1 The petitioner’s co-defendant, Richard Bruce Halfacre, wa s also c onv icted o f felon y m urd er an d esp ecially

aggravated robbery. The petit ioner and Halfacr e recei ved the same sentence. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs O ctober 17, 2001
BLAKE E. HALLU M v. STATE OF TENNESSEE Post-Conviction Appeal from the Criminal Court for Davidson County

No. 94-D-2286 J. Randall Wyatt, Jr., Judge

No. M2001-00569-CCA-R3-PC - Filed July 31, 2002

A Davidson County jury

convicted the petitioner, Blake Edward Hallum, of felony murder and especially a

ggravated robber

y, and the trial court sentenced the petitioner to serve consecutive sentences of life im

prisonme nt for his f

elony murder c onviction

and 17 y ears fo r his especially aggravated

robbery c onviction. 1 The petitioner appealed hi s convi ctions to this Court, and we affirmed the judgment of the trial court. See State v. Richard Bruce Halfacr e , No. 01C01 -9703-CR00083, 1998 Tenn. Crim. App. LEXI S 1117, at *1 (Tenn. Crim. App. at Nashville, Oct. 29, 1998). The petitioner sought

post-conviction relief, and the trial court denied his petition after a hearing on the merits. Th e petitione r now appeals the trial court’s denial of his petition for post-conviction relief, alleging that he

is entitle d to post-c onviction relief b ecause

a state’ s trial wit

ness testified at the post-conviction hearing and contradicted he r trial testimony, invoked her F ifth Amendment

right agains tself-incrimination, and/or pl ea ded lack of memory in response to questions about the truthfulness of her trial te st im on y. After reviewing the rec ord and applicable case law, we find that the petitioner’s claim does not merit relief. Tenn. R. App.P. Appeal as of Right; Judgment o f the Cr iminal Cour

t is Affir med.
J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.
Michael Noel, at trial and sentencing; and David A. Gol d, po st-conviction, Nashville, Tennessee, for the a ppellant , Blake E. Hallum.
Paul G. Summers, Attorney Ge neral & Re porter; J ohn H. Bled soe, Assis tant Attor ney Gene ral; Victor S. Johnson, District Attorney General; and Katrin M ill er, Assis tant Distr ict Attorn ey Gene ral, for the appellee, the State of Tennessee.-2- OPINION
Factua l Background
On direc t appeal , this Court summarize d the facts of the in stant ca se as follows:
On July 20, 1994, Mar

y V illarea l spent the evening watching televisio n with

her son, the victim , R ick Villareal. The victim was in possession of a briefcase, whic h containedabout $1000 in cash which he had just received from the sale of a washe r, a dryer a nd a car. When he left the resi dence at approximately 10:30 p.m., he w as also w earing s everal pieces of jew elry: two weddi ng band s, a ru by ring, a diamond ring, a gold link bracelet, a wa tch, and a gold chain. About five hour s later, O fficer

Jack Rober

t Campbell

was dispa

tched to i nvestig ate a report that a “man [was] down” at the park. Gary Honeycutt led

Office r Campbell to the victim, who was lying unc onscious on the ground. Officer Campbell o

rigina lly believedthe victim either had too much to drink or was su ffering

from some

type of seizure and arranged for the victim to be transporte d to the hospital. Later, he learned the victim had sus tai ned a fa tal head injury and had d

ied only hours af ter his hospitalization. Steven Huffine s, who was serving time in the

Sumner Cou

nty Jail at the time of tria

l, r ecalled that both defendants visited his residence during the ear ly morni ng hour s after the assault of the victim. They w ere carry ing a briefcase which

contained over $500, some jewelry a

nd some papers. He testified th at defendant Halfacre cla imed to have found the briefcase on the side of the roa d. The defendant Hallum

is the great uncle of one of the c hildren of Sherry

Hayes, who had been close friends to both defendants for about seve n years. O n the a fternoo n after the shooting, the defendant Halfacre called Ms. Hay es and asked her to meet the defenda nts at the Megamarket in Hermitage and to provide them

each transportation. When she a

rrived, the defe

ndants, who were in possession of a briefcase, indicated that the y needed to get rid of the briefca se and then leave Nashville. Hallum, who was in the back seat, cried and stated that he neve r meant to hurt

