             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            FEBRUARY 1998 SESSION
                                                             FILED
                                                              March 13, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
WILLIAM E. BEARD,               )
                                )       No. 02-C-01-9611-CR-00405
            APPELLANT,          )
                                )       Shelby County
v.                              )
                                )       Chris Craft, Judge
STATE OF TENNESSEE,             )
                                )       (Post-Conviction Relief)
            APPELLEE.           )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Mark A. Mesler                          John Knox Walkup
Attorney at Law                         Attorney General & Reporter
200 Jefferson Avenue, Suite 1250        425 Fifth Avenue, North
Memphis, TN 38103                       Nashville, TN 37243-0493

                                         Elizabeth T. Ryan
                                         Assistant Attorney General
                                         425 Fifth Avenue, North
                                         Nashville, TN 37243-0493

                                         William L. Gibbons
                                         District Attorney General
                                         201 Poplar Avenue, Suite 3-01
                                         Memphis, TN 38103

                                         Daniel S. Byer
                                         Assistant District Attorney General
                                         201 Poplar Avenue, Suite 3-01
                                         Memphis, TN 38103




OPINION FILED: ________________________


AFFIRMED


Joe B. Jones, Presiding Judge


                                    OPINION
       The appellant, William E. Beard (petitioner), appeals as of right from a judgment of

the trial court dismissing his post-conviction action following an evidentiary hearing. The

trial court found the petitioner had received the effective assistance of counsel guaranteed

by the United States and Tennessee Constitutions. In this court, the petitioner contends

the evidence contained in the record preponderates against the findings of the trial court

in two particulars: (a) trial counsel “failed to prepare, develop and discuss a trial strategy

with him,” and (b) “trial counsel’s efforts at trial failed to employ any strategy that did exist.”

After a thorough review of the record, the briefs submitted by the parties, and the law

governing the issues presented for review, it is the opinion of this court that the judgment

of the trial court should be affirmed.



                                                I.

                                 PRIOR PROCEEDINGS

       The petitioner was convicted of an attempt to rape a child, a Class B felony. The

trial court imposed a Range I sentence consisting of confinement for twelve (12) years in

the Department of Correction. This court affirmed the petitioner’s conviction and sentence.

State v. William E. Beard, Shelby County No. 02-C-01-9407-CR-00146, 1995 WL 454019

(Tenn. Crim. App., Jackson, August 2, 1995). The supreme court denied the petitioner’s

application for permission to appeal on November 27, 1995, concurring only in the result

reached by this court.

       The petitioner instituted this post-conviction action on April 18, 1996. Counsel was

appointed to represent the petitioner. An amended petition was filed on June 6, 1996. The

trial court conducted an evidentiary hearing on August 8, 1996. The trial court’s findings

of fact and conclusions of law were filed on October 7, 1996. The petitioner subsequently

perfected his appeal to this court.




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                                               II.

                                STANDARD OF REVIEW

       When the trial court has conducted an evidentiary hearing to permit a petitioner to

ventilate the grounds raised in support of an action for post-conviction relief, the trial court’s

findings of fact are afforded the weight of a jury verdict. Dixon v. State, 934 S.W.2d 69,

71-72 (Tenn. Crim. App. 1996); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim.

App. 1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989).

Consequently, this court is bound by the trial court’s findings of fact unless the evidence

adduced at the hearing preponderates against the trial court’s findings. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994), per. app. denied (Tenn. 1995).

       There are several well-established rules which govern appellate review in post-

conviction cases. As this court said in Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990):


               First, this Court cannot reweigh or reevaluate the evidence; nor
               can we substitute our inferences for those drawn by the trial
               judge. Second, 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 resolved by
               the trial judge, not this Court. Third, the appellant has the
               burden in this Court of illustrating why the evidence contained
               in the record preponderates against the judgment entered by
               the trial judge.


       This court will now proceed to consider the merits of the petitioner’s contentions.

In doing so, this court will apply the aforementioned principles governing appellate review

to determine whether the evidence adduced at the hearing preponderates against the trial

court’s findings of fact. See Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978),

cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).




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                                             III.

          STANDARDS TO BE APPLIED IN DETERMINING
      WHETHER COUNSEL RENDERED EFFECTIVE ASSISTANCE

       When the petitioner seeks to vitiate a conviction on the ground the attorney who

represented him denied his constitutional right to the effective assistance of counsel, the

petitioner must establish by clear and convincing evidence (a) the services rendered or

advice given by counsel fell below “the range of competence demanded of attorneys in

criminal cases,” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and (b) the

unprofessional conduct of counsel enured to the prejudice of the petitioner. Williams v.

State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), per. app. denied (Tenn. 1980). The

United States Supreme Court subsequently adopted this two-prong test in Strickland v.

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

decisions following Strickland are legion.

       This court’s review is guided by certain well-established standards. First, the

standard created in Baxter does not require perfect representation. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Second, it is not the function of an appellate court to “second

guess” trial counsel’s tactical and strategic choices pertaining to matters of defense unless

these choices were made without knowledge of the relevant facts or the law applicable to

the issue. Hellard, 629 S.W.2d at 9; McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim.

App.), per. app. denied (Tenn. 1983); see People v. Corona, 80 Cal. App. 3d 684, 145 Cal.

