         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 17, 2002

             TERRY DAVID STEPHENS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                        No. 96-C-1248    Cheryl Blackburn, Judge



                  No. M2001-01036-CCA-R3-PC - Filed December 30, 2002


The petitioner was convicted in 1996 of aggravated rape and sentenced to confinement for twenty
years as a Range I, standard offender. The conviction was affirmed on direct appeal and,
subsequently, he filed a timely petition for post-conviction relief. The post-conviction court
dismissed the petition following a hearing, and the petitioner timely appealed, alleging that trial
counsel was ineffective for failing to convey settlement offers and to request jury instructions as to
lesser-included offenses. The post-conviction court dismissed the petition following a hearing, and
we affirm that dismissal.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES
CURWOOD WITT, JR., JJ., joined.

Jesse N.H. Bacon, Madison, Tennessee, for the appellant, Terry David Stephens.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       The evidence at trial was set out in the direct appeal of the petitioner’s conviction:

                   On July 22, 1992, Rosalind Cackley took the victim to Our Kids
               Center, an outpatient clinic that provides medical evaluations for
               children with allegations of sexual abuse. Sue Ross, a registered
               nurse and pediatric nurse practitioner, participated in the examination
               of TDS. Ms. Ross recalled that the verbal interview of TDS was very
difficult, specifically remarking that TDS requested a male
interviewer, was "resistive" in some ways, and was not very verbal.
During this interview, the victim informed Ms. Ross that his brother
was in a bedroom and that his father was not drunk and did not
apologize for this incident afterwards. Nonetheless, the child did
discuss "penile rectal penetration" by his father. Ms. Ross also
performed the genital examination of the victim. She remarked,
"[t]here were no . . . physical findings, any remarkable physical
findings at all on the anal genital portion of the exam." Ms. Ross
explained, however, that usually there would not be any physical
findings, even twenty-four hours after the alleged abuse occurred, and
this incident allegedly occurred months earlier. Ms. Ross then
referred this alleged incident of child abuse to the Davidson County
Department of Human Services.

    Tammy Burns, a social counselor with DHS, was assigned to
investigate the allegation of abuse concerning TDS. Ms. Burns made
telephone contact with Rosalind Cackley and arranged to meet with
her, the victim, and the victim's brother. On July 30, 1992, Ms. Burns
conducted her interview during which time TDS recounted the
incident of February 6, 1992. Mrs. Burns' testimony, which followed
the testimony of Ms. Ross, was objected to by defense counsel upon
hearsay grounds. Her notes of the interview, which were introduced
during the State's case in chief, reveal:

   [TDS] said his father anally penetrated him in Nashville at his
   grandmother's house when she lived on Cahal Street. He said
   it happened two days before his birthday, which was February
   6, 1992, or 1982. [TDS] said the night it happened, his father
   had been drinking alcohol and he remembered that his father
   had received his income tax check earlier that day. He said he
   and his brother had to sleep in the living room because there
   were so many people there that night. [TDS] said [his
   brother] was asleep on the couch, and he was asleep on the
   floor. When they went to bed, his father was still out with his
   friends. He knew his father was planning to leave Nashville
   the next day; however, his father had not told him where he
   was going nor when he planned to return. [TDS] said his
   father woke him up and was talking funny and had alcohol on
   his breath.

    According to [TDS], the lights in the house were off. His
    father got under the covers with him and took his underwear


                                 -2-
                   and pants off. [TDS] said his father told him to take his
                   underwear and pajama bottoms off. When he did, his father
                   told him to turn over. [TDS] said his father then put his penis
                   inside his butt.

                   [TDS] explained that after his father finished, he told him he
                   was sorry and that he wouldn't have done it if he had not been
                   drunk.

                   At this point in the interview, [TDS] became emotional and
                   said he didn't want to talk about his father any longer. [TDS]
                   said he did not want to answer any more questions, and that
                   [his younger brother] would have to explain what happened
                   to him because he was finished talking.

                   At the conclusion of this interview, Tammy Burns contacted the
               Metro Nashville Police Department, Youth Services Division.
               Furthermore, as a protective plan, the children were not permitted
               unsupervised visitation with their father. For the next two years, the
               children remained in Nashville in the custody of the appellant's
               mother, Rosalind Cackley.

                   On May 3, 1994, the Department of Children's Services (formerly
               DHS) received information that the appellant may have had contact
               with his children. In response to this referral, Malinda Lundie, a
               sexual abuse investigator, and Detective Ron Carter, Metro Police,
               Youth Services Division, traveled to the home of Rosalind Cackley
               to check on the children's well-being. Although Detective Carter was
               unable to locate the appellant, arrangements were made for the
               children to live with Anthony Michael "Mike" Battiato, the
               appellant's half-brother, who at this time was a resident of Tennessee.
               Battiato obtained custody of TDS and his younger brother after being
               appointed their legal guardian. Battiato, his friend Samuel, and the
               two children moved to Omaha, Nebraska in December 1995. This
               concluded the State's proof.

State v. Terry Stephens, No. 01C01-9709-CR-00410, 1998 WL 603144, at **1-2 (Tenn. Crim. App.
Aug. 24, 1998) (footnotes omitted), perm. to appeal denied (Tenn. Mar. 1, 1999).

        Subsequently, the petitioner filed a petition for post-conviction relief presenting various
allegations which, on appeal, have been limited to the claims that trial counsel was ineffective for
failing to convey settlement offers and to request that the jury be instructed as to lesser-included
offenses.


                                                -3-
       During the hearing on the petition for post-conviction relief, the petitioner testified as to these
claims. He was asked whether he had discussed guilty plea offers with trial counsel:

                Q. Okay. Did you discuss the option of negotiating a plea versus
                   going to a trial?

                A. He came to me a couple of times and said that they had offered
                   me 10 to 12 years and I told him no, and there was a couple of
                   times they offered that, and then one time he came and said that
                   they had offered me – I was upstairs, in fact, and he said they had
                   offered me nine at thirty, and he had turned it down, and I was
                   kind of skeptical of that. I was like, well, you know, I should
                   have maybe heard something about that, but I wasn’t made aware
                   of all these agreements or pleas that they was making, but I never
                   accepted any.

                Q. So your testimony is that [trial counsel] never relayed that offer
                   to you until after it was denied?

                A. Yes. He told me that he had denied it.

                Q. Okay. Had you given [trial counsel] instructions as to whether he
                   was to accept any offers?

                A. No, sir.

                Q. Or did you give him instructions as to deny offers?

                A. No, sir.

        The petitioner also was asked to explain his claim as to lesser-included offenses:

                Q. Okay. Now one of the other issues that was raised was the fact
                   that there were no lesser included offenses given in your jury
                   instructions. Did you ever request [trial counsel] to argue for
                   lesser included offenses?

                A. See, this is the first time I had ever been involved in anything like
                   this, and I was more reliant on [trial counsel] . . ., you know, to do
                   what was needed to be done. I mean, you know, but I didn’t –
                   like I say, I’m still not real up on the law, but I’ve tried to learn as
                   much as I can.



                                                   -4-
                Q. Well, do you recall ever discussing that issue before the trial?

                A. No, sir.

                Q. Or during the trial, was it discussed?

                A. No, sir. Well, yes, I believe [trial counsel] was saying during the
                   trial that he didn’t want no lesser includeds. It was either rape or
                   nothing.

                Q. Were you in agreement with that?

                A. Well, when he read that, that was before the Court and everybody
                   and it was like I didn’t understand that, but like I say, he kept
                   telling me that everything was going good, and so I just kind of
                   put my trust in him.

        The petitioner’s trial counsel testified that he had been licensed to practice law in 1966, and
his practice consisted of “predominantly criminal defense work with a particular emphasis upon
crimes of violence such as sexual assaults, murder, as opposed to white collar-type criminal matters.”
He said that “quite a few” of his cases resulted in jury trials. Trial counsel described the stance taken
by the defendant as to the charge:

                     The defense position was that Mr. Stephens was not guilty. He
                felt so strongly about that that there was really no factual foundation
                for any lesser included instruction, and if my memory is correct, it
                was my position and Mr. Stephens’ position that this was either guilty
                or not guilty; that he was indeed simply not guilty of any misconduct
                with his son, so therefore, there certainly would not have been any
                argument as to lesser included offense.

        As to whether the State had presented a proposal to settle the matter, trial counsel testified:

                    Well, I don’t recall the details of the offer, but anytime I received
                an offer, I would convey it to my client. This was a case, however,
                that it was clear was going to go to trial since Mr. Stephens, I thought,
                very convincingly indicated that he was not guilty, so I conveyed the
                offer, whatever it may have been, to Mr. Stephens, but he rejected the
                offer, and I think based upon his belief that he was not guilty, there
                was never any undue pressure put by me upon him to go ahead and
                plead guilty.




                                                  -5-
       During cross-examination, trial counsel was questioned as to whether he had discussed the
matter of lesser-included offenses with the petitioner:

               Q. Did Mr. Stephens at any time toward the end of the trial make any
                  indication to you that he had a problem with you not requesting
                  lesser included offenses?

               A. I do not recall that. Normally, a defendant would not make that
                  comment to his attorney. I don’t remember in this particular case,
                  but it was always clear to Mr. Stephens that this was a case that
                  our position was he did not do it, and I was certainly going to shy
                  away from indicating that he was not guilty, but if he did do it, it
                  wasn’t as serious as the State indicated. It was kind of either he
                  is not guilty or he is guilty. In this case, there was no effort made
                  to convince the jury that it should be a lesser included offense.

               Q. And was that issue ever discussed with Mr. Stephens prior to the
                  trial?

               A. I don’t have any independent memory. I believe in this case,
                  based upon our defense, that it probably was discussed, but I do
                  not have an independent memory at this time.

        Following the hearing on the post-conviction petition, the court made written findings of fact
and conclusions of law. As to the issue of whether trial counsel had conveyed to the petitioner any
guilty plea offers from the State, the post-conviction court found:

                   [Trial counsel] further testified that, even knowing that the matter
               would proceed to trial, anytime he received a plea offer from the State
               that he would convey the same to the petitioner. He also testified that
               the petitioner always rejected any offer and that he put no pressure on
               the petitioner to plead guilty. [Trial counsel] also testified that, since
               the petitioner’s position was that he was not guilty, that there would
               be no factual foundation for a lesser-included offense. As footnoted
               above, nevertheless, [trial counsel] did file a motion for just such a
               jury instruction.

The earlier footnote in the findings of the post-conviction court states as follows: “The court record
contains a Request for Range of Punishment Instruction as to the indicted offense and as to all
properly included lesser offenses filed by [trial counsel].”

        Additionally, the post-conviction court made a credibility determination as to the conflicts
in testimony between the petitioner and trial counsel:


                                                  -6-
                    Concluding that [trial counsel] is more credible in this regard than
                the Petitioner, this Court finds that the petitioner has also failed to
                carry his burden of proof by clear and convincing evidence on this
                issue. This Court find[s] that [trial counsel] kept the petitioner
                informed about his case, counseled the petitioner of all developments
                in his case, and properly preserved the petitioner’s rights. The
                petitioner has also failed to demonstrate any prejudice suffered as a
                result of [trial counsel’s] representation on this issue. This Court
                therefore finds that this issue is without merit and that it is hereby
                denied.

                                             ANALYSIS

                                 Ineffective Assistance of Counsel

       The standard of review which we apply was set out in Fields v. State, 40 S.W.3d 450, 456
(Tenn. 2001):

                     The standard of appellate review applied to ineffective assistance
                claims has always been that a trial court's findings of fact are entitled
                to substantial deference on appeal unless the evidence preponderates
                against those findings. See Henley v. State, 960 S.W.2d 572, 579
                (Tenn. 1997); Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
                Under this standard, appellate courts do not reweigh or re-evaluate
                the evidence or substitute their own inferences for those drawn by the
                trial court. Henley, 960 S.W.2d at 579. Furthermore, questions
                concerning the credibility of the witnesses, the weight and value to be
                given their testimony, and the factual issues raised by the evidence are
                to be resolved by the trial judge. Id.

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the


                                                  -7-
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel’s assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel’s conduct can satisfactorily take account of the
                variety of circumstances faced by defense counsel or the range of
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v.
State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).

       We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the


                                                  -8-
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”

        We now will consider the two issues presented in this appeal.

         The petitioner’s first claim was that while trial counsel “a couple of times” conveyed guilty
plea offers of “10 to 12 years,” he did not convey an offer of “nine at thirty,” but that counsel, upon
his own initiative, and without advising the petitioner, rejected this offer. Trial counsel, however,
testified that “anytime [he] received an offer, [he] would convey it to” the petitioner. He said that
the petitioner “rejected” the offer, and he thought “that it was clear [the case] was going to go to trial
since [the petitioner] . . . very convincingly indicated that he was not guilty.” The post-conviction
court heard the conflicting testimony on this issue and, finding trial counsel more credible than the
petitioner, concluded that the petitioner had failed to carry the burden of proof on this claim.

        The petitioner’s second claim is that “[c]ounsel was ineffective for not requesting a jury
instruction as to the lesser included offense” of aggravated sexual battery. As to this issue, the post-
conviction court determined that “[t]he court record contains a Request for Range of Punishment
Instruction as to the indicted offense and as to all properly included lesser offenses filed by [trial
counsel].” The record on appeal does not include the instructions given by the court at the
conclusion of the petitioner’s trial. Thus, we do not know what lesser-included offenses, if any, were
charged. However, this claim still must fail, because it was the responsibility of the trial court to
instruct as to appropriate lesser-included offenses regardless of what, if any, lesser-included offenses
counsel asked to be included in the jury instructions. See Tenn. Code Ann. § 40-18-110(a) (1997).
As was explained in Yasmond Fenderson v. State, No. E2001-01088-CCA-R3-PC, 2002 WL
832205, at *5 (Tenn. Crim. App. May 2, 2002), perm. to appeal denied (Tenn. Oct. 7, 2002), in
resolution of a similar claim, the “obligation to instruct as to these lesser-included offenses was
free-standing and not dependent upon the defendant's request for the instructions.” Additionally, we
note that the petitioner did not allege or offer proof in the post-conviction hearing that his counsel
was ineffective by failing to raise the lesser-included offense issue on appeal.

       As to his first claim, that trial counsel, himself, rejected an offer of nine years at thirty
percent, the post-conviction court accredited the testimony of trial counsel who denied that this had
occurred. The second claim, that trial counsel neglected to request that a lesser-included offense be
charged, is refuted by the record as cited by the post-conviction court; but, even if true, it would not


                                                   -9-
entitle the petitioner to post-conviction relief. It is the responsibility of the trial court to instruct as
to lesser-included offenses, and this duty is not dependent upon an appropriate request from trial
counsel. Thus, as to both of these claims, the post-conviction court determined that the petitioner
did not establish either that trial counsel was ineffective or that he was prejudiced by any action or
inaction of trial counsel. As to both of the petitioner’s claims, the record fully supports the
conclusions of the post-conviction court and its findings that the petitioner failed to establish either
that trial counsel was ineffective or that he was prejudiced thereby.

                                            CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the post-
conviction court denying relief.


                                                          ___________________________________
                                                          ALAN E. GLENN, JUDGE




                                                   -10-
