             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE

                        MARCH 1996 SESSION



STATE OF TENNESSEE,       )
                          )
         Appellee,        )     No. 03C01-9509-CC-00269
                          )
                          )     Sevier County
v.                        )
                          )     Honorable Ben W. Hooper, II, Judge
                          )
ROBERT WAYNE FRANTZ, JR., )     (Aggravated kidnapping and rape)
                          )
         Appellant.       )


For the Appellant:              For the Appellee:

Charles I. Poole                Charles W. Burson
133 Commerce St.                Attorney General of Tennessee
Sevierville, TN 37862                  and
                                Elizabeth T. Ryan
                                Assistant Attorney General of Tennessee
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Alfred C. Schmutzer, Jr.
                                District Attorney General
                                        and
                                Scott Green
                                Assistant District Attorney General
                                301 Sevier County Courthouse
                                Sevierville, TN 37862




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Robert W ayne Frantz, Jr., appeals as of right from his

conviction by a jury in the Sevier County Criminal Court for the offenses of aggravated

kidnapping and two counts of rape, Class B felonies. The trial court sentenced the

defendant as a Range II, multiple offender to fifteen years for each offense to be served

concurrently. In this appeal, the defendant contends that:

              (1) the trial court erred in restricting the defendant from cross-
              examining the victim about her divorce proceeding and the
              judicial determination of fact that the victim had engaged in an
              adulterous relationship with the defendant until mid-December
              1992; and

              (2) the defendant was denied the effective assistance of
              counsel when defense counsel could not cross-examine a
              witness about her prior inconsistent statements made to
              defense counsel.

We affirm the judgment of conviction.



              This case relates to events that took place on December 21 and 22, 1992.

Although the defendant does not challenge the sufficiency of the convicting evidence, a

brief summary of the testimony at trial is useful to the analysis of the issues raised.

Cheri Ward, the victim, testified that a consensual sexual relationship began between

her and the defendant in August 1992, approximately one month after she and her ex-

husband had separated and she had filed for a divorce. She said that she wrote the

defendant love letters. She stated that the relationship between her and the defendant

continued while the defendant was incarcerated in the county jail in Greenville, South

Caroline, on unrelated charges. The victim testified that she visited the defendant at

the jail and the defendant called her. She said that after speaking to Deputy Wesley

Smith of the Greenville County Sheriff’s Department in late November 1992, she

decided to end the relationship. She said that she informed the defendant of her

decision sometime during the first week of December 1992.




                                              2
             The victim testified that she saw the defendant on December 7, the same

day that the defendant was released from jail, when he came to her workplace. She

said that she told the defendant not to come to see her at work and that she did not

want to see him anymore. The victim stated that the defendant initially refused to

leave. She testified that when she left work that night, the defendant was in the parking

lot in his car parked next to her car. The victim said that the defendant asked if he

could come by her house to get some of his things and she told him to come at a later

date. She stated that the next day, the defendant called her at work several times. The

victim testified that on December 9, the defendant brought his son to her workplace for

her to cut his hair. She stated that although she told the defendant she did not want to

talk to him, he repeatedly questioned her whether she was seeing anyone and asked

that they work things out.



              The victim testified that the defendant was inside her house when she

returned from picking up her daughter on December 9. She said that the defendant

was very angry because one of her male friends was waiting outside in his car for her to

cut his hair. She stated that the defendant eventually left the house, and she called

Deputy Smith. The victim testified that when the officers arrived, the defendant was still

outside. She said that the defendant was placed on trespassing notice based on his

conduct, but the defendant continued to call her. She stated that the defendant also

left a message on her answering machine. The victim testified that on December 10,

she filed a complaint against the defendant for stalking, and from then until December

21, the defendant called less frequently. The victim denied seeing the defendant

romantically after she told the defendant that the relationship was over.



              The victim testified that on December 21, she received a telephone call at

work from the defendant. She said that the defendant had learned of the stalking

charges and was angry. She stated that the defendant told her to drop the charges or



                                            3
he would make her sorry, threatening to help the victim’s ex-husband obtain custody of

their daughter. The victim testified that she called Deputy Smith and her mother and

told them about the defendant’s actions and asked her mother to keep her daughter

overnight because she was afraid of the defendant.



