# FILED August 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1998

LARRY JUNI OR KEATON, ) C.C.A. NO. 01C01-9704- CR-00146 ) Appe llant, ) ) DEKALB COUNTY V. ) ) ) HON. LEON BURNS, JR. , JUDGE STATE OF TENNESSEE ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT : FOR THE APPELLEE : HENRY D. FI NCHER JOHN KNOX WALKUP 15 South Jeffer

son Avenue Attorney General& Reporter Cookevill e, TN 38501 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 WILLI AM EDWARDGIBSON District Attorn ey Ge neral ANTHO NY J. CR AIGHEAD Assistant Distri ct Attorney General 145 South Jeffer

son Avenue Cookevill e, TN 38501

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petitioner, L arry Junio r Keaton , appea ls the orde r of the De kalb Co unty Criminal Court dismiss ing his pet ition f or post-conv iction relief . Petit ioner arguesthe followin g four (4 ) issue s in this a ppea l:

1. Whether Petiti oner’s ri ght to due process was violated by both the Sta te not giving not ice of its i ntent to dismiss a count in t he indict ment for the s ale of a certain drug and by the S tate’s re ferenc e to tha t certain drug d uring tria l; 2. Wh ether the State’s c losing argum ent at trial was prope r; 3. W hethe r the ca reer of fende r statute is cons titutiona l; 4. Wh ether the tr ial cou rt erred in fail ing to i nstruct t he jury as t o a lesser i ncluded offense; and 5. W hether P etitioner’s trial co unsel w as ineffec tive.
Petiti oner was convicted at tri al of one count of se ll ing co deine , a Sch edule III controlled subs tance. The trial court sente nced him to twelve (12) years as a
careeroffender. On direct appeal, Petitioner al leged that the trial co ur t erred in faili ng to charge the jury on simple possessi on, casual exchange, and missi ng wi tne sses. State v. Larry Keaton , C.C.A . No. 0 1C0 1-930 8-CC -0026 5, De kalb Coun ty (Tenn. Crim. App. , Nashvil le, June 30, 1994 ). Th is Court rejected t hose claims, and Petiti oner didnot appe al t

o th e su pre me court. Id . Petit ioner fi led a pro se post-con viction petition raising nu merou s issues , and s ubsequently hi s appointed counsel filed an ame nded post-c onvictio n petitio n. Foll owing a hearing, the trial court de nied his p etition for po st-convictio n relief.

In its Rule 20 affirma nce of Petitioner’s direc t appeal, this Cou rt briefly relayed the facts of

the instant

case as follo ws: “A state tro oper p urcha sed tw elve (1 2) pills-3-

containi ng cod eine an d sixty-three (6 3) counterfeit pil ls which t he defendant had presented a s ‘somas’ for a total sale in th e amo unt of nine ty-eight do llars ($98). A confidenti al informant was presentduring thes e transacti ons, but t he State did not call this witness to testify at trial.”

Petiti oner testified at the post-convict ion hearingthat he and K athryn Bullard
saw Terry Skinn er whe n they w ent to b uy bee r. Acco rdin g to Petiti oner, Skinner asked if they

had any drugs and Petiti oner told hi m that Bullar d had some. Skinner said he did nothave th e mo ney with him a nd as ked if th ey wou ld me et him in thirty minutes at the same locat ion. Thir ty minutes l ater, Ski nne r returne d. “The best [Petitioner] can reme mber ,”Bul lar d co unt ed ou t t he pi ll s an d han ded t hem to hi m, and then he handed them to Skinner. Skinner t hen gave Petitioner the money which he then passed to Bul lard.
Regarding his tri al coun sel’s alleged i neffectiveness, Peti tioner testifi ed at the hearing that he met w ith his a ttorney , Chris Cant rell, several t imes prior to tri al. They discussed the facts of t he case and the elements of the charged crimes. They also discussed calli ng bo th Skinner and Bul lard as witnesses. When Petiti oner asked Can trell why he w as not g oing to put Bullard on the stand, Can trell said Bullard would do more harm than good . Pet itioner te stified th at he th ough t Bullard would have testified that s he rec eived the proceeds from thesales. However , Petit ioner did admit that Bu llard could have testified that the entire transa ction w as Pe titioner’s idea.
Kathryn Bullard testifi ed at the heari ng that she and Pet itioner were charged with selli ng Tyleno l III’s with code ine. Prior to P etitioner’s trial, B ullard pled guilty to-4-

simp le possession. Bullard cl aimed at the hearing that Skinner approached her

and Petiti oner and wanted to know i f they had any pill s. Petit ioner tol d Skinner that Bullard might ha ve som e and S kinner as ked if he co uld meet th em ba ck in thirty minutes. Accord ing to Bu llard, when the transa ction took place, she w as the one who took the money.

