         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 20, 2001

            GEORGE D. FITZPATRICK v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                        No. 96-C-1593    Cheryl Blackburn, Judge



                    No. M2000-02566-CCA-R3-PC - Filed August 31, 2001



The Davidson County Grand Jury indicted the Petitioner for one count of rape and one count of
assault. The Petitioner’s first trial ended with a hung jury. Following a second trial, the Petitioner
was convicted of rape and assault, and sentenced to an effective thirty years of incarceration. His
convictions and sentences were upheld on direct appeal. See State v. George D. Fitzpatrick, No.
01C01-9709-CR-00398, 1998 WL 775665 at *1, Davidson County (Tenn. Crim. App., Nashville,
Nov. 4, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, the Petitioner filed a timely
petition for post-conviction relief alleging ineffective assistance of counsel at his trial. After a
hearing the court below dismissed the petition, from which ruling the Petitioner now appeals. Upon
our review of the record, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which DAVID G. HAYES, J., and
TERRY LAFFERTY, Sp.J., joined.

R. Kirkland Moser, Nashville, Tennessee, for the appellant, George D. Fitzpatrick.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        On June 3, 1999, Petitioner filed a pro se petition for post-conviction relief. The post-
conviction court appointed counsel to assist the Petitioner. Appointed counsel filed an amended
petition for relief on September 20, 1999. Following a hearing, the post-conviction court denied the
petition, entering its written findings of fact and conclusions of law on September 18, 2000.
Subsequently, on October 10, 2000, Petitioner filed a timely notice of appeal to this Court.
                                 POST-CONVICTION HEARING

        At the post-conviction hearing, the trial court heard testimony from the Petitioner and his trial
counsel, Carlton Lewis. The Petitioner testified that his trial counsel had failed to fully discuss his
case with him, prior to both his first and second trial. He also stated that his trial counsel had failed
to discuss any possible plea offers made by the State. The Petitioner claimed that his counsel did
not thoroughly investigate the case and question the State’s witnesses. The Petitioner told the post-
conviction court that his counsel had failed to properly cross-examine State witnesses and failed to
request that any semen test used to convict him be performed again. He further testified that his
counsel had failed to raise any defenses and failed to investigate potential witnesses to testify on his
behalf.

        Petitioner’s trial counsel testified that he talked with the Petitioner on several occasions about
his case, possible trial strategies and potential plea agreements. Counsel stated that he conveyed any
and all plea offers to the Petitioner. Counsel admitted that he could not recall the exact dates of his
meetings with the Petitioner. He testified that offers from the State ranged from twenty-five years
(offered prior to the first trial) to ten years at thirty-five percent (offered prior to the second trial).

         Counsel also testified that he had investigated the Petitioner’s case, “as best as [he] could,”
with the help of Petitioner’s wife and mother. He told the court that he had trouble locating the
victim prior to the first trial. He photographed the vehicle, in which the victim alleged the rape and
assault had occurred. Counsel also attempted to locate a man named “Wesley,” who the Petitioner
claimed could corroborate his defense of consent. However, counsel was unable to locate Wesley
prior to the first trial, but later learned that Wesley had pled guilty to a charge related to this incident.
At this point, counsel determined that Wesley would not be a good witness at the second trial.
Counsel also issued subpoenas for two other witnesses, but they were unable to be located. He
testified that he did not have the funds to employ an investigator to assist him with the location of
witnesses. Counsel stated that he was able to interview one of the State’s key witnesses prior to trial,
but that he was unable to interview the police officers involved with this case, prior to trial.
Counsel further acknowledged that he may have failed to thoroughly cross-examine Detective Shea,
concerning the photo line-up that Shea had conducted for the victim.

        Petitioner’s counsel also testified that he did not recall stipulating that the semen collected
from the victim was that of the Petitioner’s. Yet, he stated that, if he did make such a stipulation,
then it was because the defense’s strategy was not a denial of any sexual contact, but that any sexual
contact was consensual. Counsel testified that, since there were no issues with the identity of the
Petitioner, he felt it was better to show that the victim consented to sexual acts with the Petitioner.
Counsel further explained that he did not want the Petitioner to testify, because Petitioner had prior
convictions that could be used against him.

       Upon review of Petitioner’s case, the post-conviction court denied the petition for post-
conviction relief. The trial court found that Petitioner’s allegations were without merit, and that



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Petitioner had failed to establish that counsel’s performance was either deficient or caused him to
suffer prejudice.

                                              ANALYSIS

         The 1995 Post Conviction Procedure Act provides that a petitioner seeking post-conviction
relief has the burden of establishing his allegations by clear and convincing evidence. Tenn. Code
Ann. § 40-30-210(f) (1997). The trial court’s findings of fact in a post-conviction hearing are
afforded the weight of a jury verdict, and may not be re-weighed or re-evaluated by this Court. Black
v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus, a trial court’s findings are conclusive
on appeal unless the evidence in the record preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn.1999). The court’s application of the law to the facts, however, is reviewed
de novo, without any presumption of correctness. Id. A claim of ineffective assistance of counsel
raised on direct appeal is a mixed question of law and fact, and is also subject to a de novo review.
Id.; see Jehiel Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)

        In determining whether counsel provided effective assistance, this Court must decide whether
counsel’s performance was within the range of competence demanded of attorneys in criminal cases.
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim that his counsel was
ineffective, a petitioner bears the burden of proving (1) his counsel’s performance was deficient and
(2) he was prejudiced by his counsel’s deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984); Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To prove that his counsel’s
performance was deficient, the petitioner must show that “the advice given or the service rendered
was not within the range of competence demanded of attorneys in criminal cases. . .” Bankston v.
State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). The petitioner must establish that trial
counsel’s “acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Under this
second prong, the petitioner must show that the prejudice was such that there is a reasonable
probability that, but for counsel’s errors, the results of the proceeding would have been different.
Strickland, 466 U.S. at 694; Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).

         When reviewing a defense attorney’s actions, this Court may not use “20-20” hindsight to
second-guess counsel's decisions regarding trial strategy and tactics. Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). Counsel's alleged errors should be judged at the time they were made in light of
all the facts and circumstances. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746.

A. Failure to Confer with Petitioner

        The Petitioner contends that his trial counsel was ineffective because he failed to confer with
Petitioner about his case prior to both his first and second trial.

       The Petitioner testified that he talked with his counsel for only one hour prior to his first trial.
He claims that he did not speak with trial counsel, until the day of his second trial. Petitioner also


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testified that his counsel failed to discuss plea offers made by the State. Trial counsel stated that he
met with Petitioner, prior to the preliminary hearing, for one and one-half hours. Counsel stated that
he met with Petitioner several times before the start of his first trial and discussed offers made by
the State. Petitioner’s counsel further testified that, before the second trial, he met with the
Petitioner three to four times to discuss the trial and negotiated plea offers from the State. In ruling
on this issue, the trial court accredited the testimony of trial counsel and found that Petitioner had
failed to meet his burden of establishing that trial counsel was deficient. We find the evidence in this
record does not preponderate against the trial court’s finding that trial counsel met with Petitioner
several times before the start of both of his trials. Petitioner has failed to establish that trial counsel
was deficient in this regard,and is, thus not entitled to relief on this issue.

B. Failure to Investigate and Prepare for Trial

        The Petitioner next alleges that counsel failed to adequately investigate the case and failed
to properly prepare the case for trial. At the post-conviction hearing, Petitioner testified that he did
not know whether his trial counsel had investigated or prepared for trial. Trial counsel testified that
he worked with Petitioner’s wife and mother to gain access to potential defense witnesses and to
acquire information about State witnesses. Counsel further testified that he attempted to interview
the victim, but was unable to locate her. However, he did not feel this was a disadvantage, since he
had cross-examined the victim at the preliminary hearing. Counsel stated that he did not have
sufficient funds to hire a private investigator to assist with the investigation of the case. The
post-conviction court determined that counsel’s level of pretrial investigation and preparation for
trial was “well within that which is expected of a criminal attorney.” We conclude that the evidence
does not preponderate against the trial court’s findings.

C. Failure to Properly Cross-Examine Witnesses

        The Petitioner further contends that trial counsel was ineffective for failing to properly
cross-examine the victim and Detective Shea. Specifically, he asserts that counsel failed to examine
the credibility and truthfulness of the victim. He also argues that counsel’s cross-examination of
Detective Shea was inadequate because counsel failed to point out the inconsistencies in the
notations Shea made on the photo line-up. We disagree.

       Regarding cross-examination of the victim, counsel testified that the victim was the defense’s
best witness. Counsel testified that he was able to cross-examine the victim at the preliminary
hearing and at both trials. Counsel stated that he made every attempt to discredit the victim’s
testimony and enhance the defense’s theory of consent. After reviewing the record before us, we
conclude that counsel’s performance in this regard was not constitutionally deficient.

        Concerning counsel’s cross-examination of Detective Shea, counsel acknowledged that he
did not question the detective about the inconsistent notations he made on the photo array. Counsel
also testified that the trial court held an extensive hearing on the admissibility and suggestiveness
of the photo line-up. The post-conviction court found that counsel’s performance was not deficient


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and did not prejudice the Defendant. We find the evidence on appeal is insufficient to preponderate
against this finding. Thus, even if we assume, arugendo, that counsel rendered deficient
representation, Petitioner has not established that he was prejudiced as a result of trial counsel’s
failure to conduct a more thorough cross-examination of these witnesses.

D. Failure to Raise Defenses

        In his final allegation, Petitioner claims that his counsel was ineffective for failing to raise
any defenses. The Petitioner argues that counsel failed to request that another sperm count be
performed, which could have exonerated him. Counsel testified that he discussed the theory of
consent with the Petitioner. Counsel believed that this would be Petitioner’s best line of defense.
The post-conviction court found that counsel had investigated the possible defenses available to the
Petitioner and “conferred with the Petitioner several times before the trial of this case as to the theory
that was the most prudent on which to proceed.” We agree with the findings of the post-conviction
court, and also find that the Petitioner has failed to present any evidence that would preponderate
against the findings of the post-conviction court. Moreover, this Court must defer to trial strategy
and tactical choices when they are informed ones based upon adequate preparation. Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). The Petitioner is not entitled to relief on this issue.

                                           CONCLUSION

        For the foregoing reasons, we find that Petitioner’s trial counsel provided him the effective
assistance of counsel, and the judgment of the trial court is AFFIRMED.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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