### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 2, 2001
BARTON L. HAWKINS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P-22204 W. Otis Higgs, Jr., Judge

No. W2001-00738-CCA-R3-PC - Filed January 18, 2002

A Shelby County

jury convicted the Petitioner of rape , and t he tri al cou rt sen tenced him as a Range I violent offender to eight y ears and one day

in the Tennessee Department of Corr ectio n. The Petitioner subsequently filed a

petition for post-conviction relief. The tria l court c onducted

a postconviction hearing and denied relief. The Petitioner now appeals the denial of post-conviction relief, arguing that he r

eceive d ineffective as sistance of counse

l at trial. Specific ally , he conte nds that hi s counsel (1) failed

to agg ressively q

uestion the victim

regarding consent; (2) f

ailed to object to the admiss ion of expert testimony; (3) failed to ag gressively cross-examine the prosecution’s ex per t witness concerning her qualifications and her testimony in chief ; (4) fail ed to pre

pare or investig ate the case; (5) failed to object to “prejudicial witness examination and a rgument regarding

the swapping of” a car battery ; (6) failed to discuss defe nse st rategy with the Pe titioner; (7) fail ed to question the P etit ioner about his k nowle dge of the victim’s previous sexual behavior; (8) failed to review the tran script fr

om the Petit

ioner’s prelimina

ry hearing ; (9) fai l ed to offer e vidence of an injury to the Petitioner’s hand; (10) failed to argue in closing the weig ht the jury should give testimonyby t

he State’ s expert witness and failed to object to th e State’s defi nition of r easonab le doubtin closing arguments; and (1 1) “fa iled to raise all probable issues on appeal.” Having reviewed the record, we conclude that the Petitioner’s representation was not deficient and there fore affirm the judgment of the trial court deny ing post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and J OSEP H M. T IPT ON , J., joined.

Robert Lit

tle, Memph

is, Tenne ssee, fo

r the App ellant, Ba

rton L. Ha

wkins.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney Genera l; William L. Gi bbon s, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION1 An applicati on for permissi on to appeal to the T enn essee Sup rem e Co urt w as no t filed in th is case. See Tenn.

R. App. P. 11.
-2- In 1997, a Shelby County

jury convicted the Petitioner, B arton L. Hawkins, of rape

. The trial court sentenced h im as a Range I violent offender to eig ht years a nd one day in the Te

nnessee Department

of Corre ction. On

direct a ppeal, th is Court af

firmed th e Petitione

r’s convicti on an d sentence. See State v. Barton L. Hawkins , No. 02C01-9711-CR-00430, 1998 WL 784743 (Tenn. Crim. App., Jackson, Nov. 12, 1998). 1

On November 19, 1999, the Petitioner filed a pro se petition for p ost-co nviction relief. Followin g appointment of counsel to represent the Petitioner in post-conviction proceeding s, the Petitioner subsequently filed an a

mended petition for post-conviction relief and a second amended petition for post-conviction re lief. On No vember 3 0, 2000, the trial c ourt cond ucted a p ostconviction hearing. On February 27, 2001, the trial court entered its “Findings of Fa ct and Conclusions of Law

on Petition for Post-Conviction Relief” and deniedpost-con viction re lief. I t is from the t rial cou rt’s den ial of pos t-conviction relie f that the Petitioner

now appe als.

The Petitioner contends that he received ineffective assistance of counsel at trial. He argues that he is entit

led to post-con

viction re lief bec ause his attorney: (1) f ailed to aggressively

question the victim regardingconsent; (2) failed to object to the admission of expert testimony; ( 3) failed to aggr essively cross-e xamine the p

rosecut ion’s expe

rt witnes s concerning her qualifications and he r testimonyin chief; ( 4) failed to prepare or investigate the case; (5) failed to object to “prejudicial witness examination and argument regarding the swapping of” a car batter y; (6) f ailed to discuss defense strategy with the Petitioner; (7) failed to question the Petitioner about his knowledge of the vic tim’s previous sexual behavior; (8) failed to review the transcript fr om the Petitioner’s preliminary

hearing; (9) failed to offer evidence of an inju ry to the Petit

ioner’s hand; (10 ) “failed to argue in closing the

weight the jury

should give the State’s expert witness’s testimony” and fa iled to object to

the State ’s defin

ition of “r

easonab le doubt” in closin g ar guments ; and (11) “failed to raise all probable issues on appeal.” Having re viewedthe rec ord in

this case, we conclude that the Petitioner was not denied effective assistance of counsel a ttrial and therefore affirm the judgment of the tri al court

