FILED

August 18, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1998

LARRY JUNIOR KEATON, ) C.C.A. NO. 01C01-9704-CR-00146

)

Appellant, )

) DEKALB COUNTY

V. ) 

)

) HON. LEON BURNS, JR., JUDGE 

STATE OF TENNESSEE ) 

)

Appellee. ) (POST-CONVICTION) 

FOR THE APPELLANT: FOR THE APPELLEE:

HENRY D. FINCHER JOHN KNOX WALKUP 

15 South Jefferson Avenue Attorney General & Reporter

Cookeville, TN 38501

KAREN M. YACUZZO

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

WILLIAM EDWARD GIBSON

District Attorney General 

ANTHONY J. CRAIGHEAD

Assistant District Attorney General

145 South Jefferson Avenue

Cookeville, TN 38501

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Larry Junior Keaton, appeals the order of the Dekalb County

Criminal Court dismissing his petition for post-conviction relief. Petitioner argues the

following four (4) issues in this appeal:

1. Whether Petitioner’s right to due process was violated

by both the State not giving notice of its intent to dismiss

a count in the indictment for the sale of a certain drug and

by the State’s reference to that certain drug during trial;

2. Whether the State’s closing argument at trial was proper;

3. Whether the career offender statute is constitutional;

4. Whether the trial court erred in failing to instruct the jury as to a

lesser included offense; and 

5. Whether Petitioner’s trial counsel was ineffective. 

Petitioner was convicted at trial of one count of selling codeine, a Schedule

III controlled substance. The trial court sentenced him to twelve (12) years as a

career offender. On direct appeal, Petitioner alleged that the trial court erred in

failing to charge the jury on simple possession, casual exchange, and missing

witnesses. State v. Larry Keaton, C.C.A. No. 01C01-9308-CC-00265, Dekalb

County (Tenn. Crim. App., Nashville, June 30, 1994). This Court rejected those

claims, and Petitioner did not appeal to the supreme court. Id. Petitioner filed a pro

se post-conviction petition raising numerous issues, and subsequently his appointed

counsel filed an amended post-conviction petition. Following a hearing, the trial

court denied his petition for post-conviction relief.

In its Rule 20 affirmance of Petitioner’s direct appeal, this Court briefly relayed

the facts of the instant case as follows: “A state trooper purchased twelve (12) pills
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containing codeine and sixty-three (63) counterfeit pills which the defendant had

presented as ‘somas’ for a total sale in the amount of ninety-eight dollars ($98). A

confidential informant was present during these transactions, but the State did not

call this witness to testify at trial.” 

Petitioner testified at the post-conviction hearing that he and Kathryn Bullard

saw Terry Skinner when they went to buy beer. According to Petitioner, Skinner

asked if they had any drugs and Petitioner told him that Bullard had some. Skinner

said he did not have the money with him and asked if they would meet him in thirty

minutes at the same location. Thirty minutes later, Skinner returned. “The best

[Petitioner] can remember,” Bullard counted out the pills and handed them to him,

and then he handed them to Skinner. Skinner then gave Petitioner the money which

he then passed to Bullard.

Regarding his trial counsel’s alleged ineffectiveness, Petitioner testified at the

hearing that he met with his attorney, Chris Cantrell, several times prior to trial. They

discussed the facts of the case and the elements of the charged crimes. They also

discussed calling both Skinner and Bullard as witnesses. When Petitioner asked

Cantrell why he was not going to put Bullard on the stand, Cantrell said Bullard

would do more harm than good. Petitioner testified that he thought Bullard would

have testified that she received the proceeds from the sales. However, Petitioner

did admit that Bullard could have testified that the entire transaction was Petitioner’s

idea. 

Kathryn Bullard testified at the hearing that she and Petitioner were charged

with selling Tylenol III’s with codeine. Prior to Petitioner’s trial, Bullard pled guilty to
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simple possession. Bullard claimed at the hearing that Skinner approached her and

Petitioner and wanted to know if they had any pills. Petitioner told Skinner that

Bullard might have some and Skinner asked if he could meet them back in thirty

minutes. According to Bullard, when the transaction took place, she was the one

who took the money.

However, Bullard admitted that she made the following statement in her

application for pretrial diversion: “Larry Keaton was driving my car and I was in the

car with him. I do not know anything about the incident in question. I do not know

what was going on.” She later met with a probation officer regarding a presentence

report and provided the following statement: “I was with my boyfriend, Larry Keaton,

in my car. I didn’t know what he was doing. I was at the wrong place at the wrong

time. I was innocent of this incident. I have never been in any trouble before and

I’ve always tried to lead a decent life.”

