         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                           JULY 1998 SESSION
                                                     FILED
                                                      August 26, 1998

                                                     Cecil Crowson, Jr.
ANTHONY J. ROBINSON,                  )              Appellate C ourt Clerk
                                      )    NO. 02C01-9707-CR-00275
      Appellant,                      )
                                      )    SHELBY COUNTY
VS.                                   )
                                      )    HON. W. FRED AXLEY,
STATE OF TENNESSEE,                   )    JUDGE
                                      )
      Appellee.                       )    (Post-Conviction)



FOR THE APPELLANT:                         FOR THE APPELLEE:

BARBARA D. MACINTOSH                       JOHN KNOX WALKUP
474 Perkins Extended, Suite 205            Attorney General and Reporter
Memphis, TN 38117-3803
                                           MARVIN E. CLEMENTS, JR.
                                           Assistant Attorney General
                                           Cordell Hull Building, 2nd Floor
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           WILLIAM L. GIBBONS
                                           District Attorney General

                                           C. ALANDA HORNE
                                           Assistant District Attorney General
                                           201 Poplar Ave, Suite 301
                                           Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Anthony J. Robinson, appeals the trial court’s denial of his

petition for post-conviction relief. Having been originally convicted by a Shelby

County jury of aggravated rape, he now contends in his post-conviction petition

that he was afforded ineffective assistance of counsel at his trial. The judgment

of the trial court is AFFIRMED.



                                          I.



       The petitioner was convicted of aggravated rape and sentenced to thirty-

seven (37) years. The conviction was affirmed on direct appeal. State v.

Anthony J. Robinson, C.C.A. No. 02C01-9210-CR-00245, Shelby County (Tenn.

Crim. App. filed July 14, 1993, at Jackson). The petitioner subsequently filed a

pro se petition for post-conviction relief. Counsel was appointed and an

amended petition filed. After a hearing, the trial court denied the petition for

post-conviction relief, making extensive findings of fact and conclusions of law.

This appeal followed.



                                          II.



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.

Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a

jury verdict, and this Court is bound by the trial court’s findings unless the

evidence in the record preponderates against those findings. Henley v. State,

960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn.

Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).

This Court may not reweigh or reevaluate the evidence, nor substitute its


                                          2
inferences for those drawn by the trial judge. Henley v. State, 960 S.W.2d at

578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the

credibility of witnesses and the weight and value to be given to their testimony

are resolved by the trial court, not this court. Henley v. State, 960 S.W.2d at

579; Black v. State, 794 S.W.2d at 755. The burden of establishing that the

evidence preponderates otherwise is on petitioner. Henley v. State, 960 S.W.2d

at 579; Black v. State, 794 S.W.2d at 755.



                                         III.



       The petitioner raises five issues concerning his claim of ineffective

assistance of counsel. They are as follows:


              (1) trial counsel was inexperienced;

              (2) counsel did not sufficiently confer with petitioner
              prior to trial;

              (3) counsel failed to interview witnesses the petitioner
              provided;

              (4) counsel failed to adequately investigate the case;
              and

              (5) counsel failed to discover the victim’s medical
              reports.



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

petitioner has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,

104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996);

Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at

899.

                                          3
       In reviewing counsel's conduct, a "fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct

from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at

689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt

the defense, does not, standing alone, establish unreasonable representation.

However, deference to matters of strategy and tactical choices applies only if the

choices are informed ones based upon adequate preparation. Goad v. State,

938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v.

State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).



                                          A.



       The petitioner claims counsel’s lack of trial experience constituted

ineffective assistance. The trial court noted the petitioner claimed, but presented

no evidence, that his was the first trial that counsel conducted. Further, the trial

court noted that inexperience, in itself, does not equate to ineffective assistance.

We concur. The petitioner must identify specific acts and omissions to support

the claim. The petitioner does not; therefore, this issue is without merit.



                                          B.



       The next allegation is that counsel failed to adequately confer with the

petitioner prior to trial. The trial court found counsel visited the petitioner

numerous times prior to trial, and the petitioner admitted that he had reviewed

the evidence with counsel. Contrary to the petitioner’s contention, the trial court

further found that co-counsel also met with the petitioner on two (2) separate

occasions. There is no evidence the petitioner did not have the opportunity to

fully explain his version of the facts to counsel. This issue is without merit.



                                           4
                                         C.



       Petitioner’s third issue is that counsel failed to interview and present

witnesses provided by petitioner; namely: Leslie Johnson, Anthony Coleman,

and Brian Maxwell. Counsel testified the petitioner only gave him the names of

Leslie Johnson and Yamika Coleman. Counsel testified that he was unable to

find Leslie Johnson, and Yamika Coleman testified for the state. Counsel further

testified that he did not remember being given the name of Anthony Coleman,

and that Brian Maxwell’s name was only brought to his attention at the close of

proof at trial.



       When a petitioner contends that trial counsel failed to discover, interview,

or present witnesses in support of his defense, these witnesses should be

presented by the petitioner at the evidentiary hearing. Black v. State, 794

S.W.2d at 757; see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App.

1996). As a general rule, this is the only way the petitioner can establish that (a)

a material witness existed and the witness could have been discovered but for

counsel’s neglect in his investigation of the case, (b) a known witness was not

interviewed, (c) the failure to discover or interview a witness inured to his

prejudice, and (d) the failure to have a known witness present or call the witness

to the stand resulted in the denial of critical evidence which inured to the

prejudice of the petitioner. Black, 794 S.W.2d at 757. Neither the trial court nor

this Court can speculate on what a witness’ testimony might have been if

introduced by counsel. Id.



       Neither Leslie Johnson nor Anthony Coleman appeared at the post-

conviction hearing; thus, any allegation based upon their alleged testimony is

speculative and without merit. Counsel testified that he was only made aware of

Brian Maxwell’s testimony at the close of proof, and that Maxwell gave evasive

answers upon being interviewed by counsel. The trial court characterized



                                          5
counsel’s decision not to present the testimony of Maxwell as “sound trial

strategy.” We agree. This issue is without merit.



                                           D.



         The petitioner’s fourth assignment of error is that counsel failed to make a

reasonable investigation of the facts. The trial court found there was no

evidence that counsel failed to adequately investigate the case. Counsel

testified that there was an adequate investigation. The evidence supports the

post-conviction court’s finding in this regard. Further, there was no showing as to

any beneficial information that further investigation would reveal. This issue is

without merit.



                                            E.



         Finally, the petitioner alleges counsel was ineffective for failing to discover

medical reports concerning the victim. Petitioner contends this failure prevented

counsel from fully investigating the prior sexual history of the victim.



         The trial court noted counsel filed two (2) pre-trial motions seeking to

discover information about the victim’s sexual history. These motions were

denied by the trial court. The trial transcript reveals that counsel was aware of

the medical reports prior to trial. Furthermore, there was medical testimony at

trial indicating prior sexual activity of the victim. The petitioner does not specify

what information counsel failed to discover that would have been helpful to the

petitioner’s defense. The petitioner, therefore, has failed to prove that counsel

provided deficient performance or that he was prejudiced. This issue is without

merit.



                                     CONCLUSION



                                            6
        The record in this case reflects model findings of fact and conclusions of

law by Judge W. Fred Axley. His findings addressed all grounds for relief

alleged by the petitioner. Those factual findings are contrary to petitioner’s

contentions and, for all practical purposes, foreclose any relief by this Court.

The trial judge was in a much better position than this Court to determine the

credibility of the witnesses. We yield to the trial judge’s determination as to

credibility.



        The petitioner has failed to meet the burden for establishing ineffective

assistance of counsel as mandated by Strickland v. Washington, supra. The trial

court found that counsel’s performance was within the range of acceptable

professional assistance. Further, petitioner has failed to demonstrate that he

was prejudiced as the result of counsel’s performance.



        Accordingly, the judgment of the trial court is AFFIRMED.




                                           _________________________
                                           JOE G. RILEY, JUDGE




CONCUR:


                                          7
_________________________
CURWOOD WITT, JUDGE




_________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE




                            8