any one. He t

old Ms. Hayesthat he had waited in the woods at th e park w hile Halfac

re sat on a picnic table and had observed Halfacre lead the vic tim “into the woods.” H allum info rmed Ms. Hayes that the victim “was up on his knees when they left.” Ms. Hayes, who ha

d prior convictions for theft and frau dulent use of a credit card, drove t o a location in LaVerg ne, where the defendants walked to the woods a nd burnedthe briefcase. L ater, the t hree went to a r

estaura nt and the

defenda nts explained that they

needed to leave the state to avoid spending the rest of their lives in jail. The de fendant s sp ent that night at her apartment. While there, defenda nt Hallum removed the telephone from the wall. James McGaug

h, owner of Shipley

Donuts, r

ecalle d that the

defenda nt Half a cre workedfor him ab out one y ear bef ore he w as termin ated in July of 1994. I

n August of 1994, McGaugh received a claim from Halfacre for unemploy ment benefits. The claim was mailed from Los Ang eles, California.-3-

Detective Alfred G

ray , who was assi gned to i nvestig ate the mu rder, eventuall

y learned both defendants were

in California. Halfacre returned to Nashville and wa s arrested. Defendant Hallum was arrested in California almost eleven months after the murder. Dr. Mona Har

lan, who p erformed an autop sy o n the vict im, testifi ed that the victim had suffered a large subg aleal hematoma between his scalp and skull. The victim also suffered bruises to his left eye, c

uts inside his lip, a bruise and scrape on his right wrist, and a scrape on his cheek. Dr. Harlan stated that the hematoma to the skull, the cause of death, was caused by “one big blow” with a blunt object, such as a bat.
RichardBruce Halfacre , 1998 Tenn. Crim. App. LEXI S 1117, at *1. As mentioned supra , the petitioner and his co-defendant, Halfacre , both received a t ri al by j ur y, resulting in convictions for felony-murde

r and especia

lly a ggra vated ro bbery , and the a

foreme ntioned se

ntences . At the po stconviction heari ng, a st at e’ s t ri al wi tn es s, Sh er ry H aye s, re ca nt ed po rt io ns of he r t ri al te st im on y, stating that she did not testify truthfully when she testified at trial that the petitioner had confessed to her that he committed the charged off enses. The trial court info rme d Ms. Hayes of the consequences of admitting to having perjured oneself, and the court stated that it would disregard Ms. Hay es testimo ny t

hus far a nd rece ssed in

order to allow Ms . Hay

es to reta in and con sult with counsel before waiving her F ifth Amendment right against self-incrimination.

When the trial court resumed the post-conviction hearing on a different date, the court noted that Ms. Hay es had be en appoin

ted couns el and tha

t she had e xecuted a second a ffidavit that outlined her knowledge of the events at issue and that repudia ted her first affidavit, which she had made prior to the petiti oner’s t

rial. Ms. Hayes testified that the prosecuting attorney threatened her before the petitioner’s trial, causing her t o testify about things to which she did not have knowledge. She claimedthat the prosecutor threatened to have her childre n remove d from he

r custody if she did not testify truthfully at the petitioner’s trial and that the p rosecut or attempted to persuade her to testify about subjects that were outside her knowledge. Ms. Hayes also stated tha t she testified at trial about subjects within her knowledge, but invoked her Fifth Amendment right against self-incrimination when questioned about whether shetestified about subjects that were outside her knowledge. She also testifie d that whil e she had seena maroon briefc ase alle gedly

belong ing to the

victim, she

did notsee the petitioner and his co-defendant burn the briefcase. She also st ated tha t the petit ioner did notpull her telephone out of the wa ll on the nig

ht of the c rimeand that he never kicked her door in.
The prosecuting attorney testified that he had several conversations with Ms. Ha ye s prior to the petitione

r’s tr i al and that a victim-witness coordinator had been present dur ing all such convers a tions. The pros ecutor a lso testif ied that he did not th

reaten to take Ms . Hay

es’s c hildre n away f romher if she did not testify as he wished her to te stify ; he was o nly concer ned that s he tell a truthful v ersion of

the even ts. The victim-witne ss coordinator al so testifi ed that the prose cutor didnot make any such thr e ats and that he di d not enco urage Ms. Hay es to testi fy

about subj ects beyond her knowledge. An officer who was involved in the inv estigation of the instant crimes testified that he interviewed Ms. Hayes after she came forwar d with information about the crimes and that she assisted the police in their efforts to apprehend the petitioner. The officer further testified that he di d not threaten Ms. Hay es or suggest that she testif y in accord ance with his wishe s, nor did he