Howeve r, Bullard adm itted tha t she m ade th e follo wing stat ement in her applicat ion forpretri al diver sion: “Larry Keaton was drivi ng my car and I was i n the car with hi m. I do not know any thing about

the inci dent in quest ion. I do not know what was going on.”

She later met with a probation offi cer regarding a presentence report and provided the following statemen t: “I was with my boyf riend, Lar ry Keaton, in my car. I didn’t know what he was doing. I was at the wrongplace at t he wrong time. I was innocent

of this incident . I have never been in any tr ouble before an d I’ve always tried to lead a dece nt life.”

Bullard testified that sh e me t with C antrell prior to trial , and that they disc ussed Petition er’s case. She t old Cantr

ell t hat she wo uld take the blame if she testi fied. Bullard admitted t hat she would have likel y been impeached at tri al had she test ified.

Chris Cantrell , Petit ioner’s t rial coun sel, testifi ed that he met wi th Petit ioner at least 25 times prior to trial. Petitioner advi sed him that Bullard would takethebla me if permitted t

o testif y. Can tre ll asked Pet itioner if Bull ard would be testify ing truthfully, and Petiti oner said t hat she would n ot. Cantr ell state d that h e did n ot call her as a witne ss beca use he did not wis h to prese nt perju red tes timon y. Can trell did attemptto use Bullard as ascap egoa t at trial, in essence b laming her for the entire transacti on.-5- Can trell, Petition er, and the Sta te all atte mpte d to loc ate Sk inner, b ut he c ould not be found because he had fled the county. Cantrelldid, however , obtain a copy of Skinner’s c riminal r

ecord and questi on ed Trooper Wilbanks, the undercover police officer , about it

during cros s-examinati on.

Can trell further

testified that Pet itioner was originall y charged with two cri mes, but that the count regar ding t he sal e of Somaswas nol led on the day of trial . Atthat point, he had already s ubmitted hi s proposed jur y instructions to the court. Cantr ell agreed that the State periodi cally r eferred to the sale of

Somas during the t ria l. He testif ied that he did not object to these ref

erences because he did not want to draw any unnec essary attenti on to them. He sai d he believed the references t o Somas “just wen t right over ev eryone’s head.”

I.
A. Nolled Charge Petitio ner was or iginal ly charged wi th two counts , the fi rst being the sale of Codeine, a Schedule I II con troll ed substance, and t he second being the sale of Somas, a Schedule IV cont rolled su bstance. Tenn. Code Ann. §§ 39-17-417 (a)(3); 39-17-423 (a)(1). At some po int pr ior to t rial, the State not ified Pet itioner’s tri al counsel that it had nol led the second count as to the sale of Somas.

Petiti oner argues that the S tate’s notice was un timely. Howeve r, Petition er did not raise this issue in hi s direct appeal, and his failure to do so constitutes awaiver of this i ssue. Tenn. Code Ann. § 40-30-206(g) . Even if we deem thi s issue as not waived, it is still without me rit. Petitioner fa iled to prese nt any pro of at the po st--6-

convicti on hearing of how h is trial was pre judiced b y this allege d error. P e titi oner fo cused on the ineffec tivenes s claim at the h earing , so the court’s ruling o nly addressed the i neffectiveness clai m and a few others. The trialcourt did not even address this issue. In fact, when the co urt asked Pe titioner’s counsel if there were any other

issues that req uired a ruling, c ouns el replie d in the negative. In sup port of his argument, Peti tioner r efers to Rul e 45(c) of t he Tennessee Rules of Cri minal Procedure. That rule states that a person who fi les a motion r equiring a hearing must serve the moti on on oppo sin g co unse l no later t han fiv e day

s be for e th e ti me specifi ed for thehearin g. This rule is n ot app licable to this case . Petitioner fa ils to cite any other auth ority for the proposition that the State is re quired to di smiss a charge by a certa in date. T his issue is without m erit.

