State v. Willie Locust ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER SESSION, 1996
WILLIE D. LOCUST, ) C.C.A. NO. 02C01-9512-CC-00356
)
Appellant, )
)
) DYER COUNTY
FILED
VS. ) July 23, 1997
) HON. JOE G. RILEY
STATE OF TENNESSEE, ) JUDGE Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellee. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
LANCE E. WEBB CHARLES W. BURSON
P. O. Box 26 Attorney General and Reporter
Union City, TN 38061
ROBIN L. HARRIS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
PHILLIP BIVENS
District Attorney General
KAREN WINCHESTER
Assistant District Attorney
P. O. Box E
Dyersburg, TN 38024
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Willie D. Locust appeals from the dismissal of his petition for post-
conviction relief. On September 28, 1993, a jury found Appellant guilty of one count
of aggravated rape and one count of aggravated burglary. As a Range I standard
offender, Appellant received concurrent sentences of twenty years imprisonment for
aggravated rape and four years imprisonment for aggravated burglary. On October
5, 1994, this Court affirmed the convictions and the sentences of the trial court. See
State v. Locust, No. 02-C-01-9404-CC-00075, 1994 WL 536187, at *2 (Tenn. Crim.
App. Oct. 5, 1994), perm. app. denied, (Tenn. Jan 3, 1995). On March 14, 1995,
Appellant filed a pro se petition for post-conviction relief, alleging ineffective
assistance of counsel and prosecutorial misconduct. After appointment of counsel
and an evidentiary hearing, the trial judge dismissed the petition. In this appeal of
that decision, Appellant alleges that his pre-trial counsel and his trial counsel were
ineffective and that the indictment against him was defective.
For the reasons stated below, we affirm the decision of the post-conviction
court.
Factual Background
On April 30, 1993, Bobbie Evans and several friends went to a bar to have
some drinks. She and her friends were given a ride home by a man named William
Birmingham. Mr. Birmingham accompanied Ms. Evans back to her apartment and
stayed until approximately 4:45 a.m. After Mr. Birmingham left, Ms. Evans fell
asleep on her couch but was awakened by Appellant. He was naked and standing
over her holding a knife. Appellant threatened to kill her if she resisted. He then
raped her once on the couch and once in the bedroom. Ms. Evans received several
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cuts and bruises in the process. After these attacks, Appellant ordered her to make
him a sandwich and then gave her his name and phone number before he left.
Thirty minutes later, Ms. Evans went to a neighbor’s house and reported the
incident.
Appellant admitted to having sex with Ms. Evans but claimed that it was
consensual. He testified that she called to him from her balcony when he was
outside her apartment. According to Appellant’s version of the events, Ms. Evans
asked him to find some marijuana for her and in return she would sleep with him.
I. Ineffective Assistance of Counsel
Appellant alleges that pre-trial counsel’s representation was deficient
because he joined the staff of the district attorney general. Appellant further alleges
that trial counsel’s representation was deficient because counsel failed: (1) to raise
and preserve for appellate review the allegation that Mr. Birmingham had sexual
relations with the victim prior to Appellant’s attack; (2) to adequately cross-examine
the victim; (3) to raise important issues on appeal and to explain to Appellant his pro
se briefing rights; (4) to object to inflammatory statements made by the prosecutor
during closing; and (5) to secure a deoxyribonucleic acid (DNA) comparison of the
semen found in the victim with a blood sample from Appellant.
When an appeal challenges the Sixth Amendment right to effective
assistance of counsel, the appellant has the burden of establishing that the advice
given or services rendered by the attorney fell below the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn.
1975). Under Strickland v. Washington, 466 U.S. 668, 687 (1984), there is a two-
prong test which places the burden on the appellant to show that (1) the
representation was deficient, requiring a showing that counsel made errors so
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serious that he or she was not functioning as “counsel” as guaranteed a defendant
by the Sixth Amendment, and (2) the deficient representation prejudiced the
defense to the point of depriving the appellant of a fair trial with a reliable result.
Prejudice is shown by demonstrating a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id. at
694. Under the Strickland test, a reviewing court’s scrutiny “must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence . . . .” Id. at 689. In fact, a
petitioner challenging his counsel’s representation faces a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance .
. . .” Id. at 689.
Before addressing the substance of Appellant’s claim of ineffective
assistance of counsel, we recognize that our scope of review is limited. In a petition
for post-conviction relief, the petitioner must establish his or her allegations by a
preponderance of the evidence. McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.
App. 1983) (citing Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978)).
Furthermore, the findings of fact made by a trial judge in post-conviction hearings
are conclusive on appeal unless the appellate court finds that the evidence
preponderates against the judgment. Butler v. State, 789 S.W.2d 898, 899 (Tenn.
1990).
