        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs April 19, 2011

          TIMMIE DARRELL BOSTON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                   No. 2002-D-2391    J. Randall Wyatt, Jr., Judge


               No. M2010-01043-CCA-R3-PC - Filed November 16, 2011


The petitioner, Timmie Darrell Boston, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief. After trial, a jury convicted him of rape of a child,
a Class A felony, and assault by offensive or provocative contact, a Class B misdemeanor.
He was sentenced as a Range I, standard offender and received an effective twenty-year
sentence. In this appeal, the petitioner claims that he received the ineffective assistance of
counsel based on trial counsel’s failure to (1) object to the prosecution’s use of leading
questions when examining the victim, and (2) impeach the testimony of the victim. Upon
review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court in which A LAN E. G LENN, and
R OBERT W. W EDEMEYER, JJ., joined.

J. Chase Gober, Nashville, Tennessee, for the Defendant-Appellant, Timmie Darrell Boston.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Amy Eisenbeck,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

       Background. Boston was indicted for three counts of rape of a child, a Class A
felony, and four counts of aggravated sexual battery, a Class B felony. After trial, a jury
convicted him of one count of rape of a child and one count of assault by offensive or
provocative contact, a lesser included offense of aggravated sexual battery. Boston’s
convictions stemmed from events between October 2000 and February 2002. This Court
summarized the facts relevant to Boston’s convictions in its opinion on direct appeal:
[T]he [seven- year-old] victim lived with her mother, grandmother and several
siblings in a house on Stockell Street. [Boston], who had once worked with
and dated the victim’s mother, was considered a family friend and frequently
visited their home. The victim and her siblings also spent time at [Boston]’s
house, and he occasionally baby sat for the family at both locations. For
several days during the month of February in 2002, [Boston] was ill and had
been invited to stay with the victim’s family at their Stockell Street residence.


       . . . On the evening of February 14, 2002, the victim went to sleep with
her grandmother about 10:30 p.m. Sometime after midnight, [Boston] entered
the bedroom and penetrated the victim’s genitals and anus with his finger. The
victim immediately woke up, screamed, “fell on” her grandmother to wake
her, and stated that [Boston] had “touched” her. The grandmother observed
[Boston] standing in her bedroom and asked him to leave. [Boston] complied,
and the victim and her grandmother went back to sleep.


        Later that morning the victim got up and went to school. [Boston]
remained at the house and assisted the victim’s grandmother with household
chores, all the while muttering audibly that he “messed up.” When the victim
returned home from school, she reported to her grandmother that she had
difficulty urinating and it “burned” when she tried. Members of the victim’s
family accused [Boston] of rape, an altercation broke out, and the police were
called. . . .


       Further investigation revealed prior sexual contact between [Boston]
and the victim . . . .


....


       The victim . . . testified that [Boston] touched her inappropriately on
other occasions prior to the February 15, 2002, incident. . . . The victim . . .
described an[] occasion at [Boston]’s house when he “hunched” her on the
couch in the front room. The victim described “hunching” as when she laid
on the couch, fully clothed, and [Boston], also fully clothed, laid on top of her
in a manner in which their genitals were positioned over one another, and
[Boston] moved backwards and forwards in that position. She further stated



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        that [Boston] had shown her “nasty” movies at his house which depicted naked
        men and women “hunching” . . . .


State v. Timmie Darrell Boston, No. M2003-03069-CCA-R3-CD, 2005 WL 225026, at *1-2
(Tenn. Crim. App., at Nashville, Jan. 28, 2005), perm. to appeal denied (Tenn. May 23,
2005).


       Boston appealed his convictions and sentences, and this Court affirmed the trial
court’s judgments. Id. at *1. Boston filed a post-conviction petition, alleging that his trial
counsel were ineffective based on a number of grounds, including a failure to object to the
prosecution’s leading questions during direct examination of the victim and a failure to
impeach the victim’s testimony.1 The post-conviction court subsequently held an evidentiary
hearing on the matter.


        Co-counsel testified at the hearing that, at the time of Boston’s trial, she worked for
the Public Defender’s Office. She became involved in the case around December of 2002,
shortly before the date on which Boston’s case was initially scheduled for trial. Co-counsel
said that lead counsel, who had been handling Boston’s case previously and was also an
attorney with the Public Defender’s Office, had some personal problems arise soon before
trial. As a result, it was decided that another seasoned attorney should be available to assist
during the trial if necessary. Around the same time that co-counsel first began working on
the case, the State sought and obtained a superseding indictment, and the trial date was
postponed a couple of months. During this delay, co-counsel became more involved in
preparing for the trial. Nevertheless, co-counsel characterized her involvement as secondary
to lead counsel’s.


       Co-counsel testified that lead counsel had already completed most of the pre-trial
investigations and preparations before she became involved in the case. Co-counsel went
with lead counsel and an investigator with the Public Defender’s Office to interview the
victim. Co-counsel described spending time with Boston preparing him to testify at trial.
Leading up to the trial, the two attorneys discussed trial strategy regularly.


