his residence .

. . Medical testimony established that the victim died from blood loss resulting from a singl e gunshot wound to the abdomen. Ther e was an exit wound in the back.

. . . . Immediate lya fter the shooting, Sergeant J ames Johnston of the Maury County Sheri ff's Department questioned the defendant at his residence. The defendant denied kno wing anything about the shooting and claimed that he had been in his hay field. In a search later

that evening, authorities found a box of shells in the defendant's bedroom, a holster, and a gun underneath some tin beside his garage. The pistolhad four live rounds and one spent shell under a cocked hammer. The defendant admitted having hidden the weapon. Afterwards, the defendant admitted that he shot the defendant but claimed that it was in self-defense.A bullet was found in the Ful ler residence near the door. The cr ime laboratory later deter mined that it had been fired from the defendant's gun. At trial, the defendant testified that the defendant curs ed him, o rdered hi m to leave, and shot three or four times before the defendant returned fir

e from some

three to four feet away. He clai med that he initially li ed to officers because he was sc ared. State v. Robert Burns , No. 89-117-III, 1989 Tenn. Cri m. App. LEXIS 893, at *1-2. B. Post-Conviction Jerry Colley was retai ned to represent petitioner at

trial. He testified that his legal career

spanned forty-six (4

6) years and he had tried over 100 murder cases. He stated that he metwith the petitioner se veral times prior to

trial and investigated the case thorough ly. He acknowledged th at he failed to listen to the audiotape of petition er’s preliminary he a ring, and his secretar y made an error in the tr anscript. When he attempted to use the preliminary hearing transcript to impeach a state’s witness, it
was discovered that the trans cript was inaccurat

e. However

because he could not4

recall the witness’ preli minary hearing testi mony fully prior to trial, he saw no

reason to questi on the tra nscript’s accuracy. He testified that

he was unaware of why he did not request that the trial court charge the jury on mutual combat. H e furth e r stated that he did not contest the sufficiency of the evidence on appeal because he though t such a cla im would ha ve been frivolous. Petitioner

testified that his attorney met with him only once prior to trial. He furth ersta ted that he informed Colley pr ior to trial that the pre liminary hearing transcript was err

oneous, but Colley disr egarded this information. The trial court found that counsel’s representati on was not only effectiv e, but “outstanding.”

The court further found that petitioner suffered no prejudi ce from any of counsel’s alleged defici encies. Thus, the trial cour t denied post-c

onviction rel ief. From this ruling, petitioner now brings this appeal.

STANDARDS FOR REVIEW
The trial judge's findings of fact on post-conviction hearings are conclusi ve on appeal unless the evidence prepond erates o therwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a jury v erdict, and this Court is bound

by the trial court’s findings unless the evidence in the record preponderatesagainst those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim.App. 1997); Dixon v. State , 934 S.W.2d 69, 72 (Tenn . Cr im. Ap p. 1996). This Court may not reweigh or reevaluatethe evidence, nor substitute its inferences for those drawn by the trial judge. Henley v. State , 960 S.W.2d at 578-79; Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerni ng the credibility of witnesses

and the weight

and value to be given to their testimony are res olved by the trial court, not this court.5

Henley v. State , 960 S.W.2d at 579; Black v. State , 794 S.W.2d at 755. The burden of establishing that the evidence preponderates otherwise is on petitioner. Henley v. State , 960 S.W.2d at 579; Black v. State , 794 S.W.2d at 755.

INEFFECTIVE A

SSISTANCE OF C

OUNSEL

This Court reviews a claim of ineffective assistance of counsel u nd er the st andards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Str ickland v

. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance was deficient, and (2) the deficient per

formance resulted in prejud ice to the defend ant so as t o deprive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990). The test in Tennessee in determining whether counsel provided eff ect i ve assistance is w heth er his performance was within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. The petitioner

must overcome the presumption that counsel’s conduct falls w ithi n th e wide range of acceptable pr ofessional assistance. Stricklan d v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State , 958 S.W .2d 138, 14 9 (Tenn. Cri m. App. 1997); State v. Willia ms , 929 S.W.2d 385, 389 (Ten n. Crim. Ap p. 1996). Therefore, in order to prove a deficiency, a petitioner must show that counsel’s acts
or omission s we re so serious as to fall below an objective standard of reasonableness under prevailing profes sional norms. Strickland v. Washington , 466 U.S. at 688 , 104 S.Ct . at 2065; Henley v. State , 960 S.W.2d at 579; Goad v. State , 938 S.W.2d at 369.

