# FILED December 30, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH SE SSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CC-00387 ) Appellee, ) ) ) MADISON COUNTY VS. ) ) HON. J OHN FRANKLI N MURCHIS ON MARCELLOUS BOND, ) JUDGE ) Appe llant. ) (Post-Convicti on - Sale and Delivery ) of Cocaine)

FOR THE APPELL

ANT : FOR THE APPELLEE : DANIEL J. TAYLOR JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 26th Judicial Dist rict 227 West Baltimore St reet GEORGIA BLYTHE FELNER Jackson, Tn 38301 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493 CLINTON J . MORGAN Coun sel for the S tate 425 Fifth Avenu e North Cordell HullBuilding, Second Floor Nashville, TN 37243-0493 JERRY WOO DALL Distri ct Attor ney General NICK NICOLA Assistant Distri ct Attor ney P. O. Box 2825 Jackson, TN 38301
OPINION FILED ________________________-2-

AFFIRMED JERRY L . SMI TH, J UDGE-3- 

## OPINION On January 13, 1993 a Madi son Coun ty jury foun d Appe llant, Marcellous Bond guilty

of the sal e and delive ry of co caine and fin ed him $5,000.00 on each count. The trialcourt sentenced Appellant on February 9, 1993 to an agreed sentence of 30 years asa Range III, persiste nt offender. Appellant f iled a Petition forPost-Convict ion Relief on June 11, 1993, al leging i neffective assistance of counsel and failure of couns el to file an appeal. The trialcourt deni ed the peti tion
on August 9, 1994. Appell ant appealed and t his Court r emanded the case to the trialcourt for

a hearing wit h additi onal evidence on t he issues of ( 1) ine ffective assistance of counsel, and (2) whether Appel lant waived hi s right to appeal t he jury verdict. The trial court held a heari ng on November 22, 1996 and December 13, 1996, and denied t he petiti on for post- convicti on relief on the grounds of ineffecti ve counse l at trial, but granted Appell ant a delayed appeal . Appellant filed
a motion for a new trial on January 9, 1997, which was amended on September 10, 1997. The motion was over ruled after a hearing on September 12, 19 97
. Appellant

appe als from that dec ision f rom the tri al court as well as fr

om the trial court’s denial of

relief on the all egation of ineffect ive counsel. This Court, in the inte rest of judicial ec omon y, sua sp onte , consoli dated Appellant’s appea ls o n July 8, 1998.

FACTS

On July 10, 199 0, Tenn essee Bur eau of I nvest igat ion ag ent, Er ic Patto n purchased an “eigh t-ball” (or an e ighth of an ounce ) of cocain e from A ppellant.-4-

Agent Pa tto n worked with a conf identialinformant, Michael Burgess, who introduced Patton as Burgess’cousin fr om Milwaukee. Agent Patton an d Mr. Burgess flagge d dow n App ellant a nd inq uired a bout p urcha sing a n eigh t-ball. Appellant

replied t hat he didn’ t have it with him. Appe llant to ld the p air to w ait while he we nt to his mother’ s house. Appell ant returned, saying t hat it was going to take longer , because he was going to pick up some m ore cocaine. Later Agent Patton and Mr. Burgess saw Appell ant when they went to the st ore. Appell ant waved them down and asked them to fol low him to his mother’s house. Upon arrivi ng at a house, Appel lant went inside, stayed about ten minutes, and came out, bringin g Age nt Patt on tw o sm all bags containi ng a white powder substance. Agent Patton paid Appellant the $250.00 which Appe lla nt had tol d him the cocaine would c ost.
Agent Patton turned the bags into t he Tennessee Bureau of Invest igation lab where it wastested and analyzed. The tests reveal ed that the substance was cocaine.

I. S UFFICI ENCY OF THE EVI DENCE
Appellant

initi ally contends thatthe evidence is insuf ficien t to support

the jury’s verdict, challengi ng the credi bilit y of Michael Bur

ge ss and A gent E ric Patton. When an appellant ch allenges the su fficiency of the eviden ce, this Court is obliged to review that challenge accor

ding to certai n well-set tled principles . A verdict of guilt

y by the jur

y, approved by

the tri al judge, accredits the test imony-5-

of the State’ s witnesses and r esolves allconfli cts in t he testim ony in favor of t he State. Stat e v. Cazes , 875 S.W .2d 253 , 259 (Te nn. 199 4); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992) . Although an accused is ori ginall y cloaked wit h a presumption of inno cenc e, a jury verdic t remo ves th is presumption and replaces it with one of

guilt. State v. Tug gle , 639 S.W.2d 913, 914(Tenn. 1982). Hence,
on appeal , th e burden of proo f re sts wit h Appellant t o demonstrate th e insuffici ency of the con victing evid ence. Id. On ap peal, “the [S ]tate is entitled to the strong est leg itim ate vi ew of the evidence as well as al l reasonabl e and legitimate inferences

that maybe drawn therefrom.” Id . ( citing State v. Cabbage , 571 S.W.2 d 832, 8 35 (Ten n. 1 978)). Whe re the s ufficien cy of th e evid ence is contested on appeal, t he relevant ques tion for the reviewing court is whether any rationaltrier

of fact could have found the acc used guilty of eve ry element of t he
o ffense bey ond a re asona ble dou bt. Harris , 839 S.W .2d 54, 75 ; Jackson v. Virgin ia , 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evaluat ion of theconvicti ng evidence, t his Court i s precluded f rom reweighing or recon sidering th e eviden ce. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. C rim. App . 1996); State v. Mathews , 80 5 S. W.2d 776, 779 (Te nn. Cri m. App. 1990). Moreover, this Court may not substi tute it