Rptr. 894 (1978). As the supreme court said in Hellard: “[T]he defense attorney’s

representation, when questioned, is not to be measured by ‘20-20 hindsight.’” 629 S.W.2d

at 9. Third, an accused is not deprived of the effective assistance of counsel because a

different procedure or strategy might have produced a different result. Williams, 599

S.W.2d at 279-80; Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied

(Tenn. 1974).




                                              4
                                              IV.

                               GROUNDS FOR RELIEF

        The petitioner contends he was denied his constitutional right to the effective

assistance of counsel. He argues his trial counsel “failed to prepare, develop and discuss

a trial strategy with him,” and counsel “failed to employ any strategy” during the course of

the trial.

        The evidence reflects the petitioner developed a conflict with an assistant public

defender who was representing him. The assistant public defender was permitted to

withdraw as counsel of record. The trial court appointed a private attorney to represent the

petitioner. The assistant public defender provided counsel with a copy of his file. The file

included a copy of the applicable statute, documents filed in the case, interviews with

witnesses, a transcript of the preliminary hearing, and other matters pertaining to the

petitioner’s case. Counsel testified it was a complete file.

        Counsel reviewed the file, visited the situs of the crime, and discussed the facts with

the petitioner. The petitioner had a copy of the statute. According to counsel, the

petitioner was vividly aware of what the state was required to prove before he could be

found guilty of attempting to rape a child. The petitioner advised counsel his conduct did

not rise to the level of an attempt to commit this crime. This formed the nucleus of his

defense.

        The petitioner and counsel discussed a trial strategy. The preliminary hearing

testimony of the youthful victim implied there was no sexual contact between the victim and

the petitioner. Since the victim was the key to the prosecution’s case, they formulated a

strategy to discredit the victim’s testimony. They also discussed whether the petitioner

should testify in support of his defense. The petitioner opted not to testify.

        Counsel filed a bevy of motions, and the petitioner filed pro se motions. These

motions were not heard prior to trial. According to the petitioner, he wanted a pretrial

hearing on a motion for discovery and on a motion to suppress his statement to the police.

        The record reflects discovery had been obtained by the assistant public defender.

In addition, counsel had a copy of the state’s file. Counsel testified he did not believe a

hearing on the discovery motion was required given the circumstances in this case. The


                                               5
only surprise was the testimony of a crime scene officer. A diagram of the crime scene

was introduced through this witness. Defense counsel had visited the situs of the crime,

he was able to inspect the diagram, and he knew the diagram was accurate.

       Counsel did not believe a hearing on the motion to suppress the petitioner’s

statement was required. The petitioner told police that he had hit a dog with his vehicle

and he was looking for it. The child had followed him into the woods. The petitioner

refused to give any further statement to the police unless a lawyer was present. Thus,

counsel was of the opinion there was nothing to suppress. The petitioner failed to

establish a reason why the motion would be granted. The petitioner stated the officer said

he was not questioning the petitioner. The petitioner said a hearing was necessary

because the officer said he was not questioning him, but the petitioner contended the

officer did ask him questions.

       The petitioner complains counsel did not ask enough questions during cross-

examination of the state’s witnesses. He testified his counsel asked a total of sixteen

questions during the entire trial.

       Counsel testified the victim was eleven years of age. Her direct testimony was “a

little fuzzy and a little uncertain,” and she was “very hesitant and very tentative.” In other

words, her testimony was “sketchy.” Counsel concluded the victim was not a “great

witness.”

       There was very little variation between the victim’s testimony during the preliminary

hearing and her trial testimony. Counsel did not feel there was any way to effectively

cross-examine the witness. He discussed this problem with the petitioner. The defendant

agreed counsel should be gentle with the youthful victim, attempt to accent the “soft spots”

in her testimony, and vigorously argue the credibility of the witness during summation.

       Counsel gave the defendant the opportunity to have input in the trial decisions. It

appears counsel conferred with the petitioner regarding additional questions he wanted to

ask each witness, as well as his feelings regarding other decisions which surfaced during

the trial. The petitioner did not disagree with counsel’s tactics during the course of the trial.

       Cross-examination of the state’s witnesses was the only strategy available to trial

counsel.    The petitioner could not produce a witness who could refute the victim’s



                                               6
testimony, and the petitioner opted not to testify. If counsel rigorously cross-examined the

victim, the jurors may have been angered at his tactics. In addition, the victim was not a

“great” witness, and her testimony was “sketchy.” A rigorous cross-examination may have

caused the victim to remember additional facts regarding the crime in question. In

summary, the trial strategy utilized by counsel was entirely reasonable.



                                    CONCLUSION

       In conclusion, the petitioner failed to establish the allegations contained in his

amended petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The

trial court accredited the testimony presented by the State of Tennessee and rejected the

petitioner’s testimony.   Moreover, the evidence contained in the record does not

preponderate against the findings of fact made by the trial court. Clenny, 576 S.W.2d at

14. Thus, the judgment of the trial court should be affirmed.




                                             _____________________________________
                                                 JOE B. JONES, PRESIDING JUDGE


CONCUR:



_____________________________________
       JOHN H. PEAY, JUDGE



_____________________________________
     THOMAS T. WOODALL, JUDGE




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