             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                           MARCH 1999 SESSION
                                                         FILED
                                                          June 30, 1999

                                                      Cecil Crowson, Jr.
ROY L. SHERROD,                  )
                                                     Appellate Court Clerk
                                 )
             Appellant,          )   No. 02C01-9806-CR-00164
                                 )
                                 )   Shelby County
v.                               )
                                 )   Honorable James C. Beasley, Jr., Judge
                                 )
STATE OF TENNESSEE,              )   (Post-Conviction)
                                 )
             Appellee.           )


For the Appellant:                   For the Appellee:

Jeffery Gladstein                    John Knox Walkup
200 Jefferson Ave., Suite 1313       Attorney General of Tennessee
Memphis, TN 38103                           and
                                     Patricia C. Kussmann
                                     Assistant Attorney General of Tennessee
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     William L. Gibbons
                                     District Attorney General
                                             and
                                     Paula Wulff
                                     Assistant District Attorney General
                                     201 Poplar Avenue, 3rd Floor
                                     Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, Roy L. Sherrod, appeals as of right from the Shelby County

Criminal Court’s denial of his petition for post-conviction relief. He seeks relief from his

jury convictions for aggravated rape and robbery. This court affirmed these convictions

and his forty-year sentence in the Department of Correction as a Range III, persistent

offender, for aggravated rape but modified the consecutive robbery sentence to

fourteen years as a Range III offender. State v. Roy L. Sherrod, No. 02C01-9510-CR-

00331, Shelby County (Tenn. Crim. App. July 26, 1996). The petitioner contends that

he received the ineffective assistance of counsel at trial and on direct appeal because

counsel:

              (1) failed to object to the expert testimony of a witness for the
              state;

              (2) failed to object to improper remarks made by the state
              during closing argument;

              (3) failed to object to a jury instruction on reasonable doubt
              which included the phrase “to a moral certainty;” and

              (4) failed to interview a potential witness.

We affirm the trial court’s denial of post-conviction relief.



              At the evidentiary hearing, the petitioner testified that his trial attorneys

were ineffective for failing to object when the trial court instructed the jury that a nurse

called by the state was an expert witness. He said that during her testimony, the nurse

admitted that she was not an expert when she said that she was working on her sexual

assault nurse evaluation certification. Reading from his petition, the petitioner said that

the nurse testified that she was not qualified to say or could not say whether the injuries

suffered by the victim could be consistent with anal penetration occurring quickly and

without lubrication. He said that he thought that this statement meant that she was not

qualified to testify about sexual assault. The petitioner stated that trial counsel were




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ineffective for not objecting to the nurse’s qualification as an expert and for not

preserving and raising this issue on direct appeal.



              The petitioner testified that his attorneys were ineffective for not objecting

to improper statements in the state’s closing argument. He said that the prosecutor

argued that the petitioner raped the victim and that the petitioner’s claim that the victim

was a prostitute was not true. The petitioner stated that the prosecutor also improperly

commented upon his silence at the time of his arrest. He said that the prosecutor

argued that the petitioner did not tell the police that he had consensual sex with the

victim when they first confronted him, that this was inconsistent, and that this showed

that he was lying to the jury. The petitioner said that these statements affected the

jury’s deliberations regarding his defense of consent.



              The petitioner testified that his attorneys were ineffective for not objecting

to the trial court instructing the jury that reasonable doubt requires a moral certainty of

guilt. He admitted that the Tennessee Supreme Court had upheld this instruction, but

he said that federal courts have held it to be unconstitutional.



              The petitioner testified that he was not satisfied with his attorneys’

investigation of his case. He said that they did not properly investigate because they

did not interview his brother. He said that he was coming from his brother’s house

when the victim approached him. He stated that he gave one of his attorneys his

brother’s name, address and telephone number, but she was not able to reach his

brother by telephone, and she never went to his brother’s house. He stated that his

brother would have testified that on the night of the offense, the petitioner was at his

house and left to go to their mother’s house. On cross-examination, the petitioner

admitted that having his brother testify that the petitioner was at his house before the




                                             3
incident would not have changed his theory of defense that he and the victim had

consensual sex.



              The petitioner’s lead attorney testified that she had been employed by the

Shelby County Public Defender’s Office for seven years. She said that she had been

with the Public Defender’s Office for nine months to one year at the time she

represented the petitioner. She said that although she had worked on a few rape cases

before she represented the petitioner, his case was her first trial. She said that another

public defender assisted her with the petitioner’s case.



              The lead attorney testified that the nurse, who testified for the state, had

said that she had performed thousands of rape crisis examinations. She said that she

thought that the nurse was qualified and that the trial court had already limited the

nurse’s testimony to only what she had seen or done. She said that she saw no basis

for objecting to the nurse’s testimony. She said that she could not remember the state

asking the trial court to declare the nurse an expert, but she did not recall this being an

issue. She said she thought that the trial court would have deemed the nurse to be an

expert.



              The attorney testified that she also had no basis for objecting during the

state’s closing argument because the prosecutor was arguing, not testifying. She

agreed that during the trial, police officers had recounted that when they first

questioned the petitioner, he said that he was walking home from work but after they

arrested him, he told them that the victim engaged in consensual sex with him for

money. She said that she had objected to these statements as inadmissible hearsay,

but the trial court allowed the statements into evidence. She stated that she saw no

basis for objecting to the prosecutor’s argument about the petitioner’s initial statement.




                                             4
She said that the trial court gave the standard instruction on reasonable doubt and that

she did not think that this instruction was unconstitutional.



              The attorney testified that the petitioner gave her the names of several

witnesses to interview, including his brother. She said that her investigator tried to

contact the petitioner’s brother but was not able to locate him. She said that nothing

the petitioner told her led her to believe that his brother could have provided an alibi

and that their theory of defense was that the petitioner and the victim had consensual

sex. She said that the brother’s testimony that the petitioner had left the brother’s

house would have had no bearing on the theory of defense.



              The attorney testified that she encouraged the petitioner to accept the

state’s offer of a nine-year sentence, especially in light of the petitioner’s two prior rape

convictions, but the petitioner wanted to go to trial. She said that she checked the

victim’s records and found no arrests or convictions for prostitution. She stated that

they interviewed the victim, the victim’s boyfriend, and the victim’s mother, but they

found no evidence or witnesses to show that the victim was a prostitute or a drug

addict. She said that although she was not able to verify that the victim was a

prostitute, she questioned the victim at trial about accepting money for sex. She said

that she tried to persuade the petitioner to testify at trial because they had no other

evidence that the victim was a prostitute. She said that the few prior convictions that

the state could have used to impeach the petitioner would have had little impact but that

he refused to testify.



              On cross-examination, she testified that she did not recall whether she

had reminded the jury that the closing arguments were not proof. She said that she did

not believe that she could have done anything that would have changed the outcome of

the trial.



                                              5
              Co-counsel testified that he formerly worked for the Shelby County Public

Defender’s Office for almost nine years. He said that he assisted with the petitioner’s

case but that he was not involved with the pretrial investigation. He said that at trial, the

state’s nurse testified that she had examined hundreds, if not thousands, of rape

victims and that she only testified to what she observed and the procedures that she

followed. He said that she did not testify about what caused the injury to the victim’s

rectum. He said that she testified within the limits set by the trial court and that he

believed her to be an expert on the evidence she gave. He said that he saw no basis

for objecting to her testimony.



              Co-counsel testified that he saw no basis for objecting to the state’s

closing argument. He said that he believed the prosecutor was stating the evidence

given by the witnesses at trial. He said that the trial court gave the standard instruction

on reasonable doubt and that the Tennessee Supreme Court had approved the

constitutionality of this instruction. He said that he did not think that the petitioner’s

brother could have aided their theory of consent. He said that they investigated

whether the victim was a prostitute. He said he felt that lead counsel’s work on the

petitioner’s case was excellent.



              Karen Cook testified that she worked for the District Attorney General’s

Office and that she represented the state pretrial in the petitioner’s case. She said that

the defense team had open-file discovery in this case and that lead counsel responded

to her Motion for Notice of Alibi that the petitioner had none. She said that she had

investigated the possibility that the victim was a prostitute while preparing for

negotiations in the case but that she had found nothing to substantiate this claim.



              The trial court denied the petition for post-conviction relief and made the

following detailed factual findings:



                                               6
              The Transcript of the trial shows that the [nurse] was properly
              qualified as an expert and allowed to testify as same. . . . .
              This Court finds that the witness was “in fact” an expert and
              that the complaint is without merit, therefore the fact that his
              [attorneys] did not object to her expertise does not render them
              ineffective.

                     . . . . [The portion of the state’s closing] argument in
              question dealt with the fact that the petitioner’s defense was
              that he had consensual sex with the victim for money, and yet
              at the time of his arrest instead of telling the police that[,] he
              said he had just got off from work and had been to his
              brother’s house drinking. . . . . [U]nder the circumstances of
              the proof in this case . . . the argument made by the state was
              proper and that there was no basis for an objection by
              petitioner’s attorneys. . . . .

                     . . . . Our Supreme Court has upheld the [reasonable
              doubt] jury instruction given and therefore this issue has no
              merit.

                      Finally, the petitioner claims his attorneys were
              ineffective because they failed to properly investigate his case.
              . . . . The only witness not interviewed was the petitioner’s
              brother who could not be located and whose testimony would
              not have affected the outcome of the trial.



                     I. INEFFECTIVE ASSISTANCE OF COUNSEL

              The petitioner contends that he received the ineffective assistance of

counsel. 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, 368-72, 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.), cert. denied, 493 U.S. 874 (1989).



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

stated that attorneys should be held to the general standard of whether the services


                                              7
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 v. Washington, 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 about

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



                                  A. EXPERT WITNESS

                The petitioner contends that his attorneys’ performance was deficient

because they failed to object to the expert testimony of the nurse, who was never

declared to be an expert witness by the trial court before the jury. The petitioner argues

that the failure to object resulted in the witness presenting prejudicial evidence to the

jury. The state contends that the petitioner was not prejudiced because the trial court

found the witness to be qualified to present her expert testimony and that if the




                                              8
petitioner’s attorney had objected, the trial court would have immediately declared her

an expert and corrected this “oversight.” We agree.



              Rule 702, Tenn. R. Evid., states:

              If scientific, technical, or other specialized knowledge will
              substantially assist the trier of fact to understand the evidence
              or to determine a fact in issue, a witness qualified as an expert
              by knowledge, skill, experience, training, or education may
              testify in the form of an opinion or otherwise.

The petitioner concedes that the nurse had the qualifications to testify as an expert.

He has presented no evidence that, had his attorneys objected to the state’s failure to

have the trial court declare the nurse an expert, the result would have been anything

other than such a declaration. Because the nurse would have been permitted to testify

as an expert even if the petitioner’s attorneys had made the objection, the petitioner has

suffered no prejudice by their failure to object.



                         B. IMPROPER CLOSING ARGUMENT

              The petitioner contends that he received the ineffective assistance of

counsel because his attorneys failed to object to improper remarks made by the

prosecutor during the state’s closing argument. The state argues that the petitioner’s

attorneys properly made no objection to the prosecutor’s remarks because the

prosecutor merely pointed out the inconsistencies in the petitioner’s statements to the

police and did not misstate the facts. We agree.



              Initially, we note that the record does not include a transcript of the state’s

closing argument. Portions of the petition for post-conviction relief were read into

evidence at the evidentiary hearing, including a quotation of the allegedly improper

remarks:

              [Prosecutor]: Ladies and gentlemen, the defendant raped the
              victim, . . . . He not only did it once, he did it twice. He did it
              anally and vaginally. Now, the defendant would have you all
              believe that she was a prostitute and that’s why she was


                                              9
              walking down the street. Ladies and gentlemen, that is not
              true. . . . .