. I. FACTS

A. Facts Presente

d at Trial

The f acts underlying

the Petitioner’s conviction were summarized by this Court on di rec t appeal a s follows: The victim testified thatshe was d riving home when an unidentified man flagged her do wn to help the appellant, whose truck had broken down. The problem wa s appare ntly a defective battery . After a failed attempt to jump-start the truck, the victim agreed to drive

the appellant

to his home where he said he could get another ba tt er y. The victim stated that upon reachingthe appel lant’s home, the appellant-3-

tried to kiss her. She resisted and a struggle ensue d, endingwit h the appellant dragging her “kicking and scream ing” into his house. Neighbors of the appellant corroborated

that they hear d a woman’s s creams coming f rom the a ppellant ’s home on the night of the rape.

The victim tes tified tha

t, once inside his home, the appellant held up a bandanna and ordered her to sit. The victim asked to use the restroom, and the appellant permitted her but entered the restroom

withher to watch. He then ordered her to undress and took her to another

room where he va

gina lly rape d her . He a

lso de manded or

al sex, and the victim complied. In response to the defense ’s question why she did not fight
or struggle during

the rape, the victim stated that she was afraid the appe llant woul d kill her. S he state d that she did not con sent.

Imme diately

after the rape, the appellant hug ged the victim an d told her he
was sorry. He the

n drove the victim, in her

vehicle, to a gas station where he stopped and went inside, leaving thevictim alo ne in the vehicle for approximately five to ten minutes. The appellant stated that heleft t he vehicle running with the key s in the ignition. There were other people around the station and the area was we ll lit. The victim did not attempt to escape or ask for help because, she said, she wasafraid that the appellant would kill or hurt her. The appellant then drove the victim back to hi s truck, switched his battery for hers, and let her go.

After reporting the incident some two hours later, the victim was taken to the Memphis Sexual Assault Resource Center where she was examine d. Margaret Aiken, the examining nurse, testified that she found scratches on the victim’s upper left arm and left clavicle. She also found genita l trauma o f the post

erior fo urchett e and an abra sion or sc

rape of that are a. These

injuries, Aik en tes tified, were consistent withforced penetration and are not ordinar ily associated with consensua l
sex. Wh en pressed, however, Aiken could not rule out the possibility that such injuries could result from consensual sex. Aiken’s examination revealed no further injuries. The victim, however, testified that she had also sustained bruis es on h er leg, chest, and arms; and the state introduced photographs of these bruises that had been taken two days a

fter the rape.

The appellant’s versionof the facts were that although he did attempt to have
sex with the victim, it was consensual. He explained the scratches on the victim as t he result of

her bec oming ca

ught in hi s climbing

rose bush . He expla

ined he r screams as the result of his dog frig htening the victim. Id. at *1-2.

B. Testim ony at Po st-Convic

tion Hear

ing2 We note t hat t he nurse is referr ed to in t he opinion of thi s Court on dire ct appeal as “Margaret Aik en,” w hile she is refe rred t o in t

he recor d of t he post -convi cti on proceedi ngs as “Margaret Akin.” For t he sake of con si st enc y, we will us e the sp elling o f M s. Aik en’s n am e that w as use d by this Co urt on direc t app eal.
-4- At the post- convicti on hearing, the Petitioner

testifie d that his a

ttorney did not adequately investig ate or pr ep ar e h is ca se . H e s ta te d t ha t h is co un se l “ fa il ed to in ve st ig at e t he pl ai nt if f’ s h is to ry. Failed to investigate the plaintiff’s friends. Failed to investiga te the c rime scene. Failed t o investigat e the pers onal injur y.” He spec ifically

complained that hi s attorne y di d not inter

vie w Margaret Aiken, 2 the nurse wh o examined the victim

on the nig

ht of the c

rime, pri or to trial. The Petitioner maintained that if hi s counsel had interviewed Aiken prior to trial, counsel would have fully understo od Aiken’ s “opinion ” about th e genit al trauma and abra sion that th

e victim sustained, and co un se l c ou ld ha ve mo re ef fe ct iv el y c ross-ex amined Aiken regarding the issue of “forced entry .” The Petitioner also testified that hi s counsel should have sought an expert to rebut Aiken’s testimony.