       At trial, co-counsel said that she delivered the opening statement and performed the
direct examination of Boston. She testified that lead counsel cross-examined the State’s


        1
         In his brief to this court, Boston limits his appeal to these two grounds of ineffective assistance of
counsel. As a result, all the other claims he raised before the post-conviction court are waived.

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witnesses, including the victim, and delivered the closing argument. Co-counsel could not
remember suggesting particular objections at trial or disagreeing with lead counsel’s
decisions concerning objections. Rather, co-counsel remembered “that [she] thought it was
going pretty well, that [lead counsel] was doing a pretty spectacular job.”


       Lead counsel testified that she worked for the Public Defender’s Office when she was
appointed to represent Boston in February 2002. She listed the numerous dates she met with
Boston in the months before trial and described the topics of discussion for each of those
meetings, including discovery, the applicable law, plea offers, possible witnesses, and
Boston’s testimony. Lead counsel and her office’s investigator interviewed witnesses and
potential witnesses, including the victim, the victim’s grandmother, Boston’s mother, and
Boston’s sister.


        According to lead counsel, co-counsel became involved in the case around the time
of the superseding indictment, “when it was clear that the case was going to be for trial.”
Lead counsel testified that she knew she would soon be leaving the Public Defender’s Office
at that time. She explained that co-counsel was assigned to assist in the trial as a matter of
office policy, “so one [attorney] could be active listening while the other one is engaged in
trial work.” Lead counsel testified that she handled the majority of the trial, including the
opening statement and the cross-examination of “the major witnesses.” She described co-
counsel’s role as “baby-siting”:


       She was the person who sat with Mr. Boston, explained to him what was going
       on so that if he had questions during the trial he could turn to her and she
       would be his primary contact person within the trial so that I could focus on
       my job. . . . [Before trial] [i]f there was a last minute question or something of
       that nature was going on, I would continue my work preparing for the trial and
       she would go to the jail to see him or answer his questions[.]


Lead counsel said that co-counsel also handled Boston’s testimony at trial.


       Lead counsel testified as to why she did not object to the prosecutor’s leading
questions during the direct examination of the victim. She explained that she had met the
victim on prior occasions and had observed her demeanor. She said:


       When [the victim] came to court to testify, though, she was very closed. . . .
       And it became apparent to me that [the prosecutor], who I’m not sure actually

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       met her before the trial, was intimidating to her. And she was not very
       forthcoming with what she was – whatever statements she was going to make.
       And it was – he was actually – it was like pulling teeth for him to get her to
       say anything. And quite frankly it looked like – I’m not saying she was lying,
       but it looked like she was not forthcoming with any information. . . . So I
       listened very carefully, and I had a very good idea of what she was going to
       testify to. And it wasn’t until she actually started to testify about issues that
       were damaging to [Boston’s] case that I got up and objected.


       Regarding Boston’s allegation that counsel failed to impeach the victim, lead counsel
explained her trial decisions:


       I think, looking at my notes from the cross-examination that I had prepared for
       her, several of the areas had just been quite frankly completely X’d out
       because she never talked about them on direct. So certainly I wasn’t going to
       impeach her and give the District Attorney another opportunity to go back and
       try to get her to clarify or explain what she hadn’t talked about on direct. So
       there were several parts of my cross-examination that I X’d out because they
       were not covered on direct. And I believe when the State had to do its
       selection, several counts were taken away from the jury’s consideration
       because the District Attorney’s [O]ffice could – did not elicit any of those
       statements on direct. So as far as the points that were not listed on direct, of
       course, I didn’t do a cross-examination of it because I didn’t want to give the
       State another opportunity to come back and try to get more information out of
       her.


               I did do a soft cross on her – again, she was a young lady – about some
       of the issues you might not say were very germane to the trial. But speaking
       with me, the fact she had met with me twice before, and I also think once she
       had met me with my daughter because I had a young child with me, when she
       was talking to me, she was very animated and open. And maybe we didn’t
       talk about things that were specifically germane to [Boston’s] case, but her
       attitude and demeanor had completely changed. So then when it got to where
       I did need to talk to her about a few issues that were specifically of the case,
       I believe . . . her answers were pretty forthcoming. And . . . that was my
       strategy for her cross-examination.




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       Lead counsel testified that she considered the final result in Boston’s case to be
“certainly” favorable, considering the number of indicted charges and his potential
sentencing exposure.


       Boston testified at the post-conviction hearing, primarily in regard to issues not
currently before this Court. Of relevance to his appeal, he remembered meeting with lead
counsel a few times before trial, but not all of the instances she testified to. He said that the
defense at trial was for him to tell the truth:


       [A]ll I did was take the girl out. I befriended her because I was taking care of
       the other daughter . . . . Either way every time I tried to go to, you know, leave
       or whatnot she wanted to go. If it was my – if the one I was calling my
       daughter at the time was me or not, she just always wanted to be up under me.
       That’s it. I befriended her. And I have been yelled at and cursed out because
       I done spoiled her. All I wanted to get at was the truth. That night I didn’t do
       nothing but go to pick her up, and she jumped up in her sleep and she
       screamed.