Bullard testified that she met with Cantrell prior to trial, and that they discussed

Petitioner’s case. She told Cantrell that she would take the blame if she testified.

Bullard admitted that she would have likely been impeached at trial had she testified.

Chris Cantrell, Petitioner’s trial counsel, testified that he met with Petitioner at

least 25 times prior to trial. Petitioner advised him that Bullard would take the blame

if permitted to testify. Cantrell asked Petitioner if Bullard would be testifying

truthfully, and Petitioner said that she would not. Cantrell stated that he did not call

her as a witness because he did not wish to present perjured testimony. Cantrell did

attempt to use Bullard as a scapegoat at trial, in essence blaming her for the entire

transaction.
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Cantrell, Petitioner, and the State all attempted to locate Skinner, but he could

not be found because he had fled the county. Cantrell did, however, obtain a copy

of Skinner’s criminal record and questioned Trooper Wilbanks, the undercover police

officer, about it during cross-examination.

Cantrell further testified that Petitioner was originally charged with two crimes,

but that the count regarding the sale of Somas was nolled on the day of trial. At that

point, he had already submitted his proposed jury instructions to the court. Cantrell

agreed that the State periodically referred to the sale of Somas during the trial. He

testified that he did not object to these references because he did not want to draw

any unnecessary attention to them. He said he believed the references to Somas

“just went right over everyone’s head.”

I.

A. Nolled Charge

Petitioner was originally charged with two counts, the first being the sale of

Codeine, a Schedule III controlled substance, and the second being the sale of

Somas, a Schedule IV controlled substance. Tenn. Code Ann. §§ 39-17-417(a)(3);

39-17-423(a)(1). At some point prior to trial, the State notified Petitioner’s trial

counsel that it had nolled the second count as to the sale of Somas.

Petitioner argues that the State’s notice was untimely. However, Petitioner did

not raise this issue in his direct appeal, and his failure to do so constitutes a waiver

of this issue. Tenn. Code Ann. § 40-30-206(g). Even if we deem this issue as not

waived, it is still without merit. Petitioner failed to present any proof at the post-
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conviction hearing of how his trial was prejudiced by this alleged error. Petitioner

focused on the ineffectiveness claim at the hearing, so the court’s ruling only

addressed the ineffectiveness claim and a few others. The trial court did not even

address this issue. In fact, when the court asked Petitioner’s counsel if there were

any other issues that required a ruling, counsel replied in the negative. In support

of his argument, Petitioner refers to Rule 45(c) of the Tennessee Rules of Criminal

Procedure. That rule states that a person who files a motion requiring a hearing

must serve the motion on opposing counsel no later than five days before the time

specified for the hearing. This rule is not applicable to this case. Petitioner fails to

cite any other authority for the proposition that the State is required to dismiss a

charge by a certain date. This issue is without merit.

B. State’s References to Somas

During the trial, the State referred to the sale of Somas, even though that

count had actually been dismissed. Petitioner now complains that the references to

Somas during trial and during closing argument were improper. However, again,

Petitioner did not raise this issue on direct appeal, and therefore, it is deemed

waived. Tenn. Code Ann. § 40-30-206(g).

II.

Petitioner argues that the State improperly commented on his failure to testify

when during closing argument the State referred to the officer’s “unrebutted

testimony.” The State asserts in its brief that this issue has been previously
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determined and is therefore not cognizable in this petition. See Tenn. Code Ann. §

40-30-206(h). Specifically, it appears that Petitioner raised this issue in his motion

for a new trial. We can resolve this issue against Petitioner as this Court has

consistently held that such arguments as the one made by the State in the instant

case are not improper. See, e.g., Tune v. State, C.C.A. No. 01C01-9412-CC-00423,

Marshall County (Tenn. Crim. App., Nashville, Oct. 31, 1995), perm. to appeal

denied (Tenn. 1996).

III.

Petitioner asserts that the career offender statute is unconstitutional.

Petitioner did not raise this issue at trial, on direct appeal, or even at the post -

conviction hearing. It has therefore been waived. Tenn. Code Ann. § 40-30-206(g)

and -210(f).

IV.

Petitioner next asserts that the trial court erred in failing to instruct the jury on

the charge of facilitation of a felony. We agree with the court’s finding at the postconviction hearing that this is not an issue for post-conviction relief since it is not an

abridgment of any constitutional right. Tenn. Code Ann. § 40-30-203; see also

Overton v. State, 874 S.W.2d 6, 12 (Tenn. 1994). Furthermore, even if this issue

was proper, Petitioner has waived this issue by failing to raise it at trial or on direct

appeal. Tenn. Code Ann. § 40-30-206(g) and -210(f).

