Cyril v. Fraser ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1996 SESSION
June 30, 1997
Cecil W. Crowson
RICKY TRICE, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9511-CR-00370
)
) Davidson County
v. )
) Honorable J. Randall Wyatt, Jr., Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Monte D. Watkins Charles W. Burson
176 2nd Avenue North Attorney General of Tennessee
Nashville, TN 37201 and
Cyril V. Fraser
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Nicholas Bailey
Assistant District Attorney General
Washington Square
Suite 500
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Ricky Trice, appeals as of right from the Davidson County
Criminal Court’s denying him post-conviction relief. The petitioner is presently serving
concurrent twenty-five year sentences in the Department of Correction for his two 1990
convictions for aggravated rape of his preschool-age daughter. He contends that he
received the ineffective assistance of appellate counsel and that plain error occurred
through the state’s proving, without objection, collateral bad acts. We affirm the trial
court.
The petitioner’s claims relate to questioning and evidence in his trial about
which his trial attorney did not object and to his appellate attorney’s failure to present
authority on appeal to support the claim that his trial attorney was ineffective for not
objecting. The particulars are in this court’s opinion in the defendant’s direct appeal of
his convictions:
In the next issue the appellant contends that the
prosecutor was guilty of misconduct which denied him a fair
trial and due process of law. Specifically he complains that the
Assistant District Attorney General used leading questions in
examining the victim and that he probed into irrelevant areas
such as the appellant’s acts of violence toward his former wife,
his adulterous affairs and his failure to pay his child support in
a timely manner.
There was no objection to any of this testimony. Under
the contemporaneous objection rule, when there is no
objection, errors of this type are waived. State v. Sutton, 562
S.W.2d 820, 825 (Tenn. 1978). This issue was waived.
Finally, the appellant contends that he was denied
effective assistance of counsel because his counsel did not
object to the leading questions or to the irrelevant and
prejudicial questions asked by the prosecutor. He also
contends that his counsel erred by failing to specifically ask
him whether he raped the victim.
The appellant has not cited a single case or any other
authority to support his contention that it is ineffectiveness to
fail to object to questions of these sorts or to specifically ask a
defendant if he is guilty of the crime. Bald assertions
unaccompanied by citations to authority amount to a waiver of
2
the issues asserted. Rule 27(a)(7), Tenn. R. App. P., State v.
Galloway, 696 S.W.2d 364, 369 (Tenn. Crim. App. 1985). This
issue was waived.
State v. Ricky Trice, No. 01-C-01-9105-CR-00143, Davidson County (Tenn. Crim. App.
Mar. 19, 1992), app. denied (Tenn. July 29, 1992).
Relevant to the issues on appeal, the petitioner testified at the post-
conviction hearing that the prosecutor had mentioned such things at the trial as him
holding a knife to his ex-wife’s throat and kicking her with cowboy boots. However, he
acknowledged that the state’s position at trial related to his violent acts being seen by
the victim, the inference being that the victim did not immediately disclose his sexual
assaults because of fear. In any event, he was upset with his issues being waived on
appeal.
The appellate attorney testified that he could not find any cases directly
on point about the trial attorney’s total failure to object constituting the ineffective
assistance of counsel or about the prosecutor’s actions constituting misconduct. He
testified that he found a federal case while the petitioner’s case was pending review by
the Tennessee Supreme Court, but it indicated that a total failure to object did not rise
to the level of ineffective assistance. Also, he acknowledged that shortly after the
petitioner’s case ended, he learned of State v. John Wesley Hobbs, No. 02-C-01-9104-
CR-00056, Shelby County (Tenn. Crim. App. Nov. 27, 1991), which he claimed
“condemned a lot of the tactics” similar to the ones used by the prosecutor in the
petitioner’s case. The attorney testified that he did not believe that the rules governing
appeals in the court of criminal appeals called for waiver just because no authority was
cited.
The trial court found that the petitioner’s appellate attorney was diligent in
his research. Relative to this court’s decision in Hobbs, the trial court noted that it was
3
decided before the appellate argument in the petitioner’s case, but it concluded that the
attorney’s failure to discover it did not render his representation ineffective. As for the
issue of prosecutorial misconduct and the failure of the trial attorney to object, the trial
court found that the issue did not constitute plain error and that the claim of the trial
attorney’s ineffectiveness was previously determined in the direct appeal.
To obtain relief, the petitioner had to show that his appellate attorney’s
performance was deficient and that the deficient performance prejudiced him in the
context of him receiving an unfair result in the prosecution. See Rhoden v. State, 816
S.W.2d 56 (Tenn. Crim. App. 1991). Strickland v. Washington, 466 U.S. 668, 686-87,
104 S. Ct. 2052, 2064 (1984); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985). In
reviewing the issue, the findings of fact of the trial court are conclusive on appeal
unless the evidence preponderates against them. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990).
As for the appellate attorney’s conduct in the direct appeal, the record
supports the trial court’s conclusion that it was not ineffective assistance of counsel for
the attorney not to discover the Hobbs decision earlier. However, we are concerned
about the appellate attorney’s apparent lack of understanding of the appellate rules and
apparent limitation on the use of his research to cases “directly on point.” The fact that
citing no authorities in an appellate brief constitutes a waiver of the issue, as noted in
this court’s opinion in the petitioner’s direct appeal, is no new revelation. And limiting
appellate inquiry to cases directly on point would leave the vast majority of appellate
briefs without any authority to cite. In this vein, beside diligent research, analogy is any
competent counsel’s stock-in-trade tool for legal arguments.
However, appellate counsel’s deficiencies avail the petitioner nothing in
this case. He presents no authority or argument in his brief that justifies us concluding
4
that the questions and evidence presented at his trial constitute reversible error. As to
his substantive issues, the petitioner only states that his appellate attorney “could have
shown a reasonable possibility that the allegations of violence contributed to the
conviction,” citing Hobbs. Moreover, he cites neither to the record nor to authority that
would show that the prosecutor’s conduct constituted plain error.
In Hobbs, this court reversed a murder conviction because the state
introduced hearsay divorce records that alleged violence and misconduct by the
defendant against the victim. In the present case, the petitioner provides us no
specification of the evidence about which he complains, divulges no context of the
evidence that would focus consideration upon the relative probative value and danger
of unfair prejudice of that evidence, and presents almost no argument as to why the
evidence constitutes trial error, much less plain error. On the other hand, the
prosecutor’s stated reason for using evidence of the petitioner’s violent acts against his
wife is, on its face, a valid one. Under these circumstances and our independent review
of the trial record contained in the petitioner’s direct appeal of his convictions, we find
nothing that would have us conclude that the appellate attorney’s deficiencies in his
brief constituted prejudice to the petitioner’s cause.
Finally, we agree with the state’s argument in this appeal that the claim of
plain error in the convicting trial may not constitute a separate ground for relief in this
post-conviction proceeding. It has no evident independent constitutional basis and the
petitioner has not divulged one. To the extent it infers the ineffective assistance of trial
counsel, it involves an issue previously determined in the direct appeal.
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
5
_______________________________
Joseph M. Tipton, Judge
CONCUR:
____________________________
John H. Peay, Judge
____________________________
David H. Welles, Judge
6