# FILED
May 26, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1998 SESSION

JAMES E. KENNER, ) ) Appellant, ) No. 01C01-9709-CR-00424

) ) Davidson County v. ) ) Honorable J. Randall Wyatt, Jr., J udge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Robert J. Mendes John Knox Walkup Cummins Station, Ste 507 Attorney General of Tennessee 209 Tenth Avenue South and Nashville, TN 37203 Timothy Behan Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Nick Bailey Assistant District A

ttorney General Washington Square, 222 2nd Ave. N. Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, James E. Kenner, appeals as of right from the Dav idson County Criminal Cour

t’s denial of his petition for post-conviction reli ef. The petitioner seeks rel ief fro m his 199 4 convicti ons for f ive counts of aggrava ted burgl ary and fi ve counts of theft. He was sentenced as a career off ender to fifteen years confinement in the Department of Correction for each aggravated burglary conviction and twelve years for each theft conviction. The ag gravated burglary sentences were ordered t o be served consecutivel

y to each other but concurr ently with the corr

esponding sentences for theft, for a total sentence of seventy -five years. This co urt affirmed the convictions in State v. James E. Kenner, No. 01C01-9503-CR-00052, Davidson County (Tenn. Crim. App. Feb. 13, 1996). The petitioner now raises the following issues:

(1) whether his attorne y was ineffective on direc t appeal for failing to contest the tr ial court’s denial of the petitioner’s motion to sever the offenses; (2) whether his attorney was ineffective on direc t appea l for failing to raise the sufficienc y of the evidence; (3) whe ther the prosecutor’s comments during closing argument violated his constitutional rights; (4) whether the failure of the indi ctments to statethe applicable mens rea violated his constitution al rights and whether his attorney was ineffective for failing to raise the issue

on appeal; (5) whe the r the reasonable doubt jury instruction violated his constitutional rights ; and (6) whether hi s con victions are unconstitutional because the jury did n ot sign the

verdict fo rm. We affirm the trial c

ourt’s denial of the pet ition fo r post- convic tion re lief.
At the evidentiary hear ing, David Baker tes

tified that he represented the petitioner before trial until the petitioner requested that the trial court appoint him another attorney. He sai d he did not specifically remember discussing the sufficiency of the indictment with the peti tioner, but he was sure that he did. He said he conduct ed3

discovery and filed a motion to sever the offenses based upon the state’s inability to demonstrate that the offenses were par t of a common scheme or plan. He said that at the motion hearing, he did not r emember the state calling any witnesses; rather, the state relied on legal ar

gument. He said he believ ed that the petitioner woul d be prejudiced if the cases w ere not severed.
Mr. Baker testified that the petitioner was charged with five burglaries. He said that the petitioner w as caught at the crime scene of one of the burglaries, but in the other four, the only evidence was the petitioner’s fingerprints found at the scene. He testified that the fingerprint evidence was more damag ing because there were four sets of fingerprints in four of the offenses as oppo sed to only one set of fingerpr ints in the remainin g offen se. He sta ted that if he had remaine d on the ca se, he wou ld have appealed the trial court’s denial of the motion to sever.

On cross-examination, Mr. Baker testified that the petitioner fired h im because he could not negotiate a better plea bargain and poss ibly because the petitioner felt Mr. Baker did not communicate with him. He stated that the plea bargain that was offered by the state i nvolved a lesser se ntence than the petitioner recei ved at the sentencing hearing. He testified that the petitioner had prior felony convi ctions, and he agreed that the petitioner probably knew he w as facing a long sentence and wanted an attorney to tell him he w ould not spend a long time in j ail. He said that based on th e petition er’s recor d, he kne w the petit ioner woul d likely rec eive mult iple cons ecutive sentences.

Mr. Baker testified that he k new the burglaries o

ccurred in the same area of town, possibly within one mile of each other, and that they occurred in March, April and May of 1993. He said the methods of entry for each bu rglary differed because although a door was alw ays kicked open, sometimes i t was a front door and sometimes4

it was a back door. H e said that in all five bur glaries, a televi sion was taken, and in four of the burglaries, a stereo and VCR were taken. He testified that the petition er’s fingerprints were found at the scene of every burg lary. He said that Al len Barrett, an attorney and former FBI finger print analyst, exami ned the fingerprints and concl uded that the police correctly matched the fingerprints found at th e crime scenes with those of the petitioner.