V.
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Petitioner argues that his trial counsel was ineffective in five instances: (1) for

failing to discover “the supposed informant used in this case;” (2) for failing to locate

Kathryn Bullard in time for trial; (3) for failing to demand an instruction on the lesserincluded offense of facilitation of a felony; (4) for failing to object to the State’s

references to “unrebutted testimony” during its closing argument and for failing to

argue for jury nullification; and (5) for failing to object to testimony regarding Somas.

In determining whether counsel provided effective assistance at trial, the court

must decide whether counsel’s performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petitioner resulting in a failure to

produce a reliable result. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct.

2052, 80 L. Ed. 2d 674, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849

S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

To satisfy the second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Harris v.

State, 875 S.W .2d 662, 665 (Tenn. 1994) (citation omitted). 

When reviewing trial counsel’s actions, this Court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at
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the time they were made in light of all facts and circumstances. Strickland, 466 U.S.

at 690; see Cooper, 849 S.W.2d at 746.

In determining whether this Petitioner has satisfied these requirem ents, this

Court must give the findings of the trial court the weight of a jury verdict, and the

judgment of the trial court will not be reversed unless the evidence contained in the

record preponderates against the findings of fact made by the trial court. State v.

Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).

We have reviewed Petitioner’s various claims and we find that Petitioner has

failed to present any evidence that shows that his attorney represented him in any

other manner than competently. As to his first complaint, Petitioner’s counsel

testified at the post-conviction hearing that he, Petitioner, and the State searched for

the informant, who had fled the county, and that nobody could locate him.

Petitioner’s counsel nonetheless used the informant’s criminal record at trial to

impeach the officer who testified on behalf of the State. Petitioner did not call this

informant as a witness at his post-conviction hearing, so there is no record of his

expected testimony. Therefore, Petitioner cannot prove that he was prejudiced by

the informant’s absence at trial.

As to his next claim regarding Kathryn Bullard, Petitioner’s trial counsel

testified that he did not call her as a witness because she intended to perjure herself.

Bullard wanted to testify at Petitioner’s trial and take full responsibility for the drug

sale. However, when Petitioner’s counsel asked Petitioner if Bullard’s testimony

would be truthful, he responded negatively. In fact, in the presentence report and

in her request for pretrial diversion, Bullard denies any involvement in the sale.
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Petitioner’s counsel was certainly not ineffective for failing to call a witness who

intended to perjure herself.

In Petitioner’s claim that his counsel was ineffective for failing to demand an

instruction on a lesser-included offense, the Tennessee Supreme Court has held,

as mentioned previously in this opinion, that such a complaint is not cognizable in

a post-conviction petition. See Overton, 874 S.W .2d 6. Moreover, the court

reasoned that “to allow every error committed by the trial court to be recast in a post

conviction petition as an ineffective assistance of counsel allegation would be to

subvert the limited purposes of the post conviction procedure.” Id. at 12.

Petitioner also claims that counsel was ineffective for failing to object to the

State’s references to “unrebutted testimony” during its closing argument and that

counsel was ineffective for failing to argue for jury nullification. Petitioner did not

present any evidence regarding either of these issues at the post-conviction hearing

and has, therefore, failed to show that he was prejudiced in any way by these

actions.

Lastly, Petitioner claims that his counsel was ineffective for failing to object to

testimony regarding Somas. Petitioner’s counsel testified at the post- conviction

hearing that he made a tactical decision not to object to the references because he

did not want to draw attention to them. Even if this was a poor tactical decision,

Petitioner is still not entitled to relief because he has failed to show how he was

prejudiced. The court stated at the post conviction hearing that “he [Petitioner’s

counsel] did not object believing that it was part of the transaction and that it did not

have any impact on the jury and it was part of the strategy, and I see no fault in that.
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It was a pretty clear cut kind of a sale. There wasn’t any question that a sale

transpired.” 

The trial court further stated in its ruling that “there’s [no] showing here that

there’s any deficiency to begin with and any judgment calls that counsel may have

made in this Court’s opinion did not prejudice the defendant’s defense in the case

and I believe he received a fair trial.” We agree with the trial court’s findings. The

evidence contained in the limited record does not preponderate against the trial

court’s finding that Petitioner received the effective assistance of counsel. This issue

is without merit.

Based on all the foregoing, we affirm the trial court’s dismissal of Petitioner’s

petition for post-conviction relief. 

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

L. T. LAFFERTY, Special Judge