# FILED
March 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1998 SESSION

JIMMY DALE HIGH, ) ) APPELLANT, ) ) No. 02-C-01-9702-CR-0 0069 ) ) Shelby County v. ) ) Honorable W . Fred Axley, Judge ) ) (Post- Convic

tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE R. Price Harris John Knox Walkup Attorney at Law Attorney General & Repor ter 3074 East Street 425 Fifth Avenue, North Memphis, TN 38128 Nashville, TN 37243-0497 Deborah A. Tullis Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 C. Alonda Horne Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:_______________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Jimmy Dale High (petitioner), appeals as of right from a judgment of the tr ial court dismissing his post-conviction acti on after an evidentiary he aring. Three issues are presented for review. The petitioner contends (a) he was denied his constitutional right to the effective a ssistance o

f counsel, (b

) certain o mi ssions occ urred during his t rial which entitle him to relief, and (c) the tr ial court failed to address certai n groundsraised during the evidentiaryhearing. After a thorough review of the record , the briefs submitted by the parti es, and the law gover ning the issues

presente d for revie w, it is the opinion of this court that the judgment of the trial cour t should be affirmed.

I. PRIOR PROCEEDINGS

The petitioner was trie

d and convicted o f robbery by a jury of his peers. He was sentenced to serve fourteen (14) years in th e Department of Correction. He subsequently appealed his conviction and sent ence as of right. This court affirmed the judgment of the trial court. State v. Jimmy Dale High , Shelby County No.02-C-01-9312-CR-00275, 1 994 WL 553282 (Tenn. Crim. App., Jackson, October 12, 1994) . The mandate was issued on February 15, 1995. This action was filed on Febru ary 2, 1995. Counsel was appointed to represent the petitioner

on March 6, 1995. An amended petition was prepared and filed by counsel on August 11, 1995. Present counsel w as substituted as

counsel ofrecord on May 16, 1996. An evidentiary heari ng was conducted on Augus t 8, 1996. The trial cou rt filed i ts findings of facts and conclusions of law on September 11, 1996.

II. STANDARD OF REVIEW

When the trial court has conduc ted an evidentiary hear ing to permit a petitioner to3

ventilatethe grounds raised in suppo rt of an a

ction fo r post-convic

tion re lief, the trial court’s fin dings of fact are afforded the weight of a jur y verdict. Dixon v. State , 934 S.W.2d 69, 71-72 (Tenn. Crim. App. 1996); Teague v. State , 772 S.W.2d 93 2, 933-34 (Tenn. Crim

. App. 1988), cert
. den ied , 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989 ). Conseque ntly, this court is bound by the trial court’s findings of fact unless the evidence adduced at the hearing preponderates against thetrial court’s findings. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994), per . app . denied (Tenn. 1995). There are several well -established r ules which govern appel late review in postconviction cases. As this court said in Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), per . app . denied (Tenn. 1990):

First, this Court cannot

reweigh or

reevaluate the evidenc e; nor can we substitute our inferenc es for those drawn by the trial j udge. Second, question s concern ing the cre dibility of th e witnesses, the weight a nd val ue to be gi ven their t estimon y, and the factual issues raised by the evidence are resolved by the trial judge, no

t this Cou rt. Third, the appellant has the burden in this Court of illustrating why theevidence contained in the record preponderates against the judgment entere d by the trial judge.
This court will now proce ed t o consider the merits of the petitioner’s contentions. In doing so, this court w ill apply the aforementioned pr inciplesgoverning appellat e review in post-conviction acti ons to determine whether the evidence adduced a t the hearing preponderatesagainst the trial court’s findings of fact. See Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert
. denied , 44 1 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979). III.