In addition, the Petitioner te stified th at his atto

rney failed to discuss de

fense st rateg y w ith him. He stated that he and his counsel did not have a good ra pp ort durin g trial preparations. He explained, “I f

elt [that my attorney

] was dishonest. . . . I basically was wanting to get another lawyer.” Howeve r, the Pet itioner a lso admitte d that the

ir strained rela

tionship “had a lot t

o do with [the Petitioner].” He admitted that he was not completely honest with his attorney , stating, “I didn’t share with him what actually happened.”

The Petitioner further testified that he asked his attorney to obtain a copy of

the preliminary he aring trans cr ip t s o t ha t h e c ou ld ex am in e i t f or in co ns is te nc ie s i n t he vi ct im ’s te st im on y. However, he claimed that his attorney failedto obtain the transcript. The Petitioner reported that the victim provided testimony at the preliminary hearing that was inconsistent with her testimony at trial regarding whether her key s were in her car after the crime; whether the Petitioner acciden tall y knocked her glasses off

of her head during the incident; whether the Petitioner “dragged”her into
a room in his house or w hether s he walke d into the r oom; and whether t

he vic tim fought the Petitioner during the rape.

The Petitioner

testif ied that he asked

his lawy er to supp ress the statemen t that he ma

de to police, but that his lawyer “r efused to do that.” He claimed t hat his att orney “just ment

ioned tha t it wouldn’t do any g ood” and “didn’t try .”

The Petitioner also maintained that his attorney should h a ve objected to the admission of testimonyby Marg aret Aiken. He complained that his attorney did not object to the prosecution and the trial court referring to Ms. Aiken a s “Dr . Aiken,” stating, “She wasn’t but a nurse. She had a Doctor’s degree in mental health.” The Petitioner insisted that the fact that all parties involved referred to Ms. Aiken as “Dr. Aiken” caused the jurors to think that “she was a me di cal ex per t. ” In addition, the Petitioner complained that his attorn ey should have objected to Aiken’s testimony after Aiken admitted that she couldn’t “rule . . . out” the p ossibi lity of consensual sex between the Petitioner and the vi ctim. Acc ordin g to the Petitioner , Aiken te stified, “ I don ’t deal w ith people-5-

involved with consensual sex as far as my personal knowledg e in observing these injuries.” The Petitioner asked, “[I]f she didn ’t have experience in any consensual sex, how could she know
w hether an abrasion occurred or not? How could she say . . . that it was consistent with force d
en try ?” The Petiti oner als o complai ned that h is la wyer should have

“asked for cautionary instructi ons” regar

ding Ms. Aiken’s testimony which appa rently would have sta

ted that Ms. Aiken’s testimony was her opinion and not that of a n expert.

The Petitioner further testified that his attorney

failed to object to the prosecution as king him “over thirty” questions “on the [car] battery issue.” He testified

that he be lieved hi s lawyer’ s failure to object to

the State ’s questio ns left the jury with the imp ression that after the incident, he abandoned

the victim on the side of the road with a bad battery for her car. The Petitioner stated, “Her car was running, I

just . . . switched batteries. I knew it would take he r home . . . .”

The Petitioner was questioned about aninjury to his hand that he suffer ed prior to the crime. He responded, “I don’t think it’s relevant in this Post Conv iction He aring. ” He the

n decline d to discuss the matter further.

The Petitioner next complained that his attorney failed to make appropriate objections during closing arguments. He claimed that “in the c losing argument the prosecutor misled the jurors and confused them, simpl

y by taking t he evide nce that

. . . the nurse gave [and] adding words to it.” The Petitioner testifie d that whil e Marga ret Aike n merely stated tha t “she couldn’t rule it out tha t it could happen consensu ally ,” the St ate state d in closing arguments that “the only way this abra sion can
occur is throu g h forced entry .” The Petitioner explained, “Therefore, it’s not unmistakable proof and it’s not the only way

it happened.”

In closing, the Petitioner listed several objections that he believed his attorney should have made. He

stated tha

t his attor ney “[f]ailed to object to the Court not allowing medical d ocuments that were in p lain Eng lish.” The Pe titio ner also stated that his attorney “[f]ailed to object to the prosecutor

misconduct, leadin g the witness, Nurse Atkins [sic].” He testified that his attorney “g ave only two . . . contemporaneous objections in trial, that [he was] aware of.” He stated, “I just didn’t see him being an adversary in the trial at all.”