             The victim testified that as she tried to shut the door after arriving at home

from work, the defendant stuck his hand in the door and pushed it open, causing her to

drop her purse, mail and packages. She said that the defendant grabbed her and

placed his hand over her mouth, telling her to be quiet and stating that he only wanted

to talk to her. During her testimony, the victim detailed the arguments and the assaults

that took place inside the house and explained the attempts she made to get away from

the defendant and seek help. She testified that the defendant eventually told her that

they were leaving and going to Caesar Mountain so she would listen to him. She said

that although she told him that she did not want to go, he forced her to leave the house.

The victim testified that she took her cigarettes, purse and beer with her, leaving

clothes, cosmetics, and contact solution behind. The victim testified that she screamed

and tried to run away from the defendant once they got outside. She said that the

defendant became angry, putting his arm around her to force her to go to the truck.

The victim stated that the defendant threatened to use a gun once they got inside the

truck.



              The victim testified that the defendant then drove to Caesar Mountain.

She said that the defendant told her that he was hurt and upset. The victim stated that

she told the defendant that she was sorry she hurt him and that she would drop the

charges if he would take her home. The victim also testified that they discussed

Christmas, and she said that she told the defendant that she and her ex-husband had

talked about going to Gatlinburg to see the Christmas lights but that she would no

longer be able to go. The victim recalled the defendant saying that she would be able



                                            4
to go. She stated that although the defendant told her that he was taking her home, the

defendant later stated that they were going for a ride and refused to take her home.

During her testimony, the victim described how the defendant watched her when he

stopped the truck and how she attempted to call her parents for help on one occasion.



              The victim testified that she had fallen asleep but awoke at approximately

4:30 a.m. when the defendant told her that they were in Gatlinburg, Tennessee. She

detailed how the defendant walked her into a hotel room and how she attempted to run

out the door while the defendant was in the jacuzzi tub, but the defendant grabbed her

and pushed her onto the bed. The victim stated that the defendant, who was nude, lay

beside her on the bed. The victim said that she fell asleep but was awakened by the

defendant rubbing her thighs and back and kissing her neck. She testified that

although she told the defendant to stop, he undressed her from the waist down and

penetrated her vagina with his finger and his penis. During her testimony, the victim

described other attempts to escape from the room and to use the telephone to call for

help.



              The victim testified that the defendant then took her to a drugstore to

purchase saline solution for her contacts and to purchase cosmetics. Before entering

the drugstore, the defendant told the victim that if she tried anything, he would use the

gun. The victim said that they also went to a restaurant before returning to the room at

approximately 12:00 or 12:30 p.m. The victim then described how the defendant raped

her a second time.



              The victim testified that they then left the motel room and drove up to ski

hill, and she said that the defendant threatened to kill them both by driving off the

mountain because he said that he could not live without the victim. She said that the

defendant then drove to Pigeon Forge where they went to several shops and made



                                             5
purchases. The victim claimed that she paid for her purchases with checks and credit

cards to leave evidence of where she had been. She testified that they then went to a

restaurant called Jersey Joe’s to eat dinner. She said that the defendant allowed her to

go to the restroom by herself at the restaurant. The victim stated that she heard a

knock and a woman’s voice while she was in the restroom. The victim testified that she

gave the woman her parent’s telephone number and told her to tell them that she had

been kidnaped. She said that shortly afterwards, an officer came into the restaurant

and arrested the defendant.



             The victim testified that in February 1993, approximately one week after

her divorce, she received a letter from the defendant. In the letter, the defendant stated

that he was sorry about what happened with the victim’s divorce and that he did not

mean for it to happen. The defendant also expressed his love for the victim and

explained that he only wanted the victim to be happy and for them to be a family.



             During cross-examination, the victim was questioned about her

relationship with the defendant. She testified that she met the defendant approximately

two years before she became romantically involved with him. She conceded that her

relationship with the defendant developed quickly. She identified several love letters

that she wrote to the defendant. The victim also admitted that she went on trips with

the defendant along with her daughter and the defendant’s son, and she identified

several photographs taken while she was dating the defendant. The victim was also

cross-examined about the number of collect telephone calls she accepted from the

defendant while he was incarcerated in jail. She conceded that she had accepted a

total of one hundred and eight telephone calls, talking to the defendant approximately

fifty-one hours. The victim admitted that she had stated in her affidavit in support of the

stalking warrant obtained on December 10, that she had tried to end the relationship

with the defendant approximately three weeks earlier while the defendant was in jail.



                                            6
However, she conceded that between November 19 and December 6, she accepted

more than fifteen calls from the defendant, with some calls lasting more than one hour.



             The victim also conceded that she gave a false statement in her affidavit

in support of the stalking warrant that in the message left by the defendant on her

answering machine, the defendant stated that he had talked to the victim’s ex-husband

and told him a bunch of lies. She denied telling co-workers that if anything happened to

her, the defendant was the cause. The victim testified that she did not remember

stating at the preliminary hearing that it was not true that she and the defendant were

having an affair for months and stating that she and the defendant had dated for two

months and that was all. The victim admitted that she never saw the defendant with a

gun while she was kidnaped. She also conceded that she had given a statement earlier

that the defendant had inserted his finger in her anus, but she claimed that she could

no longer remember whether it had happened, stating that therapy had helped her

remember some things but not others. The victim admitted that her testimony as to

some of the details of the events that took place at the motel were different than to what

she testified at the preliminary hearing. She stated that she did not ask for help while at

the shops in Pigeon Forge because she was scared. The victim also testified that when

she talked to the woman at Jersey Joe’s restaurant, she neither told her that she had

been raped nor asked her to call the police.



               Other witnesses corroborated details of the victim’s testimony. Tracy

Jones testified that she was eating dinner at Jersey Joe’s restaurant on December 22,

1992. She stated that the victim exited the restroom as she was entering. She said

that the victim whispered to her in a shaky voice to call her parents because she had

been kidnaped by the defendant. She stated that the victim gave her the telephone

number of her parents. Ms. Jones testified that the victim continuously looked around

and downstairs to see if the defendant was coming. She described the victim as being



                                            7
extremely nervous, shaking and about to cry. Ms. Jones testified that the victim told her

several things, some of which she could not remember, but that one thing that stuck in

her mind was that the victim told her that the defendant forced her to have sex with him.

On cross-examination, Ms. Jones conceded that in her statement to police, she did not

state that the victim told her that the defendant had raped her.



                  I. CROSS-EXAMINATION ON DIVORCE DECREE

              First, the defendant asserts that the trial court erroneously prohibited him

from questioning the victim about her divorce proceeding and the judicial determination

that the victim had engaged in an adulterous relationship with the defendant until mid-

December. The defendant argues that the divorce decree was “relevant, material and

admissible.” He contends that the divorce decree was admissible as a certified public

record under Rule 1005, Tenn. R. Evid., and as a judgment dealing with personal or

family history constituting a hearsay exception under Rule 803(23), Tenn. R. Evid. The

defendant argues that pursuant to Rule 616, Tenn. R. Evid., and the Sixth Amendment

to the United States Constitution, he should have been allowed to question the victim

about the divorce proceedings to show that the victim had a motive to lie against the

defendant. In response, the state contends that the trial court properly excluded the

divorce decree and refused to allow the defendant to question the victim about the

divorce proceedings because the findings in the divorce proceedings were irrelevant

and inadmissible hearsay.



              Before trial, the defendant requested that he be allowed to introduce a

divorce decree relating to the victim and her ex-husband, Bryan Ward. The divorce

decree reflects that the victim filed for a divorce on July 30, 1992, and Mr. Ward filed a

counterclaim. Though the victim withdrew her complaint, Mr. Ward proceeded on his

counterclaim, and a divorce was entered on March 9, 1993. The defendant asserted




                                             8
that a portion of the trial court’s findings of fact and conclusions of law contained in the

divorce decree were relevant and pertinent to his case:

                     [Mr. Ward] has shown that [Ms. Ward] over the term of
              the marriage has engaged in an adulterous relationship without
              the knowledge or consent of [Mr. Ward]. The actions of [Ms.
              Ward] have destroyed the marriage. The evidence establishes
              that [Ms. Ward] had the inclination and the opportunity to
              commit adultery and did commit adultery with one Robert
              (Robbie) Frantz, the last occurrence being in mid December
              1992. [Mr. Ward] is entitled to an absolute divorce on grounds
              of adultery.



              The defendant argued that he should be allowed to use the divorce

decree to cross-examine the victim because he expected the victim to testify that her

relationship with the defendant ended when he went to jail on October 24, 1992. The

defendant contended that the divorce decree was essential to his defense theory that

because the defendant was going to testify at the divorce proceedings in favor of Mr.

Ward, the victim voluntarily went to Gatlinburg with the defendant and then filed false

charges against the defendant to prevent the defendant from testifying at the divorce

proceedings on February 9, 1993. The prosecutor disagreed, stating that the divorce

decree was inadmissible in that it was merely a trial court’s finding of fact and not an

admission by the victim. Without stating the grounds for its exclusion, the trial court

ruled that the divorce decree was inadmissible. The trial court stated that although the

divorce decree was not admissible, the defendant would be permitted to cross-examine

the victim about her relationship with the defendant and whether it extended into mid-

December 1992.



              At trial, the defendant cross-examined the victim about her relationship

with the defendant. The victim’s telephone records were introduced during cross-

examination to show that the victim accepted collect telephone calls from the defendant

while he was in jail. The victim was also questioned about photographs taken of her

while dating the victim and about love letters written by her to the defendant.



                                              9
              Pursuant to Rule 616, Tenn. R. Evid., a witness’ bias in favor of or against

a party or another witness may be proven by cross-examination, extrinsic evidence, or

both. As the Advisory Commission Comments to the rule notes, evidence of bias is an

important ground for impeachment. See Creeping Bear v. State, 113 Tenn. 322, 325-

30, 87 S.W. 653, 653-55 (1905). In Creeping Bear, a murder case, the supreme court

held that the defendant was entitled to present witnesses to prove that the state’s main

witness had a strong friendship with the victim and bitter enmity towards the defendant

in order to show that the witness would be predisposed to suppress the victim’s

aggressive acts and misrepresent the defendant’s conduct. The court stated:

              It is always competent to prove the friendliness or
              unfriendliness of a witness, his partiality for one party or
              hostility to the other, in order that the jury may judge of his
              credibility and the trustworthiness of his testimony. It is the
              experience of the trial courts that witnesses are often as much
              influenced in testifying by feelings of friendship or hostility to
              parties to the case as by direct pecuniary interest in the result
              of the trial, and for this reason proof of the relations of the
              witness to the parties may be shown by proving his conduct
              and expressions in relation to them by cross-examination of
              the witness, or independently by witnesses called for that
              purpose.

Id. at 325, 87 S.W. at 653. However, when extrinsic evidence is used to demonstrate

the witness’ bias, the extrinsic evidence must also be admissible under the evidentiary

rules. See State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).



              In the appropriate case, the limitation of the right to cross-examine a

witness may violate the defendant’s constitutional right to confrontation. See State v.

Belser, 945 S.W.2d 776, 783-84 (Tenn. Crim. App. 1996); State v. Reid, 882 S.W.2d

423, 427-29 (Tenn. Crim. App. 1994). The Sixth Amendment provides that the accused

shall have the right “to be confronted with the witnesses against him.” U.S. Const.

amend. VI. The constitutional right of confrontation includes not only the right to

confront the witness at trial but also the “‘opportunity for effective cross-examination.’”

State v. Howell, 868 S.W.2d 238, 252 (Tenn. 1993) (quoting Deleware v. Fensterer,

474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985)).


                                             10
              We believe that the trial court did not err by excluding the divorce decree.

Though statements contained in the divorce decree could have supported the

defendant’s claim that the victim was biased against the defendant and that the victim

had a motive to lie, the divorce decree constitutes inadmissible hearsay.



              Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). Here, the defendant offered the divorce decree to

prove the truth of the matter asserted therein -- that the victim had an affair with the

defendant until mid-December. Therefore, the divorce decree constitutes hearsay

under Rule 801(c), Tenn. R. Evid.



              Hearsay is inadmissible unless provided otherwise by an evidentiary rule

or by law. Tenn. R. Evid. 802. The defendant contends that Rule 803(23), Tenn. R.

Evid., provides an exception to the hearsay rule, allowing the admission of the divorce

decree. We disagree. Pursuant to the rule, judgments as to personal or family history

or boundaries are not excluded by the hearsay rule if the matters were essential to the

judgment. Tenn. R. Evid. 803(23). Judgment as to “personal or family history” relates

to matters such as death, marriage, divorce, birth, adoption, legitimacy, and other

familial relationships. Neil P. Cohen, et al., Tennessee Law of Evidence § 803(23).1, at

584 (3d ed. 1995). Moreover, we do not believe that the length of the victim’s

adulterous relationship with the defendant is essential to the divorce decree.



              The defendant argues that the divorce decree constitutes a public record

admissible under Rule 1005, Tenn. R. Evid. We agree that the divorce decree is a

public record. However, Rule 1005 does not provide an exception to the rule excluding

hearsay. To the contrary, Rule 1005 provides that the contents of an official record, “if

otherwise admissible,” may be proved by a certified copy as provided under Rule



                                             11
902(4), Tenn. R. Evid. (emphasis added). As mentioned, the divorce decree is not

admissible as it constitutes hearsay for which an exception is not provided.



                We also hold that the defendant’s constitutional right to confrontation was

not violated. The trial court’s ruling did not prevent the defendant from questioning the

victim about her relationship with the defendant or presenting evidence of the

adulterous relationship by other means. In fact, defense counsel conceded at the

sentencing hearing that he could have presented the testimony of other witnesses to

establish the relevant facts contained in the divorce decree regarding the length of the

victim’s relationship with the defendant.1 Despite defense counsel’s failure to present

witnesses to show that the adulterous relationship between the victim and the

defendant continued through mid-December, defense counsel otherwise conducted a

vigorous cross-examination of the victim. The defendant was not denied his right to

confront witnesses. Accordingly, we conclude that the trial court properly excluded the

divorce decree as being inadmissible hearsay and that the defendant’s confrontation

rights under the Sixth Amendment to the U.S. Constitution were not violated.



                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

                Next, the defendant contends that he was denied the effective assistance

of counsel because defense counsel could not cross-examine Tracy Jones about her

prior inconsistent statements made to defense counsel without defense counsel

becoming a witness at trial.2 The state asserts that the defendant has waived the issue

by failing to cross-examine Ms. Jones at trial regarding her prior inconsistent statement.




                1
                     The re cord do es not re flect whe ther defe nse co unsel su bpoen aed an y witnesse s.
Defense cou nsel stated at the sentencing hearing that although he aske d Mr. W ard to testify, Mr. Ward
told defense counsel that he did not want to get involved. Defense counsel also said that Mr. Ward was
presen t at trial but was exclude d as a w itness be cause he sat in the courtroo m du ring the trial.
Regardless, the prosecutor stated that Mr. Ward told defense counsel that the dates in the divorce decree
were w rong an d that the a dulterous relationsh ip took pla ce befo re the de fendan t was inca rcerated .

                2
                    We note that the defendant’s counsel is contending that he, himself, rendered the
ineffective assistan ce of co unsel.

                                                    12
See T.R.A.P. 36(a). In the alternative, the state argues that the evidence would not

have produced a more favorable result for the defendant.



              The victim testified that when she saw Tracy Jones at the restroom at

Jersey Joe’s restaurant, she gave Ms. Jones her parents’ telephone number and asked

her to call and tell them that she had been kidnaped by the defendant. She said that

she did not tell Ms. Jones that she had been raped. When questioned about the

victim’s statements made to her, Ms. Jones testified that the victim not only told her that

she had been kidnaped but also stated that the defendant had raped her. Ms. Jones

said that the one thing that stuck in her mind was that the victim told her that the

defendant forced her to have sex with him. On cross-examination, Ms. Jones admitted

that she did not tell the police that the victim had told her that the defendant had raped

her.



              In his motion for new trial, the defendant raised as a ground for relief:

                     Tracy Jones, a witness for the State materially changed
              her testimony from statements previously given to . . . counsel
              during pre-trial preparations and investigation . . . in that she
              had previously stated that the . . . victim . . . had never even
              mentioned being raped or sexually assaulted by the defendant
              but completely changed her testimony at trial to state that what
              she remembered the most was [the victim’s] statement that
              she had been raped.

The defendant attached to his motion for new trial an affidavit by defense counsel

concerning the pretrial discussions defense counsel had with Ms. Jones.



              The affidavit states that defense counsel spoke to Ms. Jones on the

telephone on January 20, 1994, as part of his investigation and preparation for trial.

Defense counsel’s affidavit reflects that Ms. Jones told defense counsel that the victim

told her that she had been kidnaped and the victim asked her to call her parents. It

shows that defense counsel questioned Ms. Jones about her statement to the police,

noting that she had not mentioned that the victim had told her that the defendant


                                             13
sexually assaulted or raped the victim. The affidavit states that Ms. Jones told counsel

that the victim never stated that she had been sexually assaulted or raped and that the

victim only mentioned that she had been kidnaped from South Carolina. The affidavit

also reflects that counsel spoke to Ms. Jones in person at the Sevier County

Courthouse on February 23, 1995, the day of trial. It states that counsel asked Ms.

Jones a second time about her statement to the police, and Ms. Jones again stated that

the victim had not told her that she had been raped. Counsel asserted in his affidavit

that Ms. Jones’ change in testimony from her prior statements was extremely prejudicial

to the defendant in that there were no independent witnesses to the conversations

between counsel and Ms. Jones, and therefore, counsel was unable to cross-examine

Ms. Jones effectively about her prior inconsistent statements without placing counsel in

the position of becoming a witness as well as being an advocate.