INEFFECTIVE A

SSISTANCE OF C

OUNSEL

The petitioner conte nds the evi dence prepon derates against the trial court’s f indings of fact that he was affo rded his c onstitu tional rig ht to the effect ive assistance of counsel. He argues the evidence adduc ed at the evidentiary hear ing establishes

trial counsel failed to (a) pro perly i nvestigate the case and fil e appropriate motions, (b) c onduct a Morgan4

hearing, (c) object to the testimony of Henr y S. Baker, a co-defendant, when Baker stated
on direct examination the petitioner had been an inmate at the Shelby County Correctional Center, (d) vigorously cross-examine Baker, (e) request the trial court to charge the

range of punishment and the lesser included offe nses supported by the evidence, and (f) object to the uncorroborated testimony given by Baker.

A.
When the petitioner seeks to vitiate a c onviction on the

ground he was

denied his constitutional right to the effective assistance of counsel, the petitioner must establish by
a preponderance of the evidence ( a) the services

rendered or advice g iven by counselfell below “the range of competence demanded of attorneys in criminal cases,” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of counsel enured to the prejud ice of the petitioner. Williams v. State , 599 S.W.2d 276, 279 (Tenn. Crim. App.) , per . ap p . denied (Tenn. 1980). The United States Supreme Court sub sequently adopted this two-prong tes t in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Tennessee ap pellate court d ecisions follo wing Strickland are legion. This court’s review is guided by certai n well-established s tandards. First, the standard created in Baxter does notrequire perfect representation. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Second, it i s not the function of an appellate court to “second guess” trial counsel’s tacti cal and strategic choic es pertainingto matters of defense unless these choices were made without knowledg e of the relevant facts or the law applicable to the issue. Hellard , 629 S.W.2d at 9; McBee v. State , 655 S.W.2d 191, 193 (Tenn. Crim. App.), per . app . denied (Tenn. 1983); see People v. Corona , 80 Cal. App.3d 684, 145 Cal. Rptr. 894 (1978). As the supreme cour t said in Hellard : “[T]he defense attorney’s representation, when questioned, is not to be measured by ‘20-20 hindsight. ’” 629 S.W.2d at 9. Third, an accusedis not deprived of the effective assistance of counsel because a different procedure or strategy might have produced a different result. Williams , 599 S.W.2d at 279-80; Long v. State , 510 S.W.2d 83, 88 ( Tenn. Crim. App.), cert
. denied5

(Tenn. 1974). B.

The petitioner asserts counse l was ineffective because he failed to perform the acts hereina bove set forth. The testimony of the petitioner and counsel conflict regarding these assertions. Moreover, the petiti oner has failed to establish he w as prejudiced assuming arguendo

his assertions are accu rate. Thus, the eviden ce cont ained in the record does not preponderate against the tr ial court’ s f indings of fact. Butler , 789 S.W.2d at 899; Adkins , 911 S.W.2d at 347.
(1)

The petitioner asserts counse l fai led to visit him in the jail a sufficient number of tim es, failed to talk to him on the telephone, failed to conduct proper discovery, fail ed t o talkto potential witnesses, and failed to file sufficient motions. This court will address each of these assertions. The petitioner testified trial counsel came to see him in the jail on two occ asio ns. Both of these occasions were sh ortly before the trial w as to commence. Counsel testified he went to see the petitioner on three or four separate occas ions. The petitioner testified counsel would not talk to him on the telephone and he would disconnect his calls or hang up the receiver whi le talking to him. Couns el testified thepetitioner would call him every time he had telephone privileges. He would call counsel between 8:00 A.M. and 9:00 A.M. practically every

morning and on Sundays. Counsel stated he never r efused to talk with the petitioner. Howev

er, counsel admittedon rare occasions it was possible the petiti oner mayhave been accidentally disconnected or

counsel may have inadvertently failed to take the call. According to counsel, the employees w ho answered the telephone in his office
were instructed not to inquir e who was calling . Thus, counsel never knew who was calling him until he answered the t elephone. The record establishes trial counsel went to the District Attorney General’s Offic e and read their entire file on the petitioner. Later, he returned and obtained copies of6