Monte Watkins testified that he was appointed to represent the petitioner on July 20, 1996. He said he copied Mr. Baker’s file and discussed the case with Mr. Baker. He said he thought the fingerprint evidence was the most critical issue, and he met with Allen Barrett and reviewed crimi nal defense techniques regar ding fingerprints. He said he concluded that the peti tioner did not have a good chance of prevailing at trial.

Mr. Watkins testified that he did not discuss the sufficiency of the indictment with the petitioner. He said he read Mr. Baker’s motion to sever, the state’s response, and the trial cour t’s denial of the motion. He sai d he knew the motion was denied because a common scheme or plan w as evidenced by the cl oseness in location and time of the burglaries. H e said the state’s response t o the motion set forth the addresses and the distances betw een the burglaries. He said he did not consider appealing the denial of the motion t o sever because he did not th ink it was an appropriate issue. He sai d he had reviewed hundreds of cases on this issue, and the petitioner’s case fit sq uarely with the cas es he had reviewed. H e said the petitioner sent three letters to the Board of Professional Respo nsibility complaining about his lack of communication with the petiti oner. He said he sent the petitioner copies of everything and tri ed to communicate with the peti tioner throughout the tri al and appeal.5 Mr. Watkins testified that he did not know what he would have done differently had the cases been severed. He said he did not recall a police repo rt indicating that in one of the bur glaries, none of the fingerpr ints found matched the petitioner’s fingerpri nts. He said he was not aware of police reports i ndicating that there had been another suspect in the burglaries. He sa id that if he had been trying the offenses separately, he would have tried to raise the

possibility of another s uspect, and he would hav

e argued mor

e vigorou sly that t he fingerpr ints from one o

f the crime scenes were initial ly unidentifiable. He sai d, however, that he did not believe an extensive cross-examination on the fingerprints would have been very helpful because the petitioner’s fingerpr ints had a high number of matching points to the fingerprints found at the burglaries.

On cross-examination, M r. Watkins testified that he did not have any problems with the petiti oner until after the trial. He said that during tr ial, the petitioner had no requests or objecti ons regarding his per formance. Mr. Watkins testified that he discussed with the petitioner the possible sentences and the fact that the petitioner qualified as a career offender. H e said the petitioner told hi m he would rather be tri ed by a jury tha n plead gu ilty and re ceive thir ty years in ja il. He said he could n ot have gotten the offenses tried separatel y because the trial cour t had already denied the motion to sever. He sai d that if, during the course of the trial, the proof had shown no common scheme or plan, he would have asked for a severance , but he said the proof was exactly as the state said it would be.

Mr. Watkins testified that he spoke with Allen Barrett about the fing erprints and that Mr. Barrett said the petitioner’s fingerpr ints matched those found at the scenes. Mr. Watkins said the only thing he would do differently at trial would be to advise the petitioner more strongly that a plea agreement was in the petitioner’s best interest, but he said the petitioner would not have a ccepted a plea agreement.6 The petitioner testified that he di d not recall having a ny conversations w ith Mr. Watkins between the trial and hi s sentencing hearing. He said they never discussed whether ev

idence would be presented at the hearing, and he said he nev er spoke with Mr. Watkins about his appea l. He said he did not find out that Mr. Watkins had filed a notice of appeal until he w rote to the Board of Professional R esponsibility requesting that Mr. Watkins send him a copy of his file. He sai d he never discussed the sufficiency of the indictment, severance, fingerprint issue s, or prosecutorial misconduct during closing arg ument with either Mr. Watkins or Mr. Baker.

On cross-examination, the petitioner testif ied th at he could not recall what Mr. Watkins should have done but did not do between trial and sentencing. He said he wanted Mr. Watkins to consult with him about appell ate issues, but he could not recall what issues he wanted to r aise, other than prosecutori al misconduct. He said he c omplained to the Board of Professional R espons ibility because Mr. Watkins was not representing him properly. He said he did not know i f the complaints were dismi ssed. He said he did not know of anything Mr. Baker could have done that he did not do regarding a severance. He said he did not know of any miti gating evidence that co uld have been presented at the sentencing hearing that was not pr esented

. He said he was never of fered a t wenty-five year plea agreement by either attor ney, but he could not say that he would have taken the offer. He said he did not know that he was a strong candi date for cons ecutive sentenc ing.