Fi na ll y, the Petitioner complained that his attorney f ailed to raise all issues on appeal tha t could have been raised. Specifically, he sta ted that his attorney did not raise as an issue the matter of “the nurse being called a doctor.”

On cross-examination, the Peti tioner testified that his lawyer failed to investigate whether the Petitioner ’s relation s with the v ictim wer e consen sual. He

also rep orted tha

t his lawy er “only asked[the v ictim] a

few questions” at trial. He maintained that his counsel “should have asked her
was there any

demand for sex. Was there any communication tha

t he wa nte d to ha ve se x wi th y

ou? ” The Petitioner testified that he cou ld not rec all whether he reque sted that h

is attorne y a sk these questions of

the victim. However, despite his insistence that his lawy er erred by

failing to question the victim regarding consent, the Petitioner also testified at the post-c onviction hearing that he “took-6-

[the victim] in

the house against her will.” He stated, “I didn’t want her

to leave me. I reme

mber that.”

The Petitioner testified that he met with his attorney “f ive, six, seven times,” both while he
was in custody and out on bond. He complaine d that his lawyer ne ver convey ed to him any plea offers from the State. He testified, “[My a ttorney] asked the prosec utor at the day of

trial, as we .
. . was [sic] walking in toward the courtroom . . . what is y our offer. And [the prosecutor] looked at him and said, there ain’t one.” However, the Petitioner also a dmitted, “I pretty

much didn’t want to plead guilty”

and stated that soon after his arraignment, he told his attorney to sethis case fo

r trial.

With regar

d to the compl aint in his p ost-conviction pe tition conc erning

his attorney’s f

ailure to inquire a

bout t h e Petitioner’s knowledge of the victim’s sexual behavior prior to the crime, the Petitioner testified that he did not know the victim before the crime, had never e ngaged in sexual relations with her, and did not know a

nyo ne who ha

d enga ged in se xual relat ions with he

r in the pa st. He stated, “[T]hat’s why

I didn’t bring

that issue up . . . her e.” Conc erning

the compl aint in his p ostconviction petition that his attorney failed to allow him to present a ll relevant issues when h e testified in his own defense, the Petitioner admitted that his attorney did not prevent him from testifying a

bout any issues while he wa s on the stand.

The Pe ti ti on er ’s at to rn ey r esponded to the Petitioner’s allegations at the post-conviction hearin g. Counsel testified that he had been an attorney

since 1974 and estimated that he had tried at least one hundred cases over the span of his ca reer. Hestated that he was in private practice and also worked p art-tim

e as a Pub lic Defender. Counsel reported that he was a ppointed to the Petitioner’s case in his capacity as a Public Defender.

Counsel reca lled that he had tr ouble mai ntaining

contact with the Pe

titioner p rior to tr ial. He testified that after the Petitioner was released on bond, there were long periods of time when he didnot hear from the Petitioner. C ouns el stated that he sent two letters to the Petitioner in which he informed the Petitioner of his impending trial date. In the first letter, counsel wrote: “I t appears that you made bond on Mar

ch the 7 th , 1997, but since I haven’ t heard f rom y ou I c an only

assume you’ve employed private c ounsel and no longer need the service of the Public Defender’s Office.” In the second letter, counsel wrote: “I f you plan on being represented by

the Public Defender’s Office you need to call me immediately .” Counsel testified, “[J]udging from those letters and the best of [m y] recoll ectio n, I had v ery littl e cont act wi th [t he Pet itio ner] d uring” the late spring and summer prior to the Petitioner’s trial. He also stated that the Petitioner told him “at some point in time that he was going to try

to hire private counsel.”

Counsel testified that he di d not represent the Petitioner in General Sessions Court, but he reported that he received a

copy of notes take

n by the attorney

who represented the Petitioner at his preliminary

hearing. Counsel also did not recall receiving a letter from the Petitioner in which the Petitioner requested that counsel obtain a copy of the

prelimina

ry hearing transcr ipt, and he

could notrecall w

hether h e ever o btained a copy of the pr elim inary hea

ring transcript or listened to an audio tape of the hearing. Although he co uld not recall whether the Petitioner requested that he-7-

obtain a copy of the pr

eliminar y he aring t

ranscr ipt, couns e l stated, “[ th er e’ s] no re as on wh y I wouldn’t have [gotten a copy

of the tran s cript] if . . . it was available.” Nevertheless, counsel reported that he impeached the victim at trial using her testimony from the preliminary

hearing. He stated that he had no “independent recollection” o f doing so, but reported that the impeaching questions he asked were reflecte d in the trial record. He further testified that in February

1997, prior to the Petitioner’s first trial date, he gave the Petitioner copies of all discovery

document s that he had in his possession.

With regard t o the Pe titioner’ s alleg ations co ncernin g the nu rse that e xamined the

victim following the incident, counsel testified that he was familiar with Marga ret Ai k en. He stated that she was a nur se from th

e Memphis Sexual Assa

ult Resour

ce Cente r and had been qua li fied as an expertin c ourt many

times. He ackn owledg ed that Ai ken had a

Ph.D. in the

area of health administration. Counsel sta ted that he did not ob

ject toAiken’s qualifications because he did not know of a rea son to do so. He also testified that he did not recall the Petitioner asking him to object to Aiken’ s qualific ations.

Counsel testifie d that he d id not reme

mber discussing th

e issue of trauma with the Petitioner prior to trial. He recalled, however, that the def ense which he and the Petitioner decided to pursue at trial wa s that the s exual enc ounter be tween the victim and the Peti tioner was consensual. He stated, “[T]he bes t of my

recolle ction [is] that the victim had several opportunities to leave or escape
or whateve r y ou want to

callit and she didn’t.” Counsel testified that he did not seek out an expert in the area of “trauma” bec ause he “didn’t think one was necessary .” Counsel stated that he did not repres ent the Pe

titioner o n appea

l.

On cross-examination, counsel testified that he never spoke to the victim prior to trial, and he was not su

re wheth er any one from the Public

Defend er’s Offic e spoke to

her bef ore tria l. However, he reported that he asked an investig ator to de

termine w

hether t he victim had a criminal record, and the in

v estigator found no criminal record of any type. Counsel also reporte d that he viewedphotographs of the crime scene. Counsel testified that, to the best of hi s recollection, he did notinterview Marg aret Aik en prior to trial. H e furthe

r testif ied that he never discussed with the Petitioner hirin g a medical expert

for the defense. I

n addition, counsel testified that he reviewed a copy of the victim’s rap e crisis r eport pr ior to tria l.

Counsel was asked about the Petitioner’s statement that was intro duced int

o evidenc e at tria

l. Counsel testified that he could not recall if he considered having the statemen

t suppres sed prior

to trial and that he did not recall the Petitioner ever aski ng him to file a motion to suppress the statement. He also stated, “I don’ t recall that we ever had a suppression hea ring.”

II. ANALY SIS-8-

The Petitioner now contends that he is entitled to post-conviction relief because he rece ived ineffective assistance of counsel at trial. I n order to obtain post-conviction relief, a petitione r must sho w that his or her conviction or sentence is void or voidable because of the abri dgment of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bear s the bur den of proving factual allegations in the petition for post-conviction relief by clear and convincing evidence

. Id. § 40-30-210(f). A post-conviction court’s factua l findin gs are subject to a de novo review b y th is Court; howev er, we m ust ac cord t hese fa ctual findi ngs a pr esumption of corr ectness , which is overcom e only when a pr

eponder ance of th e e vidence is contrary to the post-conviction court’s fac tual findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law, such as whether counsel’s performance w as deficient or whether that deficiency was pr ej ud ic ia l, ar e s ub

je ct to a p ur el y de novo review b y th is Court, with no presumption of correctness. Id. at 457.

The right of

a crimina

lly a ccused t o repre sentation

is guar anteed b y both the Si x th Amendment

to the United States Constitution and Article I, Section 9 of the Tenne ssee Constitution. Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to

representation includes the right to "re asonably ef fective" assistance. Burns , 6 S.W.3d at 461.

In review ing a claim of ineffective assistance of counsel, this Court must determine whether the advice given or services rendered by the attorney

are within the range of competenc e demanded of attorneys in criminal ca ses. Bax ter , 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that "counsel’s represe ntation fell below an objective standardo f reasonab leness," Strickland v. Washington , 466 U.S. 6 68, 688 (1 984), an d that this performance

prejudiced the defense, r esulting in a failure to produce a reliable r esult. Id. at 687; Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993). To sat i sfy the requir ement of prejudice, a peti tioner must show a reasonable probability that, but for counsel’s unreasonable error, the fact finder would hav e had re asonable doubt regarding the petitioner’s g uilt. Strickland , 466 U.S. at 695. This reasona

ble proba bility must be "sufficient to undermine confidence in the outc ome." Id. at 694;
see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994).

