# FILED September 30, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

CHARLES GAYLOR, * No. 03C01-9702-CR-00066 Appellant, * CAMPBELL CO UNTY VS. * Hon. James W itt, Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : Kenneth F. Irvine, Jr. John Knox Walkup Eldridge, Irvine &

Hendricks, PLLC Attorney General and Repor ter 606 W. Main Street, Suite 350 Post Office Box 84 Marvin E. Clements Knoxville, TN 37901-0084 Assistant Attorney Gener al (on appeal) Criminal Justice Div ision 425 Fifth Avenue North Don Elledge, Attorney Nashville, TN 37243 Shattuck & Elledge 101 S. Main Street, Suite 300 William Paul Phillips Clinton, TN 37716 District Attorney General (at trial) P.O. Box 323 Jacksboro, TN 37757

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Charles Gay lor, appeals the trial c

ourt's denial of postconvictio n relief . The fo llowing issu es have be en prese nted fo r review:

(I) whether the tri al court erred in finding that the petitioner receiv ed the effective assistance of counsel at trial and on appeal; and (II) whether the jur

y instructions at tr

ial on reasonable doubt vi olated the petitioner's right

to due process by the use of the phrases "moral certainty " and "let the mind rest easily."

We find no error and affirm the judgment of the trial c ourt.
In 1991, the petitioner was convicted of first degree murder and conspiracy. The petitione r and several others, i ncluding Olen Edward Hutchison, were impli cated in the k illing of H ugh Huddles

ton in an effort

to collect

some $500,000 in insurance death benefits. Hutchison and the petitioner were tried jointly. At trial , Hutchison received the death penalty and the convi ction and sentence were subsequentl y affirmed. State v. Hutchison , 898 S.W.2d 161 (Tenn. 1994). The petitioner receiv ed a life sentence for first degr ee murder and a consecutive ten-year

sentence for conspiracy. This court affirmed. State v. Gaylor, 862 S.W.2d 546 (Tenn. Crim. App. 1992). Later, our supreme court denied an application for permission to appeal. On April 22, 1996, the petitioner filed this petition for post-conviction relief alleging, among other things, ineffe ctive assistance of counsel and a violation of due pr ocess by the "moral certai nty" instruction to the jury. The petitioner w

as appointed counsel and the petiti on was amended twice.

The trial court conducted an ev identiary hearing and at the conclusion of the proof ruled, in pertinent part, as follows:3 Counsel cannot be ineffective for fail ing to object to proper jury instruc

tions . . . . Trial counsel filed for and sought a bill of particulars, and such a bill of particulars was provided. . . . Closing arguments of the State were proper, supported by the ev idence of the trial, or reasonable inferences drawn thereon . . . . Trial couns el made numerous objections to var ious portions of the arguments and said counsel w as not ineffective for failing to preserve, or appeal, issues concerning the State's closing argument . . . . Even if portions of the State's argument were improper, such error would be harmless in view of the overwhelming evidence of the petitioner's guilt.

. . . . The validity of the jury instruction concerning "reasonable doubt" has been repeatedly upheld by the appellate courts of Tennessee.

I The petitioner bases his clai m of ineffective assistance of counsel on the following: (1) counsel's failure to challenge the jury i nstructions relating to premeditation and deliberation at trial and on appeal; and

(2) counsel's failure to raise the issue of improper j ury argument by the state in the motion for new trial and on appeal.

When a petitioner seeks post-convicti on relief on the basis of ineffective assistance of counsel , he must first establish that the services rendered or the advice given were below "the range of competence demanded of atto rneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, he is not entitled to relief. Our supreme court described the standard of review as follows:4 Because a petitioner must establ ish both prongs of the test, a failure to prove either deficiency or prejudice provides a suffici ent basis to deny rel ief on th e ineff ective assistance claim. Indeed, a c ourt need not address the components in any particul ar order or even addres s both if the defendant makes an insufficient show ing of one component. Goad v. State , 938 S.W.2d 363, 37 0 (Tenn. 1996). On claims of ineffective coun sel, the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made duri ng the course of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel, however, appl ies only if the choices ar e made after adequate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Under our statutory law, the petitioner bears the burden of proving his allegations by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f).On appeal, the findings of fact made by th e trial court are concl usive and will not be disturbed unless the evi dence contained in the record pr eponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated against those findings. Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).

The pet itioner' s first ar gument is that his t rial coun sel shoul d have objected to the definitions the tr ial court provided the jury on premeditation and deliberation. This trial , however, took place prior to the ruling in State v. B rown , 836 S.W.2d 530 (Tenn. 1992), the case upon which the petitioner bases his clai m for relief. See also State v. West , 844 S.W.2d 530 (Tenn. 1992). Brown has not been given retroactive application and has not been a basis for post-conviction relief in5 the context of ineffective assi stance of counsel. See, e.g. , State v. Willie Bacon, Jr. , No. 1164 (Tenn. Crim. App., at Kno xville, Aug. 4, 1992); State v. Edwin E. Jesperson , No. 03C01-9602-CC-00058 ( Tenn. Crim. App., at Knoxv ille, Jan. 28, 1997). Thus, the failure of trial counsel to challenge the i nstruction cannot be a basis for relief.

The petitioner also insists that trial counsel w

as ineffective for failing to adequately argue the i ssue of improper closing ar gument by the state. The petitioner particularl

y objects to the use of such t erms as "hit man," "drug lor d," "assassins," "godfather," "ringleader," and "ring of thugs." The prosecutor also referred to the petitioner spec ifically by using

the terms "vulture" and "Judas Goat," and, at one time, compared the petiti oner to "a serpent who mig ht beguile and mislead you in a garden . . . ."