certain documents. He took thes e documents to the jail and permitted the petitioner to review them. The petitioner admitted he saw his statement, Baker’s statement, a l ist ofthe petitioner’s convictions the state intended to use to impeach him if he opted to testify in support of his defense, and a list of the petitioner’s prior

convictions the state i ntended to
use to enhance his sentence. Counsel also discussed with the peti tioner the evidence the state would introduce if he w ent to trial. In addition, t rial counsel advised the petitioner Baker was going to “dump on him,” meaning testify as a prosecution witness, if he went to trial. The petitioner gave tri al couns el the na mes of three witnesses, and he t old trial counsel what each witness would say if called as a witness.Counsel told the petitioner the testimony

would not be admissible as evidence. The petitioner admit t ed trial counsel talked with a drugcounselor at the Shelby C ounty Correctional Center, who was one of the witnesses

named by the petitioner. C ounsel talked to the rem aining two witnesses prior to trial. These interviews confirmed trial counsel’s initial conclusion that the testimony

of the witnesses would not be admissible. One of the witnesses appeared at the trial “halfhigh.” The petitioner agreed to release this witness. The petitioner did not call these witnesses during the evidentiary heari ng. Assuming arguendotrial coun sel fell bel ow the stan dard expect ed of counsel i n crimi na l prosecutions, Baxter v. Rose , supra , the petitioner has failedto establish prejudice by not producing the witnesses at the evi dentiary hearing. Black , 794 S.W.2d at 757-58. The petiti oner ass

erts co unsel fa i led to file appropriate motions.However, the petitioner

has failed to (a) esta blish the motions trial counsel s hould have filed and (b) show how he was prejudiced by the failure of counsel to file these motions. In summary, the petitioner has failed to establish trial

counsel’s representation fell below the standard established in Baxter v. Rose , supra . Also, thepetitioner has failed to establish how he was

prejudiced. Strickland v. Washington , supra.

(2)

The petitioner asserts tri al counsel was ineffective because he failed to conduct a7

Morgan hearing. Trial counsel advised the trial court he wanted a Morgan hearing before he cross-examined Baker. While both the assistant distri ct attorney general and the trial court advised counsel a Morgan hearing was to determine the admissibili ty of an accused’s prior convictions, the trial court to ld counsel he woul d conduct the h earing. Counsel then advised the court such a hearing would not be necessary. This court must assume this is the hearing which the petitioner has raised in hi s petition. The assistant district att orney general asked Bak er about his prior conv ictions during a jury-out hearing. He told Baker trial counsel would questi on him about his prior convictions. The assistant district at torney general elicited all

of Baker’s prior convi ctions during direct examination. Tri al counsel also ques ti oned Baker about these same prior convictions. Neither counsel objected to the admissibility of these convictions. In summary, a Morgan heari ng, or any hearing o f a like or similar natur

e, was not necessaryin this case. The assistant di st rict attorney gener al stipulated to the prior convictions

and asked Baker about these convictions. Defense counsel was permitted to asksimilar

questions during cr

oss-examination. Thus, the petitioner has failedto establish either that trial counsel fell bel ow the Baxter v. Rosesta ndard or the petitioner w as prejudiced in this regard. (3)

The petitioner asserts

trial counsel failed to obj ect to Baker’s testimony as i t related to the petitioner’s “prior criminal history or status at the time” of the robbery. The record reflects the petitioner and Baker w ere inmates at the Shelby County Correctional Center. During a work detail, the peti tioner and Baker escaped. They committed the robbery of a convenience store a few day s later. Baker stated on di rect examination: Q. You know Jimmy Dale High, is that cor rect? A. Yes, sir. Q. Okay. I believe bac k in 1991 you-all escaped from the penal farm together; is that co rrect? A. Yes, sir. Q. Would you tell the jury about your escape and what you-all did as far the Circle K robbery on 1440 Getwell?8 A. When we esc aped from the -- walked off from the Mi dAmerica Mall on work call, it was a lot of things that happened up to a point. It was at one point, as far

as the robbery goes, we was in a truck.
Trial counsel was not ineffective because he failed to object to this testimony. This evidence was admissible to establ ish why the petition er and Baker were toge th erwhen they committed the robbery of the conv enience store; the evidence was therefore relevant to establish a material fact. See State v. Adkis son , 899 S.W.2 d 626, 646 (Ten n. Crim. App. 1994). Moreover, i f this issue had been considered on direct appeal, it would ha ve be en categorized as harmless error given the wealth of evidence establish ing th e petitioner’s guilt. Tenn. R. App. P. 36(b).
(4)

The defendant asserts counsel was ineffective becaus e h e failed to vigorously cross-examine

Henry S. Baker, the accomplice. He refers to counsel’s cross-examination as “inadequateand lackadaisical.” This court hasread the testimony of Henry S. Baker. The r e cord reveals the cros s-examination of Baker w as thorough, penetrating, and complete. Trial counsel questioned Baker at length. He esta blished numerous conflicts between Bake r’s trial testimony and the statement he gav e to the police after his arr est. He questioned Baker regarding his prior convictions. In addition, counsel used Baker’s testimony

to mitigate the

petitioner’s involv

ement in the robbery. The cr oss-examination
was methodical, and it is obvious trial counsel was well prepared to cross-examine Baker.
(5)

The defendant asserts trialcounsel was ineffective because he did not pursue the convictingtrial court’s failure to charge the lesser included offense of theft under $50 0. The petitioner

failed to establish what trial counsel could have done to pursue this matter. Baker had told the polic e he did no t have a weapon, he did not intimate he had a9

weapon, and he did not coerce the vi ctim. The amount taken was $28. Of course, Baker’s trial testimony established he placed his hand in his back pocket, and he told the victim he did in fact have a weapon. Trial counsel moved the trial c ourt to instruct the jury on theft und e r $500 based upon his cross-examination of Baker. The trial court refused to give the inst ruction. This issue was litiga

ted in the petitioner’s appeal as of right. In summary, trial counsel protected therecord regarding this instruction, and it was raised on appeal. This court held such an instruction was not warranted. Counsel certainly could not coerce or compel either the trial court or the appel late court to grant him r eliefon this issue. (6)

The petitioner asserts counse l was ineffective because he failed t o object to the uncorroborated testimony of Henry S. Bak er, an accomplice of the petitioner. He has failed to estab lish a valid basis fo r objecti ng to this t estimon y. This court seriously doubts trial counsel could initially o bject to B aker’s te stimony. Baker was a competent witness, he had firsthand knowledge of the events in controver sy, and h is testimony

was both material and rel evant to the crime. If the stat e failed to corroborateBaker’s testimony, tr ial counsel could have mov ed to strike Bak er’s test imony, or, in the altern ative, moved the trial court for the entr y of a judgment of acquittal on the ground the only testimo ny connecting the petit ioner to the robbery was Baker’s uncorrob orated t estimon y. While this court ag ree s Baker was an accompli ce of the petitioner as a matter of law, and the trial court sho uld have given an in struction on the need to corr oborate the testimony

of an accomplice, this recor d is insufficient to dete rmine whether such an instruction was given to t he jury. The charge of the trial court is not included in the record transmitted to t his court. Tenn. R. App. P. 24(b). In any event, the r ecord establishes Baker’s testimony was corr oborate d. T he petitioner’s statement to the police was introduced into evidence. This state ment established the petitioner was wi

th Baker when the robb ery occurre d. Otherwi se, the p etitione r’s state ment was e xculpato ry.10 IV. CONVICTING TRIAL COURT OMISSIONS

The petitioner contends the trial court committed egregious error which resulted in his conviction. He all eges the court (a) gav e an inadequate charge to the jury because the charge did notinclude certain lesser included offenses raised by the evidence, (b) allowed the uncorroborated testimon y of Baker to be disseminated to the jury, and (c) failed to include a constitu tional re asonabl e doubt i nstructi on in the charge given to the jur y. These grounds have either been previously determin ed or waived. Tenn. Cod e Ann. § 40-30-112 (repealed 1995). A ground has been previous ly det ermined w hen “a court of competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-112(a)(1990) (repealed 1995). As to waiver, the appli cable statute, Tenn. Code Ann. § 40-30-112(b)(1)and (b)(2) states: A ground for relie f is “wa ived” if the petitioner k nowingly and un derstandinglyfailed to present it for determination in an y proceeding before a court of competent jurisdiction in which the ground could have been pr esented. The re is a rebuttable presumption that a ground for relie f no t raised in any such proc eeding which was held was waived.
These grounds coul d have been raised during the tr ial and on appeal. Moreov er, the petitioner did not offer any proof to rebut the waiver of these issues. This court views this issue as an attempt to obtain appellate review of these grounds. It has long been establis hed in this jurisdicti on thata post-conviction pro ceeding cannotbe used as a substitute for an appeal. Swanson v. State, 749 S.W.2d 731, 733 (Tenn. 1988); State v. McClintock , 732 S.W.2d 268, 272 (Tenn. 1987); Rhoden v. State , 816 S.W.2d 56, 63 (Tenn. Crim. App.), per . app . denied (Tenn. 1991). This issue is without merit.
V.

POST-CONVICTION TRIAL COURT OMISSIONS
The petitioner contends the post-conviction tri al court failed to rule on al l issues he11

raised at the evidentiary hea ring. He argues the court failed to address paragraphs B through E contained in his petition,and the court further failed to determine the meri ts of “the oral amend ments” made d uring the evidenti ary hearing. The evidentiary hearing transcript reveals

petitioner’s counsel sta ted:
And I’d like to also -- w

e’ll amend that it is time t o include or to broaden that to include that we are requesting

instruction from the Court as to lesser pleade d offen ses. Itmay have been clearer, for examp le, faci litation to commi t a felon y.
The petitioner does

not cite the page or pages where paragraphs B th rough E are located in the record. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Thus, this court must assume the petitioner makes reference to

the followinggrounds contained in the pro se petition : (a) “inst ruct the j ury a s to ac complice testimony,” (b) allowing “uncorroboratedaccomplice testimony to be used to conv ict the petitioner,” (c) “properly instruct the jury as to the corroboration rule of an accomplice’s testimony,” and (d) his “rights to due process were v

iolated when the jury was not i nformed of the plea deal of the co-defendant.” A.

The law applicable to th e proceedi ngs in this case prov ides that post-convicti on actions were c

ommenced

by the fi ling of a “written petition w ith the clerk of the

court where the conviction occurred.” Tenn. Code Ann. § 40-3 0- 103(a)(1990) (repealed 1995) . The pe titioner

was entitled to amend the petition. Tenn. Code Ann. § 40 -30-107(1 990 ) (repealed 1995). While the statute does not state the amended petition must be in written form, the statute by implicati on requires the amended petiti on to be in written form because the statute states the petitioner is to “file” the amended petiti on with theclerk. Tenn. Code Ann. § 40-30-107(1990) (repealed 1995). This statute relates back to the s tatute requiring the filing of a written petition. In this case, the initial petition was filedon February 2, 1995. The first attorney was appointed to represent the petitioner on March 6, 1995. Counsel fil ed an amended petition
on Aug ust 11, 1995. Present counsel w as substituted as counsel of rec ord on May 16, 1996. The evidentiary heari ng was held on August 6, 1996. Thus, th e petitioner had12

eighteen months to amend his petiti on. Pr esent counsel had almost three months to further amend the petition. The record does not reflect a motio n and/or order pertaining to an amendment. Nor did the petitioner make an oral moti on which specifically requested permission to amend the petition. Furthermore, the petitioner did not file a written amendment during or after the evidentiary hearin g. In summary, t he petitioner had ample time to amend his petition in w ritten form. This court will not cons ider any issue raised by

an oral amendment unless the trial court specifically states on the face of the record it is permis sible.