When evalu ating a n ineff ectiv e assi stanc e of cou nsel c laim , the r eview ing cou rt sho uld j udge the attor ney ’s pe rfor manc e wit

hin the con

text of the ca se as a whole, tak ing into a ccount a ll relevant circumstances. Strickland , 466 U.S. a t 690; State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Cr im. App. 1988). The reviewing court must evaluate the que stionab le conduc t from the attorney ’s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d a t 746; Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and "should indulge a strong presumption that counsel’s conduct fa lls within the wide range of
reasona ble profession al assista nce." Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). A. Cross- Examinat

ion of Victim-9-

The Petitioner

first com

plain s that his attorney fa iled to aggressively

cross-examine the victim regar ding co nsent. I

n its “Fin dings of

Fact and Conclusio ns of L aw on Peti tion for Po stConviction Relief,” the trial court found this assertion to be without merit. The trial court pointed outthat “Petitioner’s de fenseat trial c entere d on the iss ue of con sent. Petitioner sta ted at his evidentiary

hearing that he ‘ took [the victim] in the house against her will. I didn’t want her to leave me.’” The trial court concluded that cross-examination is a strategic decision which lies within the discretion of

counsel and which may not be measured by

hindsight. The trial court also noted that “[c]ounsel must take care not to badger the witness, and in particular , the [v]ictim.”

The Petitioner has fai led to include in the appellate record the portion of the trial rec ord containing the cros s-examina tion of the

vic tim. It is the appellant’s duty on appe al to prepare an adequa te record in order to allow a meaningful review. Tenn. R. A pp. P. 24; State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993). Nevertheless, we are not preclude d from considering this issue as
we may take judicial notice of prior court records. See Church v. State , 987 S.W.2d 855, 859 (Tenn. Crim. App. 1998).

The trial re cord indi cates th at the Pet itioner’ s at to rn ey conducted a fair ly le ngthycrossexamina tion of the victim. Several of the questions asked on cross-examination were direct e d towardthe issue

of conse nt: The at torney asked the victim whe

ther she “volunta rily drove with [the Petitioner] . . . to his house,” and the victim responded that she did. He also asked the victim , “you weren’t dragged out of the bathroom by [the Petitioner], were you?” In a ddition, th

rough his crossexamination of the victim, the Pet itio ner’s at torney emphasized that af ter leaving the Petitioner’s home, the victi m sa t alone in the Petitioner’s car for five or ten minutes while the Petitioner went into a well-lit convenience store, where ther e were “a l ot of pe ople,” to buy a soft drink. Furthermore, the Petitio ner’s a ttorney pointed ou

t inconsist

encies b etween

the victim ’ s t estimony at the pre li mi na ry h earing and her testimony at trial. Finally, we

note that counsel conducted a recross-examination of the victim followi ng further questioni n g by the State on redirect examination.

Based upon our review of the trial record, we c onclude that the Petitioner has failed to demonstrate that his counsel was in any way ineffective in hi s cr oss -ex ami nat io n of th e vi cti m. It appears that the Petitioner’s attorney c onducted a thorough and competent cross-e xamination of

the victim at trial. Although the Petitioner now complains that his attorney should have questioned the victim more specifi cally r egard

ing the i ssue of c onsent, w e note tha t “cross -examinat

ion is a str ategic and tactical decision of

trial counsel which is not to be measured by hindsight,” State v. Kerley , 820 S.W.2d 753, 7 56 (T enn. Crim. App. 1991) , and “[a]l leg ations 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 3 74, 378 (T enn. Crim. App. 1991 ). We find this issue t

o be without merit.

B. Admiss ion of Testim ony by Exper

t Witness-10-

The Peti ti oner next argues that his attorney should have objected to Margaret Aiken’ s testimony at trial. With reg ard to thisallega tion, the tr

ial cour t made the

following

finding s: Ms. Aiken . . . conducte d the Victim’s examination, and therefore had personal knowledge. Furthermore, Ms. Aiken filled o ut the reports associated with that