ever wit ness the p rosecut or threa ten Ms. Ha

ye s.
The trial court denied the petition for post-conviction relief, finding that Ms. Hay es sta ted at the hearing that her

trial testimony

was truthful and that the petitioner was therefore not entitled2 The pro per m etho d of prese nting argu me nts suc h as th ose ra ised h ere is b y a w rit of er ro r co ra m n obis, Tennessee Code An nota ted S ection 40- 26- 105 . Altho ugh this pro ced ure h as a 1 year statute o f limita tions [s ee, State
v. Mixon , 983 S.W .2d 661 (T enn. 1999 )] that l imitations period may be tolled wh en certain due process concern s are impli cate d. See e. g. W ork ma n v. S tate , 41 S .W .3d 1 00 ( Ten n. 20 01) . Mo reov er, the p etitione r here in m ay p resen t his (con tinue d...) -4- t o relie f on th at grou nd. Th e peti tion er now a ppeal s the t rial c ourt’ s deci sion , argu ing that Ms

. Hayesdid in fact indicate that her trial testimony was not truthful and that the petitioner’s conviction is thereforevoid. We find that the petitioner’s conviction is not void on this basis because recanted testimony is not a proper basis for r eceiving post-conviction relief.

Post-Conviction Standard of Review
When ana lyzing the iss ue raise d, we fir st note tha t a petitio ner brin ging a

post-con vic tio n petition for reli ef bear s the burd en of pro ving the

allega tions asse rted in the

petiti on by clear

and conv incing evidence. See Tenn. Cod e Ann. § 40 -30-210(f); Hicks v. St ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). “Evidence is clear and convincing when there is no serious or substantial doubtabout the

correctness of the conclusions drawn from the evidence.” Id. at 245 (citi ng Hodges v. S.C. Toof & Co. , 833 S .W.2d 896, 9 01 n.3 (Te nn. 1992) ). Furth

ermore , the appe

llate cou rt is bound by t

he trial c ourt’s findings o f fact, unless the record prepond erates agains t those findin g s. Hicks , 983 S.W.2d at 245.
Recanted Testim ony
As discussed supra , the petitioner argues that he is entitled to receive post-conviction relief based upon the post-conviction hearing testimony of Ms. Ha

ye s in which she recanted portions of her incriminating trial testimony. However, e ven if we were to disagree with the trial court and find that M s. Hayes did indee d recant portions of her trial testimony at the post-conviction heari ng , recanted trial testimony

does not entitle a petitioner to receive post-conviction relief.
The Post-Conviction Procedure Act states that a petitioner

may seek r

elief under the act for an abridgement of a constitutional right. Tenn. Code Ann. § 40-30- 203. However, in the i nstant case, the petitioner is not claiming an abridgement of his constitutional rights, but rathe

r asking this Courtto grant post-conviction relief on the basis of newly discovered evidence, spe c ifically Ms. Hayes’ s re ca nt ed tr ia l t es ti mo ny. Howeve r, this Cour

t has held that “re canted t

estimony amounts to no more than a request to relitigate the sufficie ncy of the e

vidence at trial and is not a prope r subject of post-conviction relief.” Teresa Deion SmithHarris v . State , No.W2000-02611-CCA-R3- PC, 2001 Tenn. Crim. App. LEXI S 604, at *3 (Tenn. Crim. App. at Jackson, June 13, 2001) (citing Haynesv. State , No. 01C 01-9803- CC-00142, 1999 Tenn . Crim. App . LEX IS 200 , at *8 (Te

nn. Crim. App. at Nashville, Mar . 11, 1999) ). It h as lon g been

establish ed under Tenness ee law th at a petitioner may not litigate the sufficiency of the evidence through a post-conviction petition. See , e.g. , Workman v. State , 868 S.W.2d 705, 711 (Tenn. Crim. App. 1993). Consequently, we will not allow the p etitioner to u se the introduction of recanted testimony as a vehicle for relitigating the sufficiency

of the evidence. Thus, this issue does not merit post-conviction relief. 22 (.. .continued)

clai m to the Gover nor of Tenne ssee , i n an appl icat ion for execut ive c lemency. -5- Conclusion
For the foregoing reasons, we find that none of the petitioner’s allegations merit relief. Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE