         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                Assigned on Briefs May 8, 2002

            FREDERICK BEAUREGARD v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                          No. 5990    Jon Kerry Blackwood, Judge



                      No. W2001-02546-CCA-R3-PC - Filed June 5, 2002


The Appellant, Frederick Beauregard, appeals from the Hardeman County Circuit Court’s denial of
his petition for post-conviction relief. In May of 1997, Beauregard was convicted of the rape and
incest of his thirteen-year-old daughter. He received an effective sentence of nine years for the
convictions. Beauregard’s convictions and sentences were later affirmed on direct appeal. See State
v. Beauregard, 32 S.W.3d 681 (Tenn. 2000). On February 13, 2001, Beauregard timely filed his pro
se petition for post-conviction relief which was amended following appointment of counsel.
Following a hearing on the merits, the trial court denied Beauregard’s petition.

From this denial, Beauregard now appeals asserting that he received ineffective assistance of trial
counsel in the following respects: (1) trial counsel was inadequately prepared for trial; (2) trial
counsel failed to properly investigate, interview or call material witnesses at trial; (3) trial counsel
failed to discuss trial strategy or the theory of the case with Beauregard; (4) trial counsel failed to
review the jury list with Beauregard; (5) trial counsel failed to develop testimony with regard to the
chain of custody of the rape kit and its reliability; and (6) trial counsel failed to provide expert proof
to rebut the State’s DNA expert. After review, we find no error and affirm the judgment of the post-
conviction court.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN, JJ., joined.

Harriet S. Thompson, Bolivar, Tennessee, for the Appellant, Frederick Beauregard.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James Walter
Freeland, Assistant District Attorney General, for the Appellee, State of Tennessee.
                                              OPINION

                                        Factual Background

      The underlying facts relative to this post-conviction petition were summarized by the
supreme court on direct appeal as follows:

       [The Appellant] was charged in a two-count indictment with rape and incest of his
       thirteen-year-old daughter, S.J. On the day in question, S.J. was visiting her
       grandmother’s home, where her father, [the Appellant], resided. S.J. was lying down
       in a bedroom when [the Appellant] entered the room and sat down on the bed next
       to her.

       [The Appellant] asked S.J. if she knew how to “nut” and whether S.J. had ever had
       sex. When [the Appellant] then began feeling her breasts, S.J. unsuccessfully tried
       to push [the Appellant] away. [The Appellant] pulled S.J.’s jeans and panties down
       to her knees and “stuck his penis” in her genital area. [The Appellant] stopped when
       the telephone in the living room rang and he went to answer it. When [the Appellant]
       left the room, S.J. put her clothes back on and used the bedroom telephone to call a
       friend of her mother’s and ask the friend to pick her up. S.J. then locked herself in
       the bathroom and remained there until she heard a car pull up to the house and the
       horn blow.

       S.J. was later examined at a hospital [where doctors] found seminal fluid at the
       entrance to S.J.’s vagina and completed a sexual assault kit. Sherri Harrell, a forensic
       serologist, tested the items from S.J.’s assault kit and found semen and spermatozoa
       on the slides. Joe Minor, a forensic scientist, conducted further tests and testified that
       [the Appellant] could not be excluded as the source of the semen. Minor opined that
       the semen was from [the Appellant] or a close relative.

State v. Beauregard, 32 S.W.3d at 682.

                                             ANALYSIS

                              Ineffective Assistance of Trial Counsel

        The Appellant bears the burden of establishing his allegations contained in the petition by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). Findings of fact and conclusions
of law made by a post-conviction court are given the weight of a jury verdict. Davis v. State, 912
S.W.2d 689, 697 (Tenn. 1995). Unless evidence contained in the record preponderates against the
judgment, this court is bound by those findings on appeal. Id. This court may not reweigh or
reevaluate the evidence or substitute its inferences for those drawn by the trial court. Black v. State,
794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The issues of deficient performance by counsel and


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possible prejudice to the defense are mixed questions of law and fact; thus, our review of this case
is de novo. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Furthermore, to succeed in a challenge
for ineffective assistance of counsel, the Appellant must demonstrate that counsel’s representation
fell below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 2064 (1984), the Appellant must establish: (1) deficient representation; and (2) prejudice
resulting from the deficiency.