A. Pre-Trial Counsel’s Employment by the District Attorney General
Appellant’s first attorney joined the staff of the district attorney general after
he had represented Appellant at the preliminary hearing. Of course it is firmly
established, “both in the Canons of Professional Ethics and by judicial opinions, that
attorneys cannot represent conflicting interests or undertake to discharge
inconsistent duties.” State v. Phillips, 672 S.W.2d 427, 430 (Tenn. Crim. App.
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1984). However, before leaving the public defender’s office, pre-trial counsel
informed Appellant that he would no longer be representing Appellant and that
someone else in the public defender’s office would be representing him. Upon
joining the district attorney general’s office, pre-trial counsel had absolutely no
involvement with Appellant’s case. In fact, Appellant does not even allege that any
confidential information was passed or that any other impropriety occurred. Under
the circumstances, Appellant has failed to demonstrate deficient performance or any
prejudice with respect to this ground.
B. Alleged Prior Sexual Relations of the Victim
Appellant alleges that trial counsel’s performance was deficient because he
failed to raise the question of the victim’s alleged consensual sexual relations with
Mr. Birmingham the morning of the attack on the victim. Appellant seems to be
arguing that if the victim consented to having sexual relations with one man she
must have consented to sexual relations with Appellant. Appellant claims that this
evidence was admissible to prove consent pursuant to Tennessee Rule of Evidence
412(c)(4)(iii), which provides that evidence of specific instances of sexual conduct
with persons other than the accused are admissible if:
the evidence is of a pattern of sexual behavior so distinctive
and so closely resembling the accused’s version of the
alleged encounter with the victim that it tends to prove that
the victim consented to the act charged or behaved in such
a manner as to lead the defendant to reasonably believe
that the victim consented.
The victim’s alleged sexual relations with Mr. Birmingham show absolutely no
resemblance to Appellant’s version of the encounter. The victim and Mr.
Birmingham had dated for years and were once engaged to be married. On the
night in question, they had discussed renewing their relationship. Appellant claims
the victim offered sex in exchange for drugs. Under the circumstances, any sexual
involvement with Mr. Birmingham was inadmissible at trial. Thus, Appellant has
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failed to demonstrate any deficient performance on the part of counsel or any
prejudice to his defense.
C. Cross-Examination of the Victim
Appellant next alleges that trial counsel was ineffective in his cross-
examination of the victim. Appellant argues that trial counsel failed to question the
victim about certain inconsistencies between police reports and her trial testimony.
After the victim was raped, she went to her neighbor’s house to tell her what had
happened. Her neighbor called the police and reported the incident. In the police
report, the neighbor is quoted as saying that the victim was raped by an unknown
assailant. In the incident report, the victim stated that the assailant forced her to
have sex with him, ordered her to make him a sandwich, and then forced her to
have sex again. In her trial testimony, the victim claimed that her assailant forced
her to have sex twice and then ordered her to make a sandwich. The first
inconsistency to which Appellant points is a statement made by the victim’s neighbor
and not the victim herself. In addition, the victim testified at trial that she had never
seen or spoken to Appellant before the night of the rape. The second alleged
inconsistency carries no importance. Certainly, a variance in the order in which
Appellant ordered the victim to have sex and to fix a sandwich would not destroy her
testimony. Finally, from the record it appears that trial counsel conducted an
exacting cross-examination, asking the victim about several inconsistencies
between her trial testimony and her preliminary hearing testimony. Even assuming
that counsel’s cross-examination was deficient, Appellant has failed to show how the
result of the trial would have been different absent the alleged deficiency.
D. Issues on Appeal
Appellant further alleges that trial counsel failed to preserve and brief
important issues on appeal. Appellant also faults trial counsel for not informing him
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of his pro se briefing rights. The only issue not raised on direct appeal, that
Appellant claims should have been, concerns is the admissibility of the victim’s prior
sexual relations with Mr. Birmingham. We have already found that this evidence
was inadmissible; therefore, Appellant’s contention is without merit. As for
Appellant’s pro se briefing rights, it is well established that a criminal defendant
cannot be represented by counsel and simultaneously proceed pro se. See, State
v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976). Because Appellant was proceeding
with counsel on appeal he had no right to file a pro se brief. Appellant has thus
failed to demonstrate any prejudice with respect to this issue.
E. Prosecutor’s Closing Argument
Appellant also alleges that trial counsel erred in failing to object to
inflammatory remarks made by the prosecution. During closing argument, the
prosecutor stated that rape cases were “not ever going to be as clear as you would
like, but that they’re as clear as they get in real life situations.” He further stated,
“And that’s what you have here. And you could well be involved in one of these
situations yourself. This lady didn’t invite this. Thank you.” The prosecutor also
made the following statement about Appellant: “But we’re not accusing him of being
smart. We’re accusing him of being dangerous.”
