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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MARCH SE SSION, 1998

FILED
Appe llate Court C lerk

STATE OF TENNESSEE, Appellee,

VS. MARCELLOUS BOND, Appe llant.

) ) ) ) ) ) ) ) ) ) )

December 30, 1998 C.C.A. NO. 02C01-9710-CC-00387 Cecil Crowson, Jr.

MADISON COUNTY HON. JOHN FRANKLIN MURCHISON JUDGE (Post-Conviction - Sale and Delivery of Cocaine)

FOR THE APPELLANT: DANIEL J. TAYLOR Assistant Public Defender 26th Judicial District 227 West Baltimore Street Jackson, Tn 38301

FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter GEORGIA BLYTHE FELNER 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 Hull Building, Second Floor Nashville, TN 37243-0493 JERRY WOO DALL District Attorney General NICK NICOLA Assistant District Attorney P. O. Box 2825 Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED JERRY L. SMITH, JUDGE

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OPINION
On January 13, 1993 a Madison Coun ty jury foun d Appe llant, Marcellous Bond guilty of the sale and delive ry of co caine and fin ed 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 couns el 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 appe als 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 ec omon y, sua sp onte, consolidated Appellant's appeals on July 8, 1998.

FACTS

On July 10, 1990, Tennessee Bureau of Investigation agent, Eric Patto n purchased an "eigh t-ball" (or an e ighth of an ounce ) of cocain e from A ppellant. -3-

Agent Patton worked with a confidential informant, Michael Burgess, who introduced Patton as Burgess' cousin from Milwaukee. Agent Patton and Mr. Burgess flagge d dow n App ellant a nd inq uired a bout p urcha sing a n eigh t-ball. Appellant replied that he didn't have it with him. Appellant told the p air to w ait while he we nt to his mother's house. Appellant returned, saying that it was going to take longer, because he was going to pick up some m ore 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, bringin g Age nt Patt on tw o sm all bags containing a white powder substance. Agent Patton paid Appellant the $250.00 which Appe llant had told him the cocaine would c ost.

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 E ric Patton. When an appellant ch allenges the su fficiency of the eviden ce, 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 testim ony in favor of the State. State 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 originally cloaked with 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, the burden of proof rests with Appellant to demonstrate the insufficiency of the con victing evid ence. Id. On ap peal, "the [S ]tate is entitled to the strong est leg itimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom." Id. (citing State v. Cabbage, 571 S.W.2 d 832, 8 35 (Ten n. 1978)). Whe re the s ufficien cy of th e evid ence is contested on appeal, the relevant ques tion for the reviewing court is whether any rational trier of fact could have found the acc used guilty of eve ry element of the offense beyond 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 evaluation of the convicting evidence, this Court is precluded from 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, 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 evide nce." Id. at 779. Finally, the Tennessee Rules o f Appella te Procedure, Rule 13(e) provides, "findings of guilt in crimin al 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 d etermin ations. 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 A ppellant a s the man fro m whom he pu rchased 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 su fficient. This iss ue is witho ut 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 dem ande d of atto rneys in criminal cases and that, but for his counsel's deficient 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); Strickland 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 Strickland is as follows:

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A convicte d defendant making a claim of ineffective assistance must ide ntify the acts or omissions of counsel that are alleged not to have been the res ult of rea sona ble professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omis sions were outside the wide range of profes siona lly competent assistance. In making that determination, the court should keep in mind that coun sel's function, as elaborated in prevailing professional 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 Strickland test, there must be a reaso nable probab ility 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 nee d not be an acq uittal. A reas onable probab ility of being found guilty of the lesser charge, or shorter sentence, satisfies the second prong in Strickland. Chambers v. Armontrout, 907 F.2 d 825, 8 32 (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 establish ed, it cann ot 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 a ttorney '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 co unse l failed to com ply with Rule 37 of the Rules of Criminal Procedure in neglecting to appeal Appe llant'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. Moreov er, defense counsel estimated the number of meetings to be subs tantially higher. Evidence presented also showed that the trial court heard and denied the two pre-trial motion s filed by defense counsel. The fact that such m otions 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 appe al. In light of the overwhelming evidence against Appellant, we cannot find that any of the potential omissions by coun sel, ev en if Ap pellan t's allega tions a re acc epted as pre sente d, cou ld have prejudiced Appellant. Without a showing of prejudice, Appella nt is not en titled to post-conviction 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 trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

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CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE 1

___________________________________ GARY R. WADE, JUDGE

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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