A. Preliminary Hearing Transcript Petitioner

contends that trial counsel was ineffective for failing to listen to the audiotape of petitioner’s preliminary hearing prior t o trial. State witness, Michelle6

Lewis, testified at

trial that her stepfather tol d petitioner before he was shot, “Get out of here, Robert Burns. I’m not going to argue with you.”

During cross-ex

amination, tria l counsel attempted to impeach Lewis with the transcr ipt of her preliminar

y hearing testimony, wherein it was transcribed that she heard Fuller say, “Get out of here, Robert Burns, or I’ll put a hole in you.” Lewis denied that she testified in that
manner. In a jury-out proceed in g, the prosecution informed the court and def ense counsel that the transcript of Lewis’ preliminary hearing testimony was incorrect, in that she did testify that Full er stated, “I’m not going

to argue with you” instead of “I’ll put a hole in you.” Defense cou nsel argued that his secr etary transcribed th e hearing at his request, and the tr anscript was mistakenl y inaccurate. Defen se counse l promptly moved for a mistr ial, which was den ied by the trial cour t. Upo n the jury’s return, the trial court gave curative i nstructions. The disputed portion of the audi otape of the preli minary he aring was th en played for the ju ry. Petitioner

appealed the trial court’s denial of the mis trial on direct appeal. This Court affirmed the trial court’s decision, implicitly holding that the petitioner’s right to a fair trial was

not compr omised. State v. Robert Burns , No. 89-117-III, 1989 Tenn. Crim. App. LEXIS 893, at *3. Petitioner

argues that

trial counsel’s failure to listen to the preliminar y hearing tape constituted deficient performance which resulted in prejudice to the petitioner. We disagree. The trial court foundthat counsel’s representati on of petitioner was “outstanding,”

and this Court is bound by that finding unle ss the evidence preponderates otherwise. Henley v. State , 960 S.W.2d at 578. In any event, petitioner has not established prejudic e. On direct appeal, this Court held that a mistrial w as not mandated, implicitly concluding that defendant
was not denied his right to a fair tr ial. Furthermore, the tr

ial court fully instr

ucted the jurors asto the misunderstanding. Petitioner has not established that the alleged error deprived him of his right to a fair trial. This issue is without merit.7 B. Mutual Combat Jury Instruction Petitioner

also asserts that counsel was ineffective for f ailing t o request a special jury instruction on mutual c ombat. He maintains that, under th e law that existed at the time of the commission of the offense, a homicide committed during mutual combat is voluntary manslaughter. See Cooper v. State , 356 S.W.2d 405, 411 (Tenn. 1962). He argues that the evidence supports an instruction on mutual combat, and trial counsel wa s ineff ective for failing to request su ch an instruction. “Mutual combat has been defined as ‘o ne into which both parties enter willingly, or in which t wo persons, upon a sudden quarrel, and in hot blood, mutually fight.’” State v. Johnson , 909 S.W .2d at 464 (quot ing Black’s Law Dicti onary 26 6 ( 6th ed. 1990)). Mutual combat is n ot a statutory defense, but may constitute “provocation”

which would reduce the degree of homicide. Johnson , 909 S.W.2d at 464 (citations omitted). However, the evidence in this cas e would no t support an instruction on mutual combat. See, e.g., State v. Bennett , 79 8 S.W.2d 783 , 790 (Tenn. C rim. App. 1990). The state’s theory was that even though the vi ctim had agun tucked into his pants, he had his hands in the air at th e time he was shot. Furthermore, petitioner

testified at trial that he did no t try to shoot the vi ctim. None of the tes timonyat trial gives rise to an inference that the parties engaged in “mutual” fighting prior to the victim being shot. An instructi on on mutual combat was
unneces sary. Therefore, counsel was not defici ent forfailing to request suc h an instruction. Nevertheless, petitioner was not prej ud iced b y the failure to request an instruction on mutual combat. At the time the offense was committed, a homicide committed during mutual combat was voluntary manslaughter, Cooper v. State , 356 S.W.2d at 411, and th e j ury was properly charged as to voluntary manslaughter. The jury obviously