The general test to be applied to alleged prosecutorial misconduct during
final argument is “whether the improper conduct could have affected the verdict to
the prejudice of the defendant.” Harrington v. State, 385 S.W.2d 758, 759 (Tenn.
1965). In making that determination, we take into account the following factors:
1. The conduct complained of viewed in
context and in light of the facts and
circumstances of the case.
2. The curative measures undertaken
by the court and the prosecution.
3. The intent of the prosecutor in
making the improper statement.
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4. The cumulative effect of the
improper conduct and any other errors in the
record.
5. The relative strength or weakness of
the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
There is no doubt that the comment made by the prosecutor during closing
argument that “you could well be involved in a situation like this yourself” was improper.
However, it seems that the prosecutor was trying to explain how difficult it is to prove
the absence of consent in many rape cases where the only witnesses are the victim
and the accused. The prosecutor’s comment in this case is very similar to that found in
State v. Ashburn, were the prosecutor stated that “I hope that none of you all are ever
in this situation.” 914 S.W.2d 108, 115 (Tenn. Crim. App. 1995). In Ashburn, this Court
found that although the prosecutor’s comment was improper, it was harmless.
Likewise, we find that the prosecutor’s comment, under the circumstances of this case,
was harmless. Thus, no prejudice has been demonstrated from counsel’s failure to
object.
The prosecutor’s comment that the State was not accusing Appellant of being
smart but was accusing him of being dangerous was made in response to defense
counsel’s closing argument. In his closing, Appellant’s trial counsel argued that it was
very strange that Appellant had given his name and telephone number to the victim
before he left. He argued that a rapist would not have done such a thing. The
prosecutor’s comment during rebuttal was a fair response to the line of argument that
an intelligent individual would not have behaved as it was alleged Appellant behaved.
F. DNA Testing
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Finally, Appellant claims that trial counsel was ineffective in failing to obtain a
DNA analysis from the rape kit performed on the victim. At trial, Appellant admitted to
having sex with the victim but claimed that it was consensual. Appellant believes that
the DNA analysis would prove that Mr. Birmingham had sex with the victim hours before
the rape. As stated supra, any sexual involvement with Mr. Birmingham was
inadmissible at Appellant’s trial, thus a failure to obtain a DNA analysis could not have
prejudiced Appellant.
II. Sufficiency of the Indictment
Appellant next contends that because the indictment fails to state the requisite
mens rea for the crime of aggravated rape, the instrument is fatally defective. He relies
upon State v. Hill, No. 01C01-9508-CC-00267, 1996 WL 346941, at *3 (Tenn. Crim.
App. June 20, 1996), perm. app. granted, (Tenn. Jan. 6, 1997). In Hill, this Court held
that the failure to allege the mens rea or culpable mental state in a prosecution for
aggravated rape rendered the indictment fatally defective.
After Hill was decided, a panel of this Court held that if the statute under which a
defendant is prosecuted does not allege a specific mens rea, failure to allege a culpable
mental state in the indictment does not invalidate the indictment. State v. Dison, No.
03C01-9602-CC-00051, 1997 WL 36844 (Tenn. Crim. App. Jan. 31, 1997). As this
Court said in Dison,
When the legislature neglects to include the requisite mental
state in the definition of an offense, permitting the
application of any one of three mental states set forth in
Tenn. Code Ann. § 39-11-301(c), an allegation of criminal
conduct will provide the accused constitutionally adequate
notice of the facts constituting the offense.
Id. at *9.
Both the Tennessee Constitution and the United States Constitution require fair
and reasonable notice of the charges against a defendant. See U.S. Const. amend. VI;
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Tenn. Const. art. I, § 9. In Tennessee, an indictment serves to (1) inform the defendant
of the precise charges, (2) enable the trial court upon conviction to enter an appropriate
judgment and sentence, and (3) protect the defendant against double jeopardy. State
v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated in ordinary and
concise language so that a person of “common understanding” will know what is
intended. Warden v. State, 381 S.W.2d 244, 245 (Tenn. 1964).
In this case, the indictment alleged that Appellant unlawfully and with force or
coercion sexually penetrated the victim while armed with a weapon in violation of
Tennessee Code Annotated Section 39-13-502. The legislature has failed to provide
for any specific mens rea under Section 39-13-502. Therefore, under Dison, the
indictment is not fatally defective since it alleged criminal conduct sufficiently to give
Appellant notice of the charges against him. Moreover, the indictment informed
Appellant of the precise charge against him and used ordinary and concise language so
that a person of common understanding would know what was intended. The trial court
was able to enter the appropriate judgment and sentence, and the allegations protected
Appellant against any subsequent prosecution for the same offense. Appellant is not
entitled to relief on this issue.
We conclude that Appellant was not denied effective assistance of counsel nor
was the indictment defective. The judgment of the post-conviction court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
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JOE B. JONES, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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