         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 23, 2000 Session

                RONALD E. WALTON v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Hamilton County
                          No. 169648    Douglas A. Meyer, Judge



                                  No. E1999-01165-CCA-R3-PC
                                       December 28, 2000

After a hearing, the petitioner appeals the criminal court's order dismissing his petition for post-
conviction relief. Convicted in 1968 of assault and battery with intent to rape, the petitioner was
sentenced to incarceration for ten years. The petitioner has fully served his sentence in Tennessee.
However, his Tennessee conviction was used to enhance his 1980 conviction of rape in Indiana. The
petitioner proceeds to challenge his Tennessee conviction, in hope of a sentence reduction in Indiana.
After careful review, we affirm the criminal court’s dismissal.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ALAN E. GLENN, JJ., joined.

Philip L. Duval, Chattanooga, Tennessee, for the appellant, Ronald E. Walton.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General;
William H. Cox III, District Attorney General; and Bates W. Bryan, Jr. and Rodney C. Strong,
Assistant District Attorneys, for the appellee, State of Tennessee.


                                             OPINION

                                         Case Chronology

       The petitioner was originally indicted twice for the same conduct by a Hamilton County
Grand jury on September 11, 1968. When the petitioner was tried, he was found guilty and
sentenced by a jury on October 30, 1968, for assault and battery with intent to rape.

       On December 13, 1968, a jury found the petitioner guilty and sentenced him for first degree
burglary with intent to rape. These two cases were then consolidated for direct appeal.
        On direct appeal, the Court of Criminal Appeals affirmed the conviction for assault and
battery with intent to rape, but reversed and dismissed the first degree burglary with intent to rape
on double jeopardy grounds. Walton v. State, 448 S.W.2d 690 (Tenn. Crim. App. 1969). The
Supreme Court denied permission to appeal further on December 15, 1969. Walton, 448 S.W.2d
690.

       In November 1987, the petitioner filed a pro se petition for post-conviction relief, challenging
his 1968 conviction. The petition was summarily dismissed in February 1988. The petitioner
subsequently appealed the trial court’s dismissal. This Court reversed the trial court and remanded
the matter for further proceedings. Ronald E. Walton v. State, Hamilton County, No. 1073 (Tenn.
Crim. App., filed February 1, 1989, at Knoxville), perm. to app. denied (Tenn. 1989).

        After this Court remanded the case, counsel was appointed in July 1989 and an amended
petition was filed. The amended petition alleged that the petitioner received ineffective assistance
of counsel at his 1968 trial. Because the petitioner was incarcerated in Indiana, action on the
amended post-conviction petition was postponed until his testimony was taken by deposition in
October 1998. Three hearings on the amended petition were then conducted: the first in June 1998,
the second in November 1998, and the third in June 1999. On June 28, 1999, the trial court denied
the petitioner's requested post-conviction relief. It is from this denial that the petitioner now appeals.

       In this appeal the petitioner contends that his trial counsel’s performance at the 1968 trial was
deficient. Specifically, the petitioner alleges that trial counsel’s performance was ineffective for the
following reasons:

        1. Failure to meet and consult with him adequately;
        2. Lack of effective cross-examination of the victim, specifically as relates to her
           ability to recognize his voice and her description of the perpetrator’s clothing;
        3. Failure to discredit the fingerprints and shoe print evidence discovered at the
           crime scene;
        4. Failure to call several witnesses that would testify consistent with the petitioner’s
           defense that the victim concocted the assault story to cover her illicit affair;
        5. Failure of counsel to object to the victim’s reference of the petitioner’s recent
           release from “Pikeville,” a juvenile detention facility; and
        6. Counsel erred in questioning the petitioner about his juvenile record.

The petitioner insists that but for these deficiencies, he would likely have been found not guilty.

       The petitioner’s 1968 trial counsel also testified at the post-conviction hearing. He
remembered very little about the specifics of the 1968 trial. He began practicing law in Chattanooga
in August 1968 and this trial occurred in October 1968. This case was one of his first criminal trials.

        The following recitation of facts is from the opinion of this Court on direct appeal from the
petitioner’s conviction:


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       In the instant case Carolyn Few testified that she was in her home alone and asleep
       during the night of July 21, 1968. She had just been married four months and her
       husband was at work, on the third shift. She stated that she was awakened at about
       four o’clock in the morning, that the defendant was in her bedroom, that he jumped
       on top of her and put his hands around her throat and told her that if she screamed he
       would kill her. She continued her testimony by saying that she told the defendant
       that she was in her menstrual period and that she would have to wash up. The
       defendant let her go into her bathroom, and she filled the basin with hot water,
       soaked a wash rag in it, and when the defendant came into the bathroom she hit him
       in the face with the hot rag, screamed and ran out the back door for help. She
       testified that she could see and recognize the defendant, that she had known him for
       about five years because he ran around with her brother.

       Carolyn Few testified that she could see the defendant clearly, that her bedroom is
       illuminated by a street light outside, and that this light shone on his face.

       It is clear from this record that Carolyn Few knew the defendant for several years
       prior to this crime, that she had known that he was a friend of her brother’s, and that
       she had seen him frequently. It is also clear that she did not know his name, and for
       this reason, on cross examination, her testimony was at times vague on the question
       of whether she knew the defendant. There is absolutely no question in our opinion
       that she did know the defendant, and that she identified him as her assailant, but she
       was not sure of his name until she asked her brother.

       Defendant’s witnesses who attempted to establish an alibi in his behalf were all
       members of his family. They testified that the defendant was at home and in bed at
       times before and after this crime, but none of them testified that he was at some other
       place than the home of Mrs. Few at the time she says she was assaulted.

       Upon a review of the entire record it is clear that the defendant has failed to carry the
       burden of demonstrating here that the evidence preponderates against the verdict of
       the jury and in favor of his innocence.

Walton v. State, 448 S.W.2d 690, 694-95 (Tenn. Crim. App. 1969).


        After conducting the post-conviction relief hearing, the trial court, in its Order Denying
Petition for Post-Conviction Relief, set out several pertinent findings. These findings include:

       (1) The petitioner failed to prove that his constitutional rights were violated by
           ineffective assistance of counsel.




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(2) The trial attorney chose not to vigorously cross-exam the victim about her
    identification of petitioner. To have done so, may very well have strengthened
    her testimony. She had known petitioner about five years. He ran around with
    her brother and had been to their home. She very well could have recognized his
    voice and his face and needed help in remembering “Lebron’s brother’s name.”

   He did question the victim as to whether she had been to a party that evening, had
   men over while her husband was at work, knew Percy Blocker or Jimmy Green,
   and whether she had had a fight with one of her lovers that night. And although
   questions attorneys ask are not evidence, he did manage to plant that “seed” of
   doubt in jurors’ minds.

   He may not have subpoenaed Lindsay, Blocker and Green, because he would not
   be sure what their testimony would be, unless they voluntarily came to court to
   tell it. Even if Blocker had come to court, his testimony about being sexually
   involved with the victim, would probably not have been permitted.

(3) Trial attorney did not need an expert witness about the latent fingerprints.
    Detective Gilliland testified that they were not petitioner’s.

   Obviously, the trial attorney knew what Gilliland would testify to, he called him
   as a witness, not the State. His cross-exam of the victim and other witnesses
   indicated he knew before what their testimony would be. The prosecutor, in his
   closing summation, said, “Mr. Carpenter worked very hard on this case. Exerted
   all efforts to give Walton a good defense.” The trial attorney had obtained
   discovery by talking to the prosecutor to find out what the State’s proof would
   be.

(4) The one glaring mistake the trial lawyer made was asking petitioner about his
    juvenile record. Some attorneys feel it is better to bring out on direct a
    defendant’s record, but that is only if the State is going to be able to do it on
    cross-examination. In this case, the State could not have asked petitioner about
    his juvenile record. Petitioner’s answer “two counts of robbery, and one time a
    burglary” was extremely prejudicial to petitioner.

   But, petitioner was not entitled to a perfect trial. Trial counsel performed as well
   as a lawyer with ordinary training and skill in criminal law would and his service
   was within the range of competence demanded by attorneys in criminal cases.
   But even if he did not, there is no showing of any reasonable probability that
   petitioner would not have been found guilty.


                                      Analysis


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        This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington,104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance was deficient,
and (2) the deficient performance resulted in prejudice to the defendant so as to deprive him of a fair
trial. See Strickland v. Washington, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn.
1990). To demonstrate prejudice, a defendant or petitioner must show that there is a reasonable
probability that but for counsel’s error, the result of the proceeding would have been different.

        The test in Tennessee for determining whether counsel provided effective assistance is
whether his performance was within the range of competence demanded of attorneys in criminal
cases. See Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s
conduct falls within the wide range of acceptable professional assistance. See Strickland, 104 S.Ct.
at 2065; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998), Alley v. State, 958 S.W.2d
138, 149 (Tenn. Crim. App. 1997). Therefore, in order to prove deficiency, petitioner must show
that counsel’s acts or omissions were so serious as to fall below an objective standard of
reasonableness under prevailing professional norms. See Strickland,104 S.Ct. at 2065; Henley v.
State, 960 S.W.2d 522, 579 (Tenn. 1997); Goad, 938 S.W.2d at 369.

         In reviewing counsel’s conduct, a “fair assessment . . . 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, 104 S.Ct.
at 2065. The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy and tactical
choices apply only if the choices are informed ones based upon adequate preparation. See Goad, 938
S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley, 958 S.W.2d at 149; Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Further, because the petitioner’s case was
filed in 1987, the petitioner has the burden of proving his case by a preponderance of evidence. See
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

        Finally, the trial judge’s findings of fact in post-conviction hearings are conclusive on appeal
unless the evidence preponderates otherwise. See Butler, 789 S.W.2d at 899; Adkins v. State, 911
S.W.2d 334, 341 (Tenn. Crim. App. 1995). In fact, the trial court’s findings of fact are afforded the
weight of a jury verdict, and this Court is bound by the findings unless the evidence in the record
preponderates against them. See Henley, 960 S.W.2d at 578. That burden lies with the petitioner.
See Id. at 579.

        Based upon our de novo review of the entire record and the findings of the post-conviction
court, we conclude that the evidence does not preponderate against the trial court’s finding.

       The petitioner failed to carry his burden on the issue of trial counsel failing to meet or consult
with him adequately. The record reveals that counsel was prepared to cross-examine key witnesses,
develop defenses, and call witnesses that possessed favorable testimony for the petitioner.


                                                  -5-
        The petitioner contends that there was a lack of effective cross-examination of the victim and
a failure to discredit the fingerprint and shoe print evidence discovered at the crime scene. After
reviewing the record, we conclude that the evidence does not preponderate against the post-
conviction court’s finding of effective assistance of counsel. Although cross-examination of the
victim may have strengthened the victim’s testimony about her identification of the defendant, trial
counsel’s abandonment of more strenuous cross-examination was a tactical decision that we will not
second guess. The record reveals that trial counsel effectively discredited the fingerprint and shoe
print evidence, and that there was no need for additional expert testimony on this issue.

        The petitioner next claims that trial counsel was ineffective for asking the petitioner about
his juvenile record. After reviewing that claim, we conclude that the evidence does not show a
likelihood that the defendant would not have been convicted but for this prejudicial evidence. It is
clear that such evidence would not have been admitted upon cross-examination by the State.
However, given the clear evidence of guilt at trial, we find that it was harmless error. See, e.g., State
v. McGhee, No. 85-241-III (Tenn. Crim. App. Filed on Nov. 28, 1986, at Nashville).


                                           CONCLUSION

        After careful review, we affirm the post-conviction court’s denial of the petitioner’s claim
for post-conviction relief.




                                                        ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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