found that the victim’s acti ons did not constitute adequate2 This offense was committed prior to the effective date of the Criminal Sentencing Reform Act of 1989, and petitioner was also sentenced prior to its effective date. 8 provocation which would reduce the homicide to voluntary manslaug hter. Petitioner has suffered no prejudice. This issue is without merit. C. Sentencing In his next issue, petiti oner contendsthat counsel was ineffectiv e for failing to submit the sentencing hearing transcript as

part of the record on direct appeal. On direct appeal, petitioner argued that his sentence of fifty- five (55) years w

as excessive. However, because th e sentencing hearing tr anscript was

not included in the record, this Court w as precluded from considering the issue on its merits and deemed the issue waived. State v. Robert Burns , No. 89-117- III, 1989 Tenn.Crim. App. LEXIS 893, a

t *3-4. Peti

tioner clai ms that there is a reasonable probability that this Court would have reduced his sentence had theissue been determined on its merits. Therefore, he asserts that counsel was deficient, and he suffered prejudice as a result. Assuming, arguendo, that counsel w as deficient for failing to submi t th e transcrip t of t he sentencing hearing on di rect appeal, we are not per suaded that petitioner’s sentence would have been modi fied. Petitioner was pro perly sentenced under the 1982 Sentencing Act. 2 See Tenn. C ode Ann. § 40-3 5-101, et. seq. (1982). Under the 1982 Act, petitioner was sentenced as

a Range II offender, as he w as adjudged to be an especiall y aggravated offender. A n “espec iall y aggravatedoffense” is “[a] felony resulting in death or bodily injury or invol

ving the threatof death or bodily injury to another person where th e defend ant has previouslybeen convicted of a felony that resulted in death or bodily injury.” Tenn. Code Ann. § 40-35-107(1) (Supp. 1987). Because the present offense was sec ond degree murder and petitioner had a prior conviction of voluntary manslaughter, he properly qualified as an especially aggravated offender. Furthermore, defend ant had a n extensive criminal history, including various9

misde meanors, assault on a police officer w ith the intent to commit a fel ony an d being a convicted felon in posses sion of a firearm, all in addition to h is prior conviction for voluntary manslaughter. Moreover, defendant had a pri or probation revocation in 1984. During the sentencing hearing, the trial court noted defendant’s leng thy criminal history in add ition to his conviction for v oluntary manslaughter. The trial court also recognized that defendant had a previous probation rev ocation. Both of these are appropriate

enhancement factors under the 1982 Sentenci ng Act. Tenn. Code Ann. § 40-35-111(1), (8) ( 1982). The trial court then enhanced petitioner’s sentence from the minimum thirty-five (35) years to fifty (50) years. Our review of the record

indicatesthat the trial court prope rly considered the sentencing principl es, and petitioner received an appropriate sentence. We, therefore, conclude that petitioner has failed to establish that he was prejudiced as
a result of counsel’s failure to submit the sentencing heari ng transcript as part of the record on direct appeal. This issue is without merit. D. Venue Petitioner

finally insists that counsel was defic ie nt on appeal for failing to challenge the sufficiency of the evidence regardin g venue. He contends that there is no evidence that the homicide occurred in Maury Coun ty; thus, h e would ha ve received a new tri al had counsel raised the is sue. This issue was not raised in the pe tition for post-conviction re lief nor at the hearing on the petition. This Court has appellate jurisdiction only. Tenn. Code Ann. § 16-5-108(a). Issues not r aised in the petitionfor post-conviction re lief cannotbe raised for the first time on appeal. A post-convictionpetition “must necessarily rest upon and be determined by the factual al legationsit contains.” Long v. State , 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). This iss ue is, therefore, waiv ed. Regardless, our review of the transcript indicates that venue was established by a preponderance of the evi dence. The evidence showed that the homicide10

occurred at Fuller’s residenc e on Bear Creek Pike. A Tax Assessor’s map was introduced at trial whi ch shows that Bear Cree k Pike is in Maury Coun ty. Furthermore, the jury was pr ope rly charged as to v enue. Petitioner has not establis hed that he was prej udiced b y counsel’ s alleged d eficien cy. This issue has no merit.

CONCLUSION

The reco rd full y supports the trial c ourt’s determination that peti tioner received effective assistance of counsel. Accordingly, the j udgment ofthe trial court is affirmed.

LEE MOORE, SPECIAL JUDGE

CONCUR:

JOE G. RILEY, JUDGE

CURWOOD WITT, JUDGE