Long v. State

• Decision Date: 08 February 1974
• Citation: 510 S.W.2d 83
• Parties: Jerry Bates LONG, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 83

510 S.W.2d 83

Jerry Bates LONG, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Feb. 8, 1974 Certiorari Denied by Supreme Court May 6, 1974.

Arnold Peebles, Jr., Nashville, for plaintiff in error.

David M. Pack, Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, Guy Dotson, Dist. Atty. Gen., Murfreesbor, for defendant in error.

OPINION

OLIVER, Judge.

Serving a 15-year armed robbery sentence adjudged in the Rutherford County Circuit Court upon conviction by a jury, while represented by retained counsel, which was affirmed on direct appeal to this Court on June 13, 1972 following which the Supreme Court of this State denied his petition for the writ of certiorari, Long is now before this Court upon his appeal from the judgment of the trial court dismissing his post-conviction petition following an evidentiary hearing.

The substance of the averments in the petition, as amended, attacking the validity of the petitioner's conviction are (1) 'the shocking inadequacy' of his trial attorney's representation of him, because (a) his conduct was unethical and bordered on criminal conduct, (b) he attempted to procure perjured testimony, (c) he failed to call as a defense witness the sheriff of Rutherford County whose testimony was material to his case, (d) he failed to move to suppress the testimony of the prosecutrix whose in-court identification 'was so tainted with illegal suggestive procedures' as would have required suppression of her testimony, and (e) his conduct 'was so abrasive and contemptuous that said conduct inflamed the jury in violation of petitioner's right to a fair trial and said conduct was such as would be deemed a sham and a mockery and led to a miscarriage of justice,' (2) 'non-disclosure to the Court and the jury that the prosecutrix had been shown a picture of the defendant prior to her in-court identification of the petitioner and told by State agents that they were showing her a picture of The man who robbed her, and after seeing said picture was unable to point out the defendant in a subsequent line-up,' and (3) that the State failed to reveal that Robert Lee Nelson, an alleged accomplice and prosecution witness, had been promised leniency by the State and has not yet been prosecuted.

At the beginning of the evidentiary hearing, petitioner's counsel orally undertook to add additional grounds not charged in the petition or amended petition. It is unquestionable that a post-conviction petitioner limits the inquiry to the questions he raises therein. As in other civil actions, he cannot allege one case and prove another; he can rise no higher than the averments set out in his petition; no relief can be sought or given upon grounds not raised therein. A habeas corpus or post-conviction petition must necessarily rest upon and be determined by the factual allegations it contains. Without such rules of orderly procedure a trial degenerates into chaos. This is the clear undergirding principle of the established rule that an evidentiary hearing is not required and no relief can be granted in a post-conviction case when the petition states no ground for relief. Carvin v. State, 2 Tenn.Cr.App. 220, 452 S.W.2d 681; Floyd v. State, 2 Tenn.Cr.App. 250, 453 S.W.2d 418; Porter v. State, 2 Tenn.Cr.App. 437, 455 S.W.2d 159; Guy v. State, Tenn.Cr.App., 470 S.W.2d 28; Crumley v. Tollett, Tenn.Cr.App., 474 S.W.2d 148; Arthur v. State, Tenn., 483 S.W.2d 95; TCA § 40--3809.

The court limited the proof to the first ground of relief raised in the petition, as above indicated, and declined to consider the averment about Robert Nelson or his affidavit in support thereof but did permit it to be filed.

James Patrick, the petitioner's retained trial attorney, testified that the first trial ended in a mistrial and the petitioner was convicted in his second trial; that at the forst trial the sheriff testified, in the absence of the jury, that the victim could not positively identify the petitioner in a line-up; that the trial court ruled the line-up was tainted and excluded evidence concerning it; that the court's ruling affected the defense as well as the State; that in the second trial he did not call the sheriff as a witness, possibly because of oversight and partly because the court had ruled that the line-up was tainted and evidence concerning it was inadmissible, and he understood that the court's ruling prevented him from presenting any evidence concerning that line-up, but he believed the sheriff's testimony might have been presented to impeach the testimony of the victim's wife; and that he conferred with the petitioner about calling each and every witness.

