         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 19, 2008

                 MARK ARMSTRONG v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                        No. F-58801 James K. Clayton, Jr., Judge



                      No. M2007-01614-CCA-R3-PC - Filed June 25, 2008


The petitioner, who is serving a twenty-year sentence for aggravated rape, filed the present post-
conviction action alleging he did not receive the effective assistance of counsel at trial. The trial
court conducted a hearing and denied his claim, and he appealed. Upon review, we hold that the trial
court did not err in denying relief, and we affirm its judgment.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
JOHN EVERETT WILILAMS, JJ., joined.

Gerald L. Melton, District Public Defender, for the appellant, Mark Armstrong.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and Laural A. Nutt, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

          The petitioner was convicted by a Rutherford County Circuit Court jury of aggravated rape
of a thirteen-year-old girl who lived in his neighborhood. At trial, the state relied on the victim’s
testimony and physical evidence, including DNA evidence. The petitioner elected not to testify at
trial, although there was evidence of his pretrial statement, in which he claimed to have been on the
telephone during the time the victim said the offense occurred. See State v. Mark S. Armstrong, No.
M2004-02432-CCA-R3-CD, Rutherford County (Tenn. Crim. App. May 11, 2005), app. denied
(Tenn. Dec. 19, 2005).

       The petitioner testified at the post-conviction hearing that his trial attorneys failed to obtain
independent DNA testing of the bedding. He said the state’s test revealed a match to his DNA from
the bedding but was inconclusive with respect to the victim’s DNA. He said the test should have
been performed because it would have either confirmed or denied the state’s allegations against him.
The defendant admitted that he had consensual sexual relations with the victim but stated he “didn’t
do nothing . . . aggravated or anything of that nature.” He said the victim had lied about the
circumstances of the offense. The petitioner testified that counsel failed to introduce evidence of the
victim’s background and failed to cross-examine the victim about her character, although he did not
provide specific information in his testimony about this claim. He said that he met with counsel
about twenty times before trial and that counsel went over the charges with him and the state’s
burden to prove the charges. He said that they also discussed “[t]o some extent” whether the
petitioner would testify and his reservations about testifying because his family would find out that
he had engaged in sexual activity with the victim. He said counsel advised him of the state’s
settlement offer for him to plead guilty to the lesser offense of rape and receive a sentence of ten
years. The petitioner acknowledged a document bearing his signature which stated that he had
discussed with his attorneys his right to testify at trial and had decided not to testify and had refused
to allow his attorneys to pursue a defense which would allow the jury to find him guilty of statutory
rape. He stated that he did not read the document at the time he signed it and that he was advised
that he could not testify that he did not have sexual relations with the victim.

         One of the petitioner’s two trial attorneys testified that he met with the petitioner numerous
times before trial and that he discussed the nature of the charge, the possible sentence, and the facts
of the case with the petitioner. He said the petitioner would not allow him in plea bargaining to
reveal to the prosecutor that the petitioner and the victim had consensual sex. He said that he told
the petitioner that he had a possible defense which might result in conviction on a lesser charge
based upon the consensual nature of the defendant’s actions but that the petitioner did not want his
family to know he had engaged in sexual activity with the victim. He said he told the petitioner that
in light of the petitioner’s wishes about not pursuing a defense based on consent, his ability to
present a successful defense on the petitioner’s behalf was limited. He said that he was apprehensive
about going to trial but that the petitioner did not want to accept the ten-year plea offer because the
petitioner did not want his wife to find out about the sexual activity. He said that he advised the
petitioner he could enter a best interest plea but that the petitioner still was not interested. He said
that he and co-counsel extensively discussed with the petitioner “every aspect of how the trial was
going to progress,” given the petitioner’s insistence that he would not plead guilty or allow counsel
to present a consent defense. He said that he and co-counsel did not pursue independent DNA
testing because he thought the inconclusive DNA result allowed the inference that the unidentified
DNA belonged to a member of the defendant’s family, rather than the victim. He said he discussed
with the petitioner the advantage of the inconclusive result. He said that in his investigation, he “got
a lot of stories” about the victim but was unable to verify the information. He said that he attempted
to contact “several people” but that he was unable to speak with some of them because their parents
would not give permission for their children to speak with him.

        To the extent that the evidence conflicted, the trial court accredited the testimony of trial
counsel over that of the petitioner. The court found that the petitioner’s attorneys were limited by
the petitioner in the type of defense they were able to stage but that they “did as good a job as they
possibly could have under the circumstances.” The court found that the petitioner understood the
risk he was taking in deciding not to testify and pursue a consent defense and that he did so
knowingly and voluntarily.



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        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457. Post-conviction relief may only be given if a conviction
or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

        Under the Sixth Amendment to the United States Constitution, when a claim of ineffective
assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance
was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show that
the counsel’s representation fell below an objective standard of reasonableness or “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The
prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the
denial of relief. Id. at 697, 104 S. Ct. at 2069.

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance 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, 466 U.S. at 689, 104 S. Ct. at 2065. “Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

        The petitioner has raised several specific allegations of counsel’s shortcomings on appeal.
They are: failure to obtain an independent DNA test after receiving the results of the state’s test,
failure to investigate the victim’s background and character adequately, failure to advise him
adequately of all of the facts which were necessary for the petitioner to make informed decisions,
and counsel’s trial decisions were influenced negatively by the petitioner’s admission to counsel of
having engaged in sexual activity with the victim.

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         With respect to each of these allegations, the record reflects that trial counsel offered an
explanation of his and co-counsel’s actions and that the trial court accredited the testimony of trial
counsel in denying the petition. Trial counsel testified that he thought the inconclusive DNA test
result was to the defense’s advantage because it did not exclude the possibility that the unknown
contributor was a member of the petitioner’s family, rather than the victim. Counsel said he
discussed this with the petitioner before trial. He said he investigated the victim’s background and
character but was unable to corroborate rumors he heard about the victim and was unable to speak
with some juvenile witnesses because their parents would not consent. Both counsel and the
petitioner testified that they met numerous times, and counsel testified about having covered many
areas with the petitioner. Counsel testified that he and co-counsel spent more time and effort than
usual with the petitioner on preparing the defense because of the petitioner’s desire that his conduct
with the victim not be exposed to his family. Counsel’s testimony demonstrates that he and co-
counsel did everything they could to accommodate the petitioner’s desire regarding the course of the
defense while still performing as zealous advocates for the petitioner. We hold that the trial court
properly determined that the petitioner failed to establish that counsels’ performance was deficient
or that he was prejudiced by counsels’ performance. The trial court properly denied post-conviction
relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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