Clearly, portions of the

argument were intemperat e. In context, however, any err

or in the failure to excl ude those parts of summation would not have resulted in the rev ersal of the conviction or the grant of a new trial

. Harrington v. State , 385 S.W.2d 758 (Tenn. 1965). The factors utiliz ed for determining the presence of prosecutorial mis conduct are set out in Judge v. State , 539 S.W.2d 340 (Tenn. Crim. App. 1965), as adopte d by our supreme court in State v. Buck , 670 S.W.2d 600 (Tenn . 1984):

(1) the conduct complained of, v iewed in light of the facts and circumstances of the case; (2) the curative measur es undertaken by the court and the prosecutor; (3) the intent of the prosecutor in making the improper statement; (4) the cumulative effect of the i mproper conduct and any other errors in the record; and6 (5) the relative strength or weakness of the case.
This was a particularly egregious case and the state's evidence against the petitioner was strong. While the argument was overly metaphorical in many respects, the state pr oved facts warranting

the unfavorable references. Because any deficiency i n performance did not affect the results of the trial, the petitioner is not entitled to relief on this ground. I n summary, the evidence does not prepond erate aga inst the t rial court 's findin g that the petition er receive d the ef fective assistance of counsel.

II

Petitioner next contends that the jury instructions regarding reasonable doubt entitle him to post-conviction relief. The instruction given was as follows:

Reasonable doubt is that doubt engendered by an investiga tion of a ll the pro of in the case and an inabil ity, after such investigati on, to let the mind rest easil y as to the certainty of guilt.Reasonable doubt does not mean a captious, possible or imag inary doubt. Absolute cer tainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is requi red as to every propo sition of proof requisite to constitute

the offense.
It is the inclusion of the phrases "moral certainty" and "let the m ind rest easily" that the petitioner claims is error. Spec

ifically, he contends that the phrases unconstitutionally low

er the standard of proof requir ed to sustain a criminal conviction. Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990). He argues that when a deficient reasonable doubt instruction is giv

en, it is never harmles

s error. Sullivan v. Louisi ana , 508 U.S. 275, 113 S. Ct. 2078 ( 1993).

In Cage , the United States Supreme Cour t held unconstitutional an7 instruct ion equat ing reason able dou bt with "ac tual subs tantial d oubt" an d "grave uncertainty." The Court hel d that "[w]hen those statements ar e then considered with the reference to 'moral certai nty,' rather than evi dentiary certainty , it becomes clear that a reasonable juror coul d have interpreted the ins truction to allow a findi ng of guilt based on a degree of pr oof below that required by the Due Process Clause." Id. at 41, 111 S. Ct. at 329.

In Victor v. Nebraska , 511 U.S. 1, 114 S. Ct. 1239 (1994), the Supreme Court con sidered t he defin ition of reasona ble doub t given in th e trial of two criminal defendants from two sta te courts. Jurors in the first case were told that they must have "an abiding conviction, to a moral certainty, of the truth of the charge" in order to meet the reasonable doubt s tandard. In the second case, the i nstruction provided that a reasonable doubt is "an actual and substantial doubt" and that the jury must have "an abidi ng conviction, to a mor al certainty, of the gui lt of the accused." The Supreme Court concl uded that while they w ould not "condone" the use of the term "moral certainty," the instructions were distinguishable from those given in Cage because the jurors woul d understand from the instructions that they were to base their verdict on the evidence rather than other factors which could allow conviction on a standard lower than reasonable doubt. Further, the Court stated that "[i]nstructing the jurors that they must have an abiding convi ction of the defendant's guilt does much to all eviate any concerns that the phrase 'moral certainty' might be misunderstood in the abstract." Id. at 19, 114 S. Ct. at 1250.

Here, the petitioner relies upon these Supreme Court decisions in his attack upon the use of the terms "moral certaint y" and "let the mind rest easily" in conjunction with the re

asonable doubt standard. We are, however, not persuaded that the instructions gi

ven in his trial suffered fro m the same infirmities as the8 instruction given i n Cage . Moreover, the termin ology to which the petitioner objects has been specifically appr oved by this court and by the Tennessee Supreme Court. State v. Nichols , 877 S.W.2d 722 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263 (Tenn. Crim. App. 1995); Pettyjohn v. State , 885 S.W.2d 364 (Tenn. Crim. App. 1994); State v. Hallock , 875 S.W.2d 285 Tenn. Crim App. 1993); State v. Blank , No. 01C01-9105-CC-0139, (Tenn. Cr im. App., at Nashville,February 26, 1992). In fact , no Tennessee court has interpret ed Cage to require the absolute abandonment of the use of the phrase "moral certainty" in jury instructions used to def ine reasonable doubt.

The trial court's use of the w ords "moral certainty," unconnected with any other limiting or

expanding adjectiv

es, did not lessen the burden of the state to show guilt beyond a reasonable doubt. Our supreme c ourt has stated as follows: When considered in conjunction with an i nstruction that "[r]easonable doubt is that doubt en gendered by an investiga tion of a ll the pro of in the case and an inabil ity, after such investigati on, to let the mind rest easily upon the certainty of your v

erdict," we find that the instruction properly reflects the ev identiary certainty

required by the "due process" clause of the federal co nstitution and the "law of the land" provision in our state constitution. Nichols , 877 S.W.2d at 734. W e conclude that the instructions in the instant case sufficiently described the s tandard for the degree of proof requi red to convict.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_______________________________ James Curwood W itt, Jr., Judge9 ________________________________ John K. Byers, Sen ior Judge