Long testified that he and Patrick talked about whether to call the sheriff; that he requested that the sheriff be called as a witness, but Patrick said that he did not want to get into the line-up matter but offered no other explanation.

In the course of his decision dismissing this petition, the trial judge, referring to his trial notes, stated that everybody conceded the line-up was improper and that he would not permit the State to introduce evidence concerning it to buttress the identification of the victims at the trial; that Attorney Patrick then asked if the defense would be permitted to inquire as to the line-up; that he told him 'That's up to you,' or words to that effect, and that if he went into the line-up question it would open up the whole matter for exploration by the Attorney General; and that apparently as a matter of trial strategy Attorney Patrick decided he did not want to go into that question.

The court said with reference to Attorney Patrick's representation of the petitioner: 'It was a very hard fought case. Mr. Patrick, from the defense standpoint, had very strong proof, I know, and the Court was impressed then, as I was after the trial, with the way both the State and the defense conducted the trial, and I don't know anything that Mr. Patrick could have done that he didn't do. He fought this thing as hard as he possibly could . . . He put up a very diligent, hard defense for this defendant. This record shows that . . . Mr. Long, in the Court's opinion, in all fairness to him, was not convicted in this case because of any action on the part of Mr. Patrick. The facts of this case convicted Mr. Long.'

In a habeas corpus or post-conviction proceeding, the burden is on the petitioner to prove his allegations attacking the validity of his conviction. Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754; Morgan v. State, 1 Tenn.Cr.App. 454, 445 S.W.2d 477; State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 199, 433 S.W.2d 96; Shepard v. Henderson, 1 Tenn.Cr.App. 694, 449 S.W.2d 726; State ex rel. Carroll v. Henderson, 1 Tenn.Cr.App. 427, 443 S.W.2d 689.

In considering Assignments of Error challenging the correctness of the trial judge's findings and dismissal of the petitioner's petition, we are bound to adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court's judgment. Such findings of a trial judge in an oral hearing, who sees and hears the witnesses testify, and hears and considers conflicting testimony, will be given the weight of a jury verdict. Bratton v. State, supra, and cases therein cited.

With respect to the petitioner's charge that his trial counsel failed to represent him adequately by not moving to suppress the testimony of the prosecutrix whose in-court identification of him was based on illegally suggestive procedures, we have examined the record of his direct appeal to this Court, as we are unquestionably authorized to do. State ex rel. Leighton v. Henderson, 1 Tenn.Cr.App. 598, 448 S.W.2d 82; Canupp v. State, 3 Tenn.Cr.App. 249, 460 S.W.2d 382; State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186; State ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 376 S.W.2d 451. It is clear from this record that the person whom the petitioner now refers to as the prosecutrix was the wife of the robbery victim, who was present in the home when the robbery occurred and she swore out the State warrant for Long's arrest. He raised the same question about her identification of him in his appeal to this Court. As reflected in this Court's opinion, following an investigation apart from the jury the trial judge excluded (1) a photograph of Long which Mrs. Matthews (the robbery victim's wife) looked at and which was taken from such a distance that one would have to know him in order to recognize him, and (2) all evidence concerning the police identification line-up, and the trial court found that her in-court identification was founded upon her observation of Long at the time of the crime and was not tainted by any subsequent occurrence. This Court agreed and found no error in the admission of Mrs. Matthews' in-court identification.

It is fundamental that habeas corpus and post-conviction proceedings may not be employed to raise and relitigate or review questions decided and disposed of in a direct appeal. Morgan v. State, supra; State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667; State ex rel. Smith v. Bomar, 212 Tenn. 149, 368 S.W.2d 748, cert. den., 376 U.S. 915, 84 S.Ct. 670, 11 L.Ed.2d 612; ...