B. State’ s References to Somas During the trial, the S ta te r eferred to the sale of Somas, even though that count had actuall y been dismissed. Petiti oner now complains t hat the refere nces to S omas during trial and during closing argum ent were imp roper. Howe ver, again , Petiti oner di d not rai se this i ssue on direct appeal, and t herefore, it is deemed waived. Ten n. Code A nn. § 40-30-2 06(g).

II.

Petiti oner argues that the S tate impr operly co mm ented o n his failure to testify when during cl osing a rgument the State r eferred to the offi cer’s “unr ebutted testimon y.” The State asse rts in its brief tha t this issu e has been previo usly-7-

determined and is therefore not cogn izable in this petition. See Tenn . Code Ann. § 40-30-206 (h). Specifically, it appears that Peti tioner r

aised thi s issue in hi s motion fora new trial. W e can resolve this issu e aga inst Pe tit ioner as this Court has
cons istently held that such arguments as theone made by the State i n the instant case are not im proper. See , e.g. , Tune v. State , C.C.A. No. 01C01- 9412-CC-00423, Mars hall County (Tenn. Cri m. App., Nashvil le, Oct. 31 , 1995), perm. to appeal denied (Tenn. 199 6).

III.

P etitio ner asse rts that th e care er offen der sta tute is u ncon stitution al. Petiti oner did not raise th is issue at tria l, on direct ap peal, or ev en at the p ost - convicti on hearing . It has ther efore be en waive d. Tenn. Code Ann. § 40-30-206(g) and -210(f).

IV.

Petiti oner next assert

s that thetrialcourt err ed in fai ling to instruct the jury on the charge of facilitation of a felony. We agree with the court’s f inding atthe postconvicti on hearing that this i s not an issue f

or post-c onvictio n relief s ince it is not an abridgmentof any co nstitutiona l right. Tenn . Code Ann. § 4 0-30-20 3; see also Overton v. State , 874S.W.2d 6 , 12 ( Te nn. 199 4). Furt hermore, even i f this issue
was proper, Pet itioner has waived thi s issue by failing to raise it at

trial or on direct appeal. Te nn. Code Ann. § 40-3 0-206(g) an d -210(f).

V.-8- Petiti oner argues that his tri al counsel was ineffective i n five i nstances: ( 1) for faili ng to discover “the supposedinformant us ed in thi s case;” (2)for failing to locate Kathryn Bullard i n time for t rial; (3) for faili ng to demand an instruction on the lesserincluded offense o f f aci litation o f a felon y; (4) for fa iling to o bject to the Sta te’s referencesto “unrebut ted testi mony” du ring its c losing arg umen t and for failing to argue for jur

y nullificati on; and (5) for fail ing to object to testimony regardi ng Somas.

In determining whether counsel provided effective assistance at trial, the court must decide wh ether counsel’s performance was within the range of competence demanded of attorney s in crimin al cases
. Ba xter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). T o succe ed on a claim tha t his cou nsel was ine ffective at trial, a petiti oner bears the burden of showi ng that hi s counsel made errors so serious that he was not funct ioning as counse l as guaranteed under the Sixth Amendment and thatthe defic ient repr esentation prejudiced the peti tioner r esulti ng in a failu re to produc e a reliable result. Strickl and v. Washington , 466 U.S . 668, 693 , 104 S. C t. 2052, 80 L. Ed . 2d 674 , reh’g denied , 467 U. S. 1267 (198 4); Coop er v. State , 849 S.W.2d 744, 747 (T enn. 1993 ); Butler v. Sta te , 789 S.W .2d 898, 899 (Tenn. 199 0). To satisfy the secon d prong t he peti tioner must show areason able pro bability that, but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le doubt regarding pet itione r’s guilt. Strickl and , 466 U .S. at 69 5. This reaso nable probab ilitymust be “su ff icient to underm ine confidence in the outcom e.” Harris v. State , 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted)
.
When review ing trial c ouns el’s actio ns, this Cour t shou ld not use the be nefit of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s al leged errors shoul d be judged at-9-

the time they were made in light of allfacts and circumstances. Strickl and , 466 U. S. at 690; see Cooper , 849 S.W.2d at 746.