                At the hearing on the motion for new trial, the defendant called Ms. Jones

as a witness, but upon objection by the state, the trial court refused to allow Ms. Jones

to testify because the accuracy of counsel’s affidavit was not being questioned.3

Defense counsel argued that because he was the only person who interviewed Ms.

Jones, he was placed in a situation where he could neither call himself to the stand nor

ask Ms. Jones whether she had made a prior inconsistent statement to him. He

asserted that he could not be a witness and an advocate for the defendant at the same

time. Counsel also stated that he believed that he could only ask Ms. Jones whether it

was true that other than her testimony at trial, Ms. Jones had never made the statement

that the victim told her that the defendant raped her.



                In response, the prosecutor argued that assuming that defense counsel’s

affidavit was true, it did not provide grounds for relief warranting a new trial. The



                 3
                   The record reflects that defense counsel informed the court that Ms. Jones’s testimony
would be that she remembered the victim’s statements regarding the rape after speaking to defense
couns el but befo re testifying at trial.

                                                   14
prosecutor asserted that any prior inconsistent statement by Ms. Jones merely provided

a basis for impeaching her trial testimony, noting that there was no claim of newly

discovered evidence. Defense counsel asserted that a new trial was warranted

because he was precluded from further impeaching Ms. Jones with her prior

inconsistent statements. The trial court denied the motion for new trial.



              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, 113 S. Ct. 838, 842-44

(1993). The Strickland standard has been applied, as well, to the right to counsel under

Article I, Section 9 of the Tennessee Constitution.

State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1982).



              We question whether the ineffective assistance of counsel issue is

properly before us. It is not in the motion for new trial, although the motion does include

a complaint about inability to cross-examine Ms. Jones. However, the parties did not

direct their attention in the trial court to the issue of the ineffective assistance of

counsel. Pursuant to Rule 3(e), T.R.A.P., the failure to state in the motion for new trial

the ground upon which a new trial is sought constitutes waiver of the issue on appeal.



              Likewise, we note that in State v. Jimmy L. Sluder, No. 1236, Knox

County, slip op. at 7 (Tenn. Crim. App. Mar. 1990), app. denied (Tenn. July 16, 1990),

this court recognized that when appellate counsel raises on direct appeal the ineffective

assistance of counsel issue for the first time, such practice is “fraught with peril.” See

also State v. Anderson, 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992). The peril is



                                              15
twofold. First, pursuant to T.R.A.P. 3(e), any issue presented for review which seeks a

new trial, such as, ineffective assistance of counsel, must be specifically stated in the

motion for new trial or it will be deemed waived. Thus, absent plain error on the record,

see, e.g., State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984), such a path by counsel is

doomed to procedural failure. Second, if the appellate court chooses to decide the

issue based upon the record before it, appellate counsel has elected to proceed without

an evidentiary hearing which, if held, might be the only way that harm could be shown --

a prerequisite for relief in ineffective assistance of defense counsel claims. Strickland,

466 U.S. at 687, 104 S. Ct. at 2064. “The better practice is to not raise the issue on

direct appeal . . . . The issue can be subsequently raised in a post-conviction

proceeding” if the defendant is not successful on direct appeal. Jimmy L. Sluder, slip

op. at 7.



              Thus, we do not believe that the issue of the effective assistance of

counsel at trial is properly before us. In any event, we see nothing worthy of reversal

relative to the defendant’s underlying complaint relative to Ms. Jones. The

impeachment of her testimony with her prior inconsistent statement would not have

affected the outcome of the trial. At trial, the victim did not testify that she told Ms.

Jones at the restroom that the defendant had raped her. Had the victim testified in this

way, Ms. Jones’ testimony would only have been considered corroborative of the

victim’s testimony. Rather, the victim testified that she did not tell Ms. Jones that she

had been raped. Thus, the only effect impeachment of Ms. Jones’ testimony would

have been to discredit Ms. Jones’ testimony in a way not related to the victim’s

testimony. We do not believe that Ms. Jones’ testimony on this point was material to

the defendant being convicted in this case. Under these circumstances, we conclude

that the failure to impeach her with her prior inconsistent statement did not affect the

jury verdict to the defendant’s detriment.




                                              16
               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                         Joseph M. Tipton, Judge



CONCUR:




Paul G. Summers, Judge




Charles Lee, Special Judge




                                           17