                    And did he tell the police that the first time he was
              confronted? No. Think about that. That’s inconsistent. That
              [shows] the lie that he is trying to perpetrate on you right now.

                     Why [did he not] say that the first time? Why didn’t he
              say that very evening, Officer, I’m astounded that [you’re
              arresting] me for this.

The trial court found that the prosecutor was referring to the petitioner first telling the

police that he had just left work and had been at his brother’s house drinking rather

than telling them that he had consensual sex with the victim for money.



              A prosecutor may properly base his or her argument upon inferences

supported by evidence in the record, including argument pertaining to the veracity of a

witness’s testimony. See State v. Brown, 836 S.W.2d 530, 552 (Tenn. 1992); State v.

Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). A prosecutor may even comment upon

the defendant’s veracity when the comment is supported by evidence in the record.

State v. West, 767 S.W.2d 387, 394 (Tenn. 1989); see also Beasley, 536 S.W.2d at

330. Although a prosecutor is prohibited from expressing a personal opinion on a

witness’s credibility, he or she may argue based upon an analysis of the evidence and

the conclusion supported by the evidence. Id. In this case, the prosecutor was merely

commenting upon evidence in the record. The petitioner’s lead attorney testified at the

evidentiary hearing that the defense team was not able to present any evidence that the

victim was a prostitute. She testified, and the trial court’s own analysis of the transcript

confirmed, that the petitioner’s statements to the police were inconsistent.



               The petitioner characterizes the prosecutor’s remarks as a comment

upon his silence to the police. When a defendant does not testify at trial, a prosecutor

may not comment upon a defendant’s failure to make a statement to the police

because this would punish the defendant for exercising his or her constitutional right to

remain silent. Braden v. State, 534 S.W.2d 657, 659-60 (Tenn. 1976) (noting further


                                              10
that a defendant’s pretrial silence may be admitted with caution when inconsistent with

a defendant’s testimony). Here, the prosecutor did not comment upon the defendant’s

failure to make a statement to the police. Instead, the prosecutor commented upon the

inaccuracy of the statement that the petitioner made to the police.



              Because the prosecutor’s remarks were proper, the petitioner’s attorneys

were not ineffective for not objecting to them. The petitioner argues that his attorneys

should have objected even if they had no legal basis in order to remind the jury that the

prosecutor’s remarks were argument, not evidence. The attorneys’ choice not to make

the baseless objection suggested by the petitioner was a tactical decision which this

court will not second guess. See Hellard, 629 S.W.2d at 9.



                                 C. JURY INSTRUCTION

              The petitioner summarily argues that counsel were ineffective for failing to

object to the trial court’s reasonable doubt jury instruction which contained the phrase

“to a moral certainty.” The petitioner concedes in the petition that the Tennessee

Supreme Court has upheld an identical instruction. See State v. Nichols, 877 S.W.2d

722, 734 (Tenn. 1994). His attorneys’ decision not to object was within the range of

competence required of attorneys in criminal cases.



                           D. INADEQUATE INVESTIGATION

              The petitioner contends that his attorneys were ineffective in their

investigation of his case because they did not interview his brother. The petitioner’s

brother did not testify at the evidentiary hearing. In order for a petitioner to establish

prejudice from his attorney’s failure to locate a witness, the petitioner must have this

witness testify at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757-58

(Tenn. Crim. App. 1990). “It is elementary that neither a trial judge nor an appellate

court can speculate or guess on the question of whether further investigation would



                                             11
have revealed a witness or what that witness’ testimony might have been if introduced

by defense counsel.” Id. at 757. The petitioner has failed to prove how he was

prejudiced by his attorneys’ inability to locate this witness.



              In consideration of the foregoing and the record as a whole, we hold that

the petitioner received the effective assistance of counsel and we affirm the denial of

post-conviction relief.


                                                          __________________________
                                                          Joseph M. Tipton, Judge




CONCUR:


Gary R. Wade, Presiding Judge



Thomas T. W oodall, Judge




                                             12