Based on the foregoing evid ence, the trial court issued a det ailed order denying the petition for post-conviction relief. The trial court stated as fo llows:

The court . . . o bserves that counsel addressed the most significant

an d real istic issue on appeal, the a lleged excessiveness of petit ioner ’s sentence. Counsel’s actions in this regard were certa inly appropriate . . . . Obvious ly, counsel could have attempted to raise any of the issues now suggested bythe petitioner. However, the Court is of the opinion that an appellate challenge to tho se issues was not ad equ a tely supporte d by t he trial re cord or by th e applica ble law. Accordin gly, the Court cannot say that counsel’s deci sion not7 to pursue the issues

now alleged by peti

tioner is an indication of deficient performance. With regard to the

s everance motion . . . the Co urt observes that prior counsel . . . diligently pursued the issue. After a hearing on the mat ter, the Court denied the sever ance . . . . [Appellate] Counsel reviewed the severance issue closely and concluded that joinder of the offenses was appr opriate. In the Court’s judgment, Counsel Watkins , based on years of experience as a criminal defense attorney and his understanding of the law and the particular facts of this case, made a n i nformed and reasoned decision not to pur sue the issu e on appeal, a decision that does not warrant seco nd
guessing by this C

ourt. Accordin gly, the Court observes that the pe tition er has produced no credible evide nce that counsel’s representati on on the appeal was deficient or that he suffered any prej ud ice from any alleged errors by counsel.

. . . . Next, the Court is of the opinion that the district attorney’s remarks during closing

arguments regarding

witness credibili

ty and the p resum ption of innocence, although not complete ly ap propriate, when considered in the context of the distric t attorney’s entire arg ument, were not in any w ayprejudicial to the outcome of the trial. See Judge v. State , 539 S.W.2d 340, 343 (Tenn. Crim. App. 1976).

. . . . Next, the Court recognizes that the u se of the term “moral certaint y” in conjunction with the term “let the mind rest easil y” in defining reasonable doubt comport s with state and federal constitutional due process requirements. See State v. Nichols , 877 S.W.2d 722, 73 4 (Tenn. 1994).

. . . . Next, with regard to petitioner’s challenge of the sufficiency of the indict men t, the Court observes th at this issue is wi thout merit

. . . . The indictme nt at issue, which t racks the language of the respective statute, is, in this Court’s judg ment, consiste nt with the requireme nts of th e law.

I. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that his attorney was ineffectiv e for not appealing the trial court’s denial

of the petitioner’s motion to sev er and for not raising the8

sufficiency of the evidence. The s tate contends that the trial c ourt correctly concluded that the petitioner receiv ed the effective assistance of counsel . We agree.

Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel's performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied, as w ell, to the right to counsel under Article I, Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874 (1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert. denied , 444 U.S. 944 (1979). Also, in reviewing c ounsel's conduct, a "fair asses sment of attorney performance requir es that every effort be made to el iminate the distorting effects of hindsight, to reconstru ct the circumstances of counsel 's challenged conduct, and to evaluate the conduct from cou nsel's perspective at the time." Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct wi ll not be measured by "20-20 h indsight"). Thus, the fact that a particular strategy

or tactic failed or eve n hurt the defense does not, alone, suppor t a claim of ineffective assistance. Deference is ma de to trial strategy or tactical choices if9

they are informed ones based upon adeq uate preparation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

Also, we note that the approach to the issue of the inef fective assistance of counsel does not have to start with an analysis of an attorney's conduct. If pre judice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

The burden is on the petitioner in the trial court to pr

ove the factual allegations that woul d entitle him to relief by clear and convincing evidence. Tenn. Code Ann. § 40-3 0-210(f) (199 5). On appeal, we a re bound by the tri al court’s find ings of fact unless we conclude that the evidence in the record prepon derates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In thi s respect, the petitioner, as the appellant, has the burden of illustrating how the evidence preponderates against the ju dgment entered. Id.

A. SEVERANCE First, the petitioner c

ontends that his attorney w as ineffective for failing to challenge on appeal the tri al court’s denial of the motion to sever. Specifically, he argues that at the motion heari ng, the state did not demonstrat e a common scheme or plan; thus, his attorney should have raised the issue on appeal.