                                      A. Pre-Trial Preparation

        First, the Appellant argues that trial counsel’s “few visits” with the Appellant prior to trial
resulted in inadequate representation. The Appellant was released on bond several months prior to
the trial. Although trial counsel testified at the post-conviction hearing that he felt adequately
prepared for trial, nonetheless, he discussed his frustrations in maintaining contact with the Appellant
prior to trial:

        One of the problems I had with [the Appellant] is, he didn’t make an effort to stay in
        touch with me. I think we made several telephone calls trying to get [the Appellant]
        to come to the office, and I ended up having to go to his house. And whatever
        interviews we did were at his house. I don’t recall him coming to my office any . .
        . I went to . . . his house three, four, maybe five occasions.

Trial counsel further testified that the Appellant would not answer his phone and that he had visited
the Appellant’s home on other occasions to prepare for trial, only to find that the Appellant was
away. As explained by trial counsel at the post-conviction hearing, “If I hadn’t gone to see him, we
would have shown up in court and not been ready to do anything. So, if I didn’t make house calls,
we wouldn’t have known anything.” The Appellant admits that trial counsel did, in fact, visit him
at his residence once or twice and that he made no effort to contact trial counsel himself prior to trial.

        With respect to this issue, the trial court concluded that trial counsel “met with [the
Appellant] on sufficient occasions to present an adequate defense.” We agree. We find nothing in
the record to support the assertion that trial counsel was inadequately prepared for trial
notwithstanding the Appellant’s lack of cooperation in assisting in his own defense. It cannot be
said that counsel’s performance in this respect was deficient. Because we find no such deficiency,
we need not address the prejudice prong of Strickland.

                                      B. Additional Witnesses

        The Appellant next contends that trial counsel was ineffective for failing to investigate,
interview or call certain witnesses at trial. He asserts that this alleged error was highly prejudicial
and effected the outcome of his trial.




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       First, he argues that trial counsel erred by failing to interview and call witnesses Elton
Morrow and Jerry Jones to testify at trial. The Appellant maintains that his daughter had given both
Morrow and Jones pictures to pass along to the Appellant after the date of the rape. According to
the Appellant, this testimony would have helped the jury realize that his daughter still wanted to have
contact with him. Trial counsel testified that he did interview both Morrow and Jones but
determined that “they didn’t have anything to say that would help [the Appellant].”

        Second, the Appellant asserts that trial counsel was ineffective for failing to call as a witness
the nurse who assisted in examining the victim at the hospital on the night of the rape. The
Appellant explained that he wanted the nurse to testify in the event she could rebut the testimony of
the examining doctor who testified that the victim stated her father raped her. The Appellant admits
that he does not know what the nurse’s testimony would have been but maintains that she should
have been called to testify in the event “the victim made statements exonerating” him at the hospital
that night. The Appellant acknowledged that he never discussed the possibility of the nurse
testifying with trial counsel.

        Third, the Appellant argues that trial counsel was ineffective for failing to call Lisa Nunn,
who is employed with the Department of Children’s Services, to testify on his behalf at trial. Nunn
interviewed the victim after the rape and tape-recorded the conversation. At the post-conviction
hearing, Nunn testified that she no longer had the tape or her case notes and did not recall the
particular facts of the case since it had been some time since the incident occurred. The Appellant
argues that a “lack of investigation” on the part of trial counsel can be inferred from her testimony
since the case file and her notes were not subpoenaed until the post-conviction hearing. Trial
counsel, however, testified that he still possessed a copy of the tape-recorded interview. In the
interview, the victim clearly stated that her father raped her. Trial counsel felt there was no need to
have Nunn testify about the contents of the tape when there were no conflicting statements made by
the victim.

        We note that the Appellant failed to call Jones, Morrow, or the nurse to testify at the post-
conviction hearing. This court refuses to speculate on the question of whether further investigation
of a witness or failure to call a witness would have produced evidence favorable to the Appellant’s
case. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The Appellant has simply
failed to meet his burden of proof with respect to these potential witnesses. With respect to Nunn,
who did testify at the post-conviction hearing, we conclude that her testimony in no way supports
the Appellant’s argument, as she simply testified that she was unable to recall the particular facts of
the case and no longer had access to information about that case. Because the Appellant has failed
to show how the absence of these witnesses was prejudicial, these issues are without merit.

                                          C. Trial Strategy

       The Appellant also argues that trial counsel failed to discuss trial strategy or a theory of the
case with him. He makes no further argument in this regard. Trial counsel testified that he did
discuss the theory of the case with the Appellant. Because the Appellant makes no mention of how


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this alleged failure prejudiced the case, we accredit trial counsel’s testimony and find this issue to
be without merit.
                                            D. Jury List

        The Appellant argues that trial counsel “did not provide a list for the appellant to review for
jury selection.” At the post-conviction hearing, trial counsel testified that he did not recall if they
reviewed the names of prospective jurors prior to trial. Again, because the Appellant has failed to
show how such alleged error affected the outcome of this case, we find no merit in this issue.

                                       E. Chain of Custody

       The Appellant next maintains that trial counsel was ineffective because he “failed to exert
every reasonable effort on behalf of the appellant in the trial on the issue of chain of custody”
regarding evidence which was developed from the rape kit. More specifically, the Appellant
contends that trial counsel “was remiss in not developing and vigorously challenging the chain of
custody issue which would have been highly beneficial to the defense.”

        At the post-conviction hearing, trial counsel testified that he did feel there was a problem
with the chain of custody of various items of evidence introduced from the rape kit and objected to
their admission at trial. After his objection was overruled, he decided not to further pursue the issue
because he felt calling additional witnesses would “firm the chain of custody up.” Trial counsel’s
decision was a tactical one. Assuming adequate investigation, the fact that a strategy or tactic failed
or hurt the defense does not alone support an ineffective assistance of counsel claim. Thompson v.
State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). After reviewing the record, we cannot
conclude that trial counsel’s decision was ineffective. He objected to the chain of custody. Once
overruled, he made a tactical decision to leave the issue alone. This court does not sit to second-
guess strategic and tactical choices made by trial counsel. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). Such performance on the part of trial counsel was not deficient. This issue is also without
merit.

                                       F. Expert DNA Proof

        Lastly, the Appellant contends that trial counsel was ineffective for failing to obtain and
provide expert testimony concerning the similarity of DNA between relatives. Specifically, the
Appellant argues that trial counsel should have defended under the theory that Appellant’s brother
actually committed the rape.

        At trial, Joe Minor, a forensic scientist, testified that he had examined the DNA from semen
taken from the victim’s vagina after the rape. Minor concluded that the Appellant could not be
excluded as being the source of the semen. However, Minor also testified that the semen was either
from the Appellant or a close relative. At the post-conviction hearing, trial counsel testified that
there were no funds available to hire an expert and that the court would not have allocated the money
anyway. Moreover, trial counsel testified that a theory that the Appellant’s brother committed the


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rape was contradictory to the other evidence presented at trial. Trial counsel explained the defense
pursued at trial:

       Basically, the theory would be that [the victim] came out to [the Appellant’s] house,
       visited there, left. She came back, basically called someone and said she was raped
       . . . there was a DNA test taken. Our theory included the fact that the DNA analysis,
       the serial was tampered. It was flawed.

The theory developed at trial did not include the implication of relatives with similar DNA having
sexual contact with the victim at the home. Rather, the theory was that the Appellant’s daughter left
the home, came back, and said she had been raped. We fail to see how trial counsel’s failure to
introduce expert rebuttal testimony concerning the DNA test results was deficient, as such testimony
would have completely contradicted the Appellant’s theory of the case at trial. This issue is without
merit.


                                         CONCLUSION

        After review, we find that the Appellant has failed to meet his burden of proving, through
clear and convincing evidence, that trial counsel’s performance was ineffective. Therefore, we
affirm the Hardeman County Circuit Court’s denial of the Appellant’s petition for post-conviction
relief.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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