FILED

December 30, 1998

Cecil Crowson, Jr.

Appe llate Court C lerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CC-00387

)

Appellee, )

)

) MADISON COUNTY

VS. )

) HON. JOHN FRANKLIN MURCHISON

MARCELLOUS BOND, ) JUDGE

)

Appellant. ) (Post-Conviction - Sale and Delivery 

) of Cocaine)

FOR THE APPELLANT: FOR THE APPELLEE:

DANIEL J. TAYLOR JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

26th Judicial District

227 West Baltimore Street GEORGIA BLYTHE FELNER

Jackson, Tn 38301 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

CLINTON J. MORGAN 

Counsel for the State

425 Fifth Avenue North

Cordell Hull Building, Second Floor

Nashville, TN 37243-0493

JERRY WOODALL

District Attorney General

NICK NICOLA

Assistant District Attorney

P. O. Box 2825

Jackson, TN 38301

OPINION FILED ________________________
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AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On January 13, 1993 a Madison County jury found Appellant, Marcellous

Bond guilty of the sale and delivery of cocaine and fined him $5,000.00 on each

count. The trial court sentenced Appellant on February 9, 1993 to an agreed

sentence of 30 years as a Range III, persistent offender. Appellant filed a Petition

for Post-Conviction Relief on June 11, 1993, alleging ineffective assistance of

counsel and failure of counsel to file an appeal. The trial court denied the petition

on August 9, 1994. Appellant appealed and this Court remanded the case to the

trial court for a hearing with additional evidence on the issues of (1) ineffective

assistance of counsel, and (2) whether Appellant waived his right to appeal the

jury verdict. The trial court held a hearing on November 22, 1996 and December

13, 1996, and denied the petition for post-conviction relief on the grounds of

ineffective counsel at trial, but granted Appellant 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 overruled after a hearing on September 12, 1997.

Appellant appeals from that decision from the trial court as well as from the trial

court’s denial of relief on the allegation of ineffective counsel. This Court, in the

interest of judicial ecomony, sua sponte, consolidated Appellant’s appeals on

July 8, 1998.

FACTS

On July 10, 1990, Tennessee Bureau of Investigation agent, Eric Patton

purchased an “eight-ball” (or an eighth of an ounce) of cocaine from Appellant.
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Agent Patton worked with a confidential informant, Michael Burgess, who

introduced Patton as Burgess’ cousin from Milwaukee. Agent Patton and Mr.

Burgess flagged down Appellant and inquired about purchasing an eight-ball.

Appellant replied that he didn’t have it with him. Appellant told the pair to wait

while he went to his mother’s house. Appellant returned, saying that it was going

to take longer, because he was going to pick up some more cocaine. Later Agent

Patton and Mr. Burgess saw Appellant when they went to the store. Appellant

waved them down and asked them to follow him to his mother’s house. Upon

arriving at a house, Appellant went inside, stayed about ten minutes, and came

out, bringing Agent Patton two small bags containing a white powder substance.

Agent Patton paid Appellant the $250.00 which Appellant had told him the

cocaine would cost.

Agent Patton turned the bags into the Tennessee Bureau of Investigation

lab where it was tested and analyzed. The tests revealed that the substance was

cocaine.

I. SUFFICIENCY OF THE EVIDENCE

Appellant initially contends that the evidence is insufficient to support the

jury’s verdict, challenging the credibility of Michael Burgess and Agent Eric

Patton. When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony
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of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citingState v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W.2d 54, 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circumstantial evidence.” Id. at 779. Finally, the

Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonable doubt.” See also State v. Mathews, 805 S.W.2d at 780. Questions

concerning the credibility of witnesses and the weight to be given to testimony
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and evidence are questions which must be resolved by the jury as the trier of

fact. This Court will not second guess the jury’s determinations. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Mr. Burgess testified that he led

Agent Patton to Appellant and watched the exchange of money for drugs. Agent

Patton identified Appellant as the man from whom he purchased the drugs.

Tennessee Bureau technician Lisa Mayes testified that the substance purchased

by Agent Patton from Appellant was cocaine. The evidence presented was more

than sufficient. This issue is without merit.

II. POST-CONVICTION RELIEF

Appellant further contends that the trial court erred in denying his petition

for post-conviction relief based upon the ineffective assistance of counsel at trial.

We disagree. In order for the petitioner to be granted relief on grounds of

ineffective counsel, he must establish that the advice given or the services

rendered were not within the range of competence demanded of attorneys in

criminal cases and that, but for his counsel's deficient performance, the result of

the trial would have been different. Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975);

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The first component of the test established in Strickland is as follows:
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A convicted defendant making a claim of ineffective

assistance must identify the acts or omissions of counsel

that are alleged not to have been the result of reasonable

professional judgment. The court must then determine

whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of

professionally competent assistance. In making that

determination, the court should keep in mind that

counsel's function, as elaborated in prevailing professional

norms, is to make the adversarial testing process work in

the particular case. 

Id., 466 U.S. at 690, 104 S.Ct. at 2066.

To meet the second prong of the Strickland test, there must be a

reasonable probability that, but for counsel's unprofessional errors, "the result of

the proceeding would have been different." Id., 466 U.S. at 694-95, 104 S.Ct. at

2068. The "different" result need not be an acquittal. A reasonable probability

of being found guilty of the lesser charge, or shorter sentence, satisfies the

second prong in Strickland. Chambers v. Armontrout, 907 F.2d 825, 832 (8th

Cir.1990).

The ultimate standard is whether trial counsel's errors, if

any, were so serious as to deprive the petitioner of a trial

whose result is reliable. Unless each prong in Strickland

is established, it cannot be said that the conviction

resulted from a breakdown in the adversary process.

Proctor v. State, 868 S.W.2d 669, 673 (Tenn. Crim. App. 1992).

Appellant failed to establish by a preponderance of the evidence that the

services provided by his counsel fell below the range of competence demanded
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of attorneys in criminal cases. He further failed to prove that but for his attorney’s

performance the results of the trial would have been different. Appellant

complained that his counsel met with him only three times before trial, that

counsel failed to properly file pre-trial motions, and that counsel failed to comply

with Rule 37 of the Rules of Criminal Procedure in neglecting to appeal

Appellant’s case. At the hearing on this matter, Appellant did not present any

evidence that three meetings with counsel was insufficient in a case of this sort.

Moreover, defense counsel estimated the number of meetings to be substantially

higher. Evidence presented also showed that the trial court heard and denied the

two pre-trial motions filed by defense counsel. The fact that such motions were

not placed in the record did not prejudice Appellant. Appellant does not allege

what other motions should have been filed. Finally, Appellant has received

appellate review of his conviction in this appeal. In light of the overwhelming

evidence against Appellant, we cannot find that any of the potential omissions by

counsel, even if Appellant’s allegations are accepted as presented, could have

prejudiced Appellant. Without a showing of prejudice, Appellant is not entitled to

post-conviction relief. Procter v. State, 868 S.W.2d 669, 672 (Tenn. Crim. App.

1992). This issue is without m erit.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE
1

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 faithful service to the Tennessee Court of Criminal Appeals, both as our colleague and

as our Presiding Judge.

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CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE1

___________________________________

GARY R. WADE, JUDGE