In determini ng whether this Pe titioner h as sa tisfied th ese re quirem ents, th is Court must g ive the findin gs of the tria l court the we ig ht of a j ury verdi ct, and th e judgment of the trial court will not be reversed unless the evidencecontained i n the record prepon derates against th e findings of fact ma de by the trial court. S tate v. Buford , 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).

We have revi ewed Petiti oner’s various clai ms and we find that Petiti oner has failed to presentany evidence t hat shows that his attorney represe nted him in any othermann er than c ompe tently. A s to his f irst compl aint, Pet itioner’s counsel testif ied at the post-convict ion hearingthathe, Petit ioner, and t he State searched for the informant, who had fle d th e co unty, and that no body cou ld l ocate hi m. Pet itioner’ s couns el none theless u sed the informa nt’s crimin al record at trial to impeach the offi cer who testified on behal f of the State. Petiti oner did no t call this informant

as a witne ss at h is post-conv iction h earing , so the re is no record of his expected testimony. Therefore, Pet itioner cannot prove t hat he was prej udiced by the info rman t’s abs ence at trial.

As to his next

claim regard ing Kathryn Bullard, Petiti one r’s tria l counsel testif ied that he di d not callher as a witness bec ause she intended to pe rjure herself. Bul lard wan ted to testify at Petit ioner’s t rial and t ake fullresponsibi lity

for the drug sale. However, when Peti tioner’ s counsel asked Pe titi oner if Bul lard’s testimony would be truthful, he respo nded negatively. In fact, in the presentence report and in her request f

or pretri al diver

sion , Bu llard deni es any involvement in the s ale.-10-

Petition er’s coun sel was certainly not ineff

ective f or fail ing to cal l a witness who intende d to perjure herself.

In Petiti oner’s cl aim thathis counsel was ineffective f or fail ing to demand an instruct ion on a lesser- included off ense, the Tennessee Supreme Court has held,
as men tioned previo usly in th is opin io n, thatsuch a com plaint is not co gniza ble in
a post-con viction petition
. See Overton , 874 S.W .2d 6. Moreove r, the court reasoned that“to all ow every error committed by t he trial court to be recast in a post convicti on petition as an ineffec tive assista nce of co unsel alle gation w ould be to subvert the limited p urposes o f the post conviction p rocedure.” Id . at 12.

Petiti oner also claim s that cou nsel wa s ineffecti ve for fai ling to object to the State ’s referenc es to “un rebutted testimon y” during its c losing arg umen t a n d that counsel was ineffective f or fail ing to argue for jur y nul lifi cation . Petit ioner did n ot presentany evidence r egarding eit her of these issues at t he post-convi ction heari ng and h as, therefore, failed to sh ow that he wa s prejudiced in a ny way by thes e actions.
Lastly, Petiti oner clai ms that his couns el was ineffective f or failing to obje ct to testimony

regarding Somas. Pet itioner’s counsel testifi ed at the post- convict ion hearing that he made a tact ical deci sion notto object to t he references because he did not want

to draw attenti on t o them. Even if this was a poor

tactical decisi on, Petiti oner is still n ot entitl ed to reli ef because he has fa iled to show how he was prejudiced. The c ourt sta ted at th e pos t convic tion he aring th at “he [P etitione r’s
coun sel] did not obj ect beli eving that it was part

of the transac

tion and t hat it di d not have any impact on the jury and it was par

t of thestrategy, an d I see no fault in that.-11-

It was a pretty

clear cut

kind of a sal e. There was n’t any q uestio n that a sale transpired.”

The trial court furthe r state d in its r uling th at “ther e’s [no]showing here t hat there’s any defici ency to begin with and any judgment calls that counse l may have made in thi s Court’s opi nion did not prejudice the defen dant’s defense in the case and I believe he received a f air trial.” We agree with the trial court’s fi ndings. The evidence contained i n the li mited record does not preponderate against t he trial
co urt’s findingthat Peti tioner r eceived the ef

fectiv e assistance of

counsel. Thi s issue is without m erit.

Based on all the fore going , we affirm the trial c ourt’s dism issal of P etitione r’s petition for p ost-con viction relief.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ L. T. LAFFERTY, Special Judge