Early in the process, he recalled discussing with counsel the likelihood he would need to
testify at trial and beginning to prepare for his testimony.


       Following the evidentiary hearing, the post-conviction court filed a twelve-page
written order denying Boston’s petition. Boston now appeals the court’s denial of post-
conviction relief.


                                         ANALYSIS


       Standard of Review. Post-conviction relief is only warranted when a petitioner
establishes that his or her conviction is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103 (2006). The Tennessee Supreme Court has held:


       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
       questions involving the credibility of witnesses or the weight of their testimony
       are matters for the trial court to resolve. The appellate court’s review of a

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       legal issue, or of a mixed question of law or fact such as a claim of ineffective
       assistance of counsel, is de novo with no presumption of correctness.


Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).


       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:


              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.


Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).


       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069).


      A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.

                                              -7-
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 370.
“‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).


        We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2065). A court will defer
to counsel’s tactical or strategic choices as long as they are informed by adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, “[n]o particular set
of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065.

       Failure to Object. Boston argues that trial counsel were ineffective for failing to
object to the prosecutor’s leading questions during the direct examination of the victim. He
asserts that trial counsel allowed “the prosecutor to continually lead the witness regarding
specific events and only objected after [the victim] had almost completed her testimony.”
The State responds that Boston has failed to produce clear and convincing evidence of his
counsel’s ineffective assistance. We agree with the State.


        At the evidentiary hearing, lead counsel testified that she decided not to object to the
prosecution’s leading questions based on her assessment of the impression the questions gave
the jury. She testified that the victim appeared to be intimidated by, and reserved toward, the
prosecutor. Additionally, lead counsel suggested that it appeared as though the victim might
be lying, or at least was not forthcoming with information. Lead counsel testified that as
soon as the leading questions concerned information damaging to Boston’s case, she
objected.


       Upon our review of the record, we find that Boston has not produced clear and
convincing evidence that trial counsel were ineffective based on a failure to object. Rather,
the evidence shows trial counsel’s decision to be a strategic one informed by adequate
preparation, and we decline to second-guess it. Furthermore, Boston has not produced
evidence of any likelihood that the outcome of trial would have been different had counsel
objected. Nor has he produced evidence that the decision not to object was deficient
performance. Consequently, Boston is not entitled to relief on this issue.


                                              -8-
        Failure to Impeach Victim. Boston asserts that the post-conviction court erred in
denying his claim for relief based on trial counsel’s failure to impeach the victim. He argues
that this “adversely affected Petitioner’s defense and was not a trial strategy or tactic based
on adequate preparation.” The State again contends that Boston failed to produce sufficient
evidence of his counsel’s ineffective assistance in this regard. We agree with the State.


       Lead counsel testified that she specifically avoided any of the possible grounds for
impeachment that involved matters of which the prosecution had failed to elicit evidence.
She explained that she did so to avoid allowing the State a second opportunity to prove those
matters on redirect. Furthermore, lead counsel said that she strategically performed a “soft
cross,” eliciting more forthcoming responses than the State had received.


      The post-conviction court found that Boston failed to prove that trial counsel’s acts
were deficient representation for the purposes of establishing the ineffective assistance of
counsel. The court stated:


               This Court finds that both [trial counsel] met with the victim in a
       pretrial interview and therefore had an understanding of the victim’s
       personality before hearing her testify during trial. The Court credits [lead
       counsel]’s testimony that she observed the victim become quiet during her
       direct examination by the State and felt that it made the victim appear to the
       jury to be hesitant to explain her story. The Court credits [lead counsel]’s
       opinion that limiting objections to harmful testimony and engaging in a “soft”
       cross-examination, designed to have the victim open up . . ., was a reasonable
       strategy to undermine the credibility of her story without eliciting sympathy
       for her by constantly objecting and aggressively cross-examining her. The
       Court therefore finds that the Petitioner has failed to prove that [lead
       counsel]’s efforts to impeach the victim were below the range of competence
       of an attorney in a criminal case.


        This Court has previously held that “cross-examination is a strategic and tactical
decision of trial counsel which is not to be measured by hindsight.” State v. Kerley, 820
S.W.2d 753, 756 (Tenn. Crim. App. 1991). “Allegations of ineffective assistance of counsel
relating to matters of trial strategy or tactics do not provide a basis for post-conviction relief.”
Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). Lead counsel avoided
impeaching the victim on grounds that would have provided the State with another
opportunity to elicit proof against Boston. Additionally, lead counsel did not impeach the
victim in order to obtain “forthcoming” responses, contrary to those that the State received


                                                -9-
on direct. The record reflects that trial counsel’s strategic decisions regarding cross-
examination were informed by adequate preparation and were well within the range of
competent representation to which Boston was constitutionally entitled. Moreover, this
tactical decision conceivably contributed to the prosecution’s failure to elicit evidence on
several of the charged offenses, leading to the dismissal of those charges. The post-
conviction court’s findings are supported by the record, and the petitioner has failed to
demonstrate deficient performance or prejudice. As a result, his claim merits no relief.


                                     CONCLUSION


       Upon review, we affirm the judgment of the post-conviction court.


                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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