B.

This court wil l now

address whether paragraphs B through E of the petition were adequately addressed by the trial court.
(1)

The ground predicatedup on the failure to instruct the jury has been raised i n the context of the trial court’s effectiveness within the meaning of the Si xth Amendment

to the United States Constitution and Arti cle I, § 9 of the Tennessee Constitution. This issue has also been raised in the

context of the trial court’s “al lowance of uncorroborated tes timony of the co-defendant to be disseminated to the jury.” This ground has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and ( b)(2) (1990) (repealed 1995). The petitioner has failed to offer evidence rebutting th e presumption of waiver. Also, a post-conviction actio n cannot be used as a substitute for an appeal. Swanson , 749 S.W.2d at 733; McClintock , 732 S.W.2d at 272; Rhoden , 816 S.W.2d at 63. (2)

The petitioner asserts the pos t-conviction court fail ed to consider the convicting trial13

court’s allowanc e of “un corroborated accomplice tes timony to be used to convi ct the petitioner.” This issue has been previously di scussed in this opinion. Again, this issue has been wai ved. Tenn. Code Ann. § 40-30-112(b)(1) and

(b)(2) (1990) (repealed 1995). The petitioner failed to offer ev id ence to rebut the presumption of waiver. Further

more, th is proceeding cannot be used as a substitute for an appe al. Swanson , 749 S.W.2d at 733; McClintock , 732 S.W.2d at 272; Rhoden , 816 S.W.2d at 63.
(3)

The petitioner asserts the pos t-conviction court fail ed t o consi der the error of the convictingtrial court in omittin g an instruction regarding the necessity of corrobor ating the testimo ny of an ac complice . This grou nd has be en discus sed previo usly. As this court previouslynoted, the record is insufficient to permit a review of this issue. The trial court’s charge has not been included in the rec ord transmitted to this court. Tenn. R. App. P. 24(b). If the charge had been incl uded in th e record, this court would not consider this ground. It ha s been waived . Tenn. Code Ann. § 40-30-112(b)( 1) and (b)(2) (1990) (repealed 1995). The petitioner has offered no e vid ence to rebut the presumption of waiver. Also, a post-conviction action cann ot be used a s a substitute for an appeal. Swanson , 749 S.W.2d at 733; McClintock , 732 S.W.2d at 272; Rhoden , 816 S.W.2d at 63.
(4)

The petitioner asserts he was denied due process of law because “the jury was not informed of the plea deal of the co-defend ant,” Henry S. Baker. The petitioner established the plea agreement ultimately reached between the

state and Baker. However, the record is devoid of evidence as to when the agreement wa s reached.14 During trial counsel’s cros s-examination of Baker, the foll owing colloquy occurred: Q. Now, Mr. Craft asked you if you’v e been offered any deals or pleas o r whateve r in connection with this matter, did he not? A. Yes, sir, he did. Q. An d I b elieve he asked you, other than something in exchange for your testimony, other than something that’s already been offered to y ou ri ght? Did he ask you that? A. Yes, sir. Q. You’ve been made an offer to plead guilty in this case, have you not? A. Yes, sir. Q. Sir? A. Yes, sir. Q. How much time were you offered to plead guilty in this cause? A. Six years.
As can be seen from the foregoing colloqu y, the offer made by the state to B aker
was before the trial court an d the jury . Of course, the trial cour t could have rejected the plea agre e ment: Whether Baker should have been released on probation or under the Community Corrections Act rested within the s ound discretion of the trial c ourt. This issue is without merit.

_________ _____________________ _____________

_ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ JOHN H. PEAY, J UDGE

______________________________________ THOMAS T. WOODALL, JUDGE