The petitioner has failed to demonstr ate that the evidence preponder ates against the trial cour

t’s judgment. There is no c onstitutional requirement that an attorney argue ever

y issue on appeal. Jones v. Barnes , 463 U.S. 745, 750-51, 103 S. Ct. 3308, 3312 (1983); Cooper v. State , 849 S.W .2d 744, 747 (Ten n. 1993) . Attorne ys have discretion to make tac tical decisions regar

ding what issues to r

aise on appeal, and their decisions should not be second-guessed by the ap pellate courts. Cooper , 84910

S.W.2d at 747. The petitioner’s attorney tes tified at the evidentiary hearing that he believed the state demonstrate d a common scheme or plan by show ing that the burglaries occurred over a twelve- week period, that they occurred within one mil e of each other and within one mi le of the petitioner’s resi dence, that the petitioner used the same method of entry for all of the burgl aries, and t hat the petit ioner stole the same type of items. The attorney te stified that he review

ed hundreds of cases on this iss ue and that he concluded that the motion to sever was properly denied. The attorney’s decision not to appeal what he viewed to be a meritl ess issue represents a tac tical decision that will n ot be second-guessed by this court. The petitioner has failed to show that the record preponderates against the trial court’s finding of effective assistance.

B. SUFFICIENCY OF THE EVIDENCE The petitioner contends that his attorney was ineffectiv e for failing to challenge the sufficiency of the evidence on appeal. He ar gues that his convict ions were based upon circumstantial fingerprint evi dence that did not exclude al l other reasonable hypotheses except that of guilt. The state conte nds that the trial court
co rr ec tl y c on cl ud ed th at

th e p et it io ne r r

ecei ve d t he

ef fe ct iv e a ss is ta nce of cou ns el . We agree. The attorney made a tac tical decision on appeal not to raise the sufficiency of the evidence with res pect to the aggravated burglary convi ctions. In any event, according to the eviden ce presented at the evidenti ary hearing, the petitioner was caught at the scene of one of the burg laries, and his fingerpr ints were found at all of the burglaries. The petition er has failed to show that th e record preponderates agai nst the trial court’s judgment

.11 II. PROSECUTORIAL MISCONDUCT The petitioner contends that he shoul d be granted post-convi ction relief because of prosecutorial miscon duct during the state’s c losing argument. He ar gues that the prosecutor told the j ury that the petitioner no longer had a presumption of innocence, that the state’s w itnesses were telli ng the truth, that eyew itnesses were not relevant, and information that was not in evidence r elating to how most burg laries occur. We conclude that the pe titioner has failed to show that the record preponderates against the tr ial court’s determination that the prosecutor’s state ments did not affect the outcome of the trial to the petitioner’s detriment. See Harringto n v. State , 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (Tenn. 1965).

Although a transcript of the closing argument w as not made a part of the record on appeal, the portions of the closing argument re lative to the presumption of innocence and the credibility of the witnesses w ere read at the evidentiar y hearing. With respect to the prosecutor’s arg ument regarding the presumption of innocence, the record from the evidentiary hearing reflects that the prosecutor stated as f ollows at trial:

James Kenner was entitled and is entitled to a fair trial. He’s entitled to all the Constitutional guarantees that w e all have, including [the] presumptio n of innocence that he had at the beginning of this trial . That’s gone. He no long er has [the] presumption of innocence. We’ve proved that he’s guilty beyond a reasonable doubt.
Although we believe the prosecutor’s statement was misleading because the presumption of innocence remained with the petitioner until the jury found him guilty, the petitioner

has not shown that the arg ument affected the outcome of the trial. Considering the contex t of the statement, the circumstances of the case, and the trial court’s instruction to the jury that the petitio ner still carried the presumption of innocence, the trial court correctly concluded that the argument was not pr ejudicial to the outcome of the trial. See Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).12 With respect to the prosecutor’s statements about the credibility of witnesses, the record from the evidentiary hear ing reflects that the prosec utor stated the following at trial:

Well, you saw these -- al l five of these witnesses testified about what was taken, about w hat they thought it w

as worth. And there’s absolutely nothing put before you during this trial to c ontradict anything that they said. I guess it’s lik e mos t crimes, you bring the victim in, and you try to focus on them instead of the person who’s charg ed with thecrime, so you can forget about the one who actually caused the problem. These people came in, a nd they to ld you what wa s taken an d wh a t they thought it was worth. Some of them even told you that they initially had an item they thought was taken, and it was in the repairshop. And they called the police back and t old them that. Ms. Wa rren told you her jewe lry w as worth more than she thought it was. These people tried to be honest. They’re not in here to lie or to tel l anybody anything that’s not true. The petitioner contends that he shoul d have been granted post-c onviction relief because of the prosecutor’ s statement that the state’s w itnesses tried to be honest and were not at tri al to lie. A prosecutor may properly base his or her argument upon inferences supported by ev idence in the record, incl uding argument pertaining to the veracity of a witness’s testimony. See State v. B rown , 836 S.W.2d 530, 552 (Tenn. 1992); State v. Beasley , 536 S.W.2d 328, 33 0 (Tenn. 1976). Although a prosecutor is prohibited from expressing a personal opinion on a wi tness’s credibility , he or she may argue based upon an analysi s of the evidence and the conclus ion supported by the evidence. Tenn. Sup. Ct. R. 8. We do not believe that the statements in the present case, when viewed in context, amount to an improper argument. The statements do not reflect that the prosecutor vouched for the credibility of the witnesses; r ather, they reflect the prosecutor’s attempt to explain apparent incon sistencies in witness testimony. The petitioner has not shown that the record preponderates against the tr ial court’s judgment.

The petitioner also contends that he should be granted post-conv iction relief because (1) the prosec utor stated that eyewitnesses were not relev ant, and (2)13

the prosecutor discussed in closing argument information that was not in evidence about how most burglari es occur. These portions of the closing argument wer e not addressed at the evidentiar y hearing and were

not made a part of the record on appeal

. The petitioner has the duty to ensure that the record on appeal contains all information needed to convey a fair, acc urate and complete account of what transpired relative to the issues being appealed. T.R .A.P. 24. Absent the material por tions of the closing argument, we presume that the trial court’s determinations and f indings of fact are supported. See , e.g. , State v. Meeks , 779 S.W.2d 394, 39 7 (Tenn. Crim. App. 1988).

III. SUFFICIENCY OF THE INDICTMENTS The petitioner contends that his constitutional rights were violated because the indictments for agg ravated burglary did not allege a culpable mental state, and he contends that his attorney was ineffective for failing to raise this issue on appeal. The state contends that the tr ial court correctly

concluded that the indictments were sufficient. We agree.

The indictments allege that the petitioner “did enter the hab itation of [the victims] with the intent to commit theft in viol ation of Tenn. Code Ann. § 39-14-403, and against the peace and dignity of the State of Tennessee.” The indic tments track the wording of the statute. We believe tha t alleging that the entr

y was with the i ntent to commit theft inherently impli es the mens rea needed for aggravated burglary. Because the indictments are sufficient, w e conclude that the petitioner has failed to show that he was prejudiced by his attorney’s failure to raise the issue on direct appeal.

IV. REASONA

BLE DOUBT JURY I NSTRUCTION The petitioner contends that the trial court’s instruction on reaso nable doubt violated his constitutional rights. Specifically, he takes issue with the trial court’s use of the phrase “moral certai nty” in conjunction w ith “let the mind rest easi ly.” Both14

this court and our supreme cou rt have held that this i nstruction is a correc t statement of the burden of proof in criminal tr ials in Tennessee. See State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 26 6 (Tenn. Crim. App. 1995); Pettyjohn v. State , 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994). This i ssue is without merit.

V. VERDICT FORMS

The petitioner contends that his judgment of conviction is unconstitutional because the jury did not s ign the verdict forms. However, the petiti oner did not include this issue in his petiti on for post-conviction r elief. It is well-s

ettled that a post-convic tion petitioner may not raise grounds on appeal that wer e not alleged in the petiti on for postconviction relief. Long v. State , 510 S.W.2d 83, 85 (T enn. Crim. App. 1974). Because this issue was not raised in the post-conviction petition, it is not properly before this court on appeal, and we w ill not review the merits of the allegation.
In consideration of the foregoing and the record as a whole , we affirm the trial c ourt’s denial of the pet ition fo r post- convic tion re lief.

__________________________ Joseph M. Tipto n, Judge

CONCUR:

_________________________ John H. Peay, Jud ge

________________________ Norma McGee Ogle, Judge