             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                          FEBRUARY 1996 SESSION
                                                           December 9, 1997

                                                          Cecil W. Crowson
THOMAS NEWSOME, JR.,          )                          Appellate Court Clerk
                              )
             Appellant,       )    No. 01C01-9506-CR-00167
                              )
                              )    Davidson County
v.                            )
                              )    Honorable Ann Lacy Johns, Judge
                              )
STATE OF TENNESSEE,           )    (Post-Conviction)
                              )
             Appellee.        )


For the Appellant:                 For the Appellee:

J. Timothy Street                  Charles W. Burson
136 Fourth Avenue South            Attorney General of Tennessee
Franklin, TN 37064                        and
                                   Clinton J. Morgan
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Victor S. Johnson, III
                                   District Attorney General
                                           and
                                   Roger Moore
                                   Assistant District Attorney General
                                   Washington Square
                                   222 2nd Avenue North
                                   Nashville, TN 37201-1649




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, Thomas Newsome, Jr., appeals as of right from the denial

of his petition for post-conviction relief by the Davidson County Criminal Court. The

petitioner complains about his 1988 convictions for aggravated rape and aggravated

kidnapping for which he received an effective sentence of fifty-five years in the custody

of the Department of Correction. His sole claim in this appeal is that the trial court erred

when it determined that the petitioner received the effective assistance of counsel.



              The petitioner’s first convictions for these offenses were reversed upon

direct appeal. State v. Thomas Newsome, No. 86-186-III, Davidson County (Tenn.

Crim. App. Dec. 12, 1986). He was convicted in a second trial, and the judgments of

conviction were affirmed on appeal. State v. Newsome, 798 S.W.2d 542 (Tenn. Crim.

App. 1990). It is from these convictions that he seeks relief.



              The gist of the petitioner’s argument is that there are inconsistencies in

the testimony given by the victim in the first and second trials that her trial attorney in

the second trial should have pursued. These inconsistencies relate to such things as

what the victim said to the petitioner at the scene of the crime, where the petitioner hid

his gun on his person at the time of the kidnapping, and the specific timing of the

offenses.



              The basic evidence provided by the victim was that she went riding with

two friends and as she got into the car, the petitioner, who she knew by name, yelled at

her not to get into the car. The victim got into her friends’ car, but the petitioner

followed in his car. Subsequently, both cars stopped, and the petitioner got out, saying

that she should get out of the car. She refused, but the petitioner pulled a gun. The

victim then got into his car. According to her, she was fearful of him and believed that



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she had no choice. They ended up in a parking lot, and the petitioner told her to take

off her clothes. After having intercourse with her, the petitioner took the victim to the

neighborhood where she lived and let her out of the car. Medical evidence was

consistent with rape.



              At the evidentiary hearing, the petitioner acknowledged that the evidence

presented in both cases was basically the same. The trial attorney testified that she

saw nothing in the discrepancies that would have her question her performance at the

trial. The trial court concluded that the trial attorney’s performance was not deficient

and that, in any event, the inconsistencies would not have affected the outcome of the

trial. We agree.



              Under the post-conviction law applicable to the petitioner’s case, the

burden was on him in the trial court to prove by a preponderance of the evidence the

factual allegations that would entitle him to relief. Brooks v. State, 756 S.W.2d 288,

289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial court’s findings

unless we conclude that the evidence in the record preponderates against those

findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

the petitioner, as the appellant, has the burden of illustrating how the evidence

preponderates against the judgment entered. Id.



              Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel's

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to



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counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989).



              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; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured

by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even

hurt the defense does not, alone, support a claim of ineffective assistance. Deference

is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.



              Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations of deficient

performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



              We have reviewed the transcripts of the first trial, the second trial, and the

post-conviction evidentiary hearing. Although the discrepancies cited by the petitioner

do exist, we see nothing presented that indicates that the failure to raise them fell below

the range of competency demanded of counsel in criminal cases. Likewise, we view



                                             4
the discrepancies as matters of no consequence to the end result of the trial. Under

these circumstances, the evidence in the record on appeal does not preponderate

against the trial court’s findings and conclusions.



              The judgment of the trial court is affirmed.




                                                 _________________________
                                                 Joseph M. Tipton, Judge


CONCUR:



___________________________
Paul G. Summers, Judge



___________________________
David H. Welles, Judge




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