s own inferences “for

those drawn by the tri er of fac t f rom c ircumstantial evide nce.” Id. at 779. Fina lly, the Tennessee Rules o f Appella te Procedure, Rule 13(e) provi des, “fi ndings of guilt in crimin al actions w hether by the trialcourt or j ury shall be set aside if the
ev idence is insuf

ficien t to support

the findi ngs by the tr ier of f act bey ond a reaso nable doubt.” See also State v. Mathews , 805 S.W.2d at 780. Ques tion s concerning the credib ilit y of witness es and the weight to be given to testimony-6-

and evidence are quest ions which must be r esolved by the j ury as the t rier of fact. This Court wil l not second guess the jury’s d etermin ations. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Mr. Burgess test ified t hat he led Agent Patton to Appellant and watched the exchangeof money for dru gs. Agent Patton identified A ppellant a s th e man fro m whom he pu rchased the drugs. Tennessee Bureau technici an Lisa Mayes test ified that the s ubstance purchased by Agent Patton f rom Appellant was cocaine. The evidence presented was more than su fficient. This iss ue is witho ut merit.

II.POST-CONVICTI ON RELIEF
Appellant

further contends that the t rial cour t erred i n denying his pet ition forpost-convi ction rel iefbased upon the inef fective assistance of

counsel at

trial. We disagree. In order for the peti tioner to be granted rel ief on grounds of ineffecti ve counsel, he must establi sh that the advice given or the ser vices rendered were not withi n the range of com petence dem ande d of atto rneys in criminal cases and that, but for hi s counsel's d eficie nt perfor man ce, the result of the trial would h ave be en differen t. Baxter v. Rose , 523 S.W .2d 930 (Te nn.1975); Strickl and v. Washington , 466 U.S. 66 8, 104 S.C t. 2052, 80 L.Ed .2d 674 (198 4).

The firs t com pone nt of the test es tablish ed in Strickl and is as foll ows:-7- A convicte d defendant making a claim of ineffect ive assistance must ide ntify the acts or omissions of counsel thatare alleged not to have been the res ult of rea sona ble professiona l judgment. The cour t must then d ete rmi ne whether, in light of all th e circumstances, the ident ified acts o r omis sions were outsi de the wide range of profes siona lly competent assist ance. In making t hat determinat io n, the court s hould keep in mind that coun sel's functio n, as elabor ated in prevaili ng pro fessional norms, is to ma ke the adve rsarial te sting p roces s wor k in the particu lar case.
Id. , 466 U.S. at

690, 104 S.Ct. at 2066.

To meet the second prong of the Strickl and test, t here must be a
reaso nable probab ility that, but for counsel 's unprofes sional errors, "the resul t of the proceeding would h ave been different." Id. , 466 U.S. at 694-95, 104 S.Ct. at 2068. The "different" result nee d not be an acq uittal. A reas onable probab ility of being found gui lty of the lesser charge, or sh orter sentence, sati sfiesth e second prong in Strickl and
. Ch ambers v. Armontrout , 907 F.2 d 825, 8 32 (8th Cir.1990).

The ultimatestandard i s whether tr ial counsel 's error s, if any, were so serious as to deprive t he petiti oner of a tri al whose result i s reliabl e. Unless each pr ong in Strickl and is establish ed, it cann ot be said th at t he convicti on resulted from a breakdown in the adversary process.
Proctor v . State , 868 S.W .2d 669, 673 (Tenn. Crim . App. 1992 ).
Appellant

failed to establ ish bya preponderance of the evidence that the servicesprovided by hi s counsel fell below the range of competence demanded-8-

of attorneys in cri minal cases. He f urther failed to prove that b ut for his a ttorney ’s performance the results of t he tr ial would h ave been differen t. Ap pellan t compl ained that his

counsel met wit h him only thr ee times before trial , that counsel failedto properl y fil e pre-tri al motions, and that co unse l failed to com ply with Ru le 37 of the Rules of Criminal Procedure in negl ecting to appeal Appe llant’s case. At thehear ing on this matter, Appell ant did not present any evidence that thr

ee meetings with counsel was insuf ficien t in acase of this sort. Moreov er, defense counsel esti mated the number of meeti ngs to be subs tantially higher. Evidence presented also showed that the tri al court heard and denied the two pre-trial motion s filed by defense counsel. The fact that such m otions were not placed in t he record did not prejudi ce Appellant. Appellant does not all ege what other motions

should have been filed. Finally , Appellant has received appellate review of hi s convicti on in thi s appe al. In light of the overwhel ming evidence agai nst A ppel lant , we cannot fi nd that any of the potentialomissions by
coun sel, ev en if Ap pellan t’s allega tions a re acc epted as pre sente d, cou ld have prejudicedAppellant. Without a showing of prejudice, Appella nt is not en titled to post-convi ction relief. Procter v. State , 868 S.W.2d 669, 672(Tenn. Crim. App. 1992). T his issue is without m erit.
Accordingly, the judgment of the tri al court i s affirmed.

____________________________________ JERRY L . SMI TH, J UDGE1 The H onorab le Joe B. J ones d ied May 1, 1998, a nd did no t participate in th is opinion. W e acknowledge his f

aithfu l service

to the Tennessee Court of Criminal

Appeals, both as our coll eague and as our Presidi ng Judge. -9- CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE 1

___________________________________ GARY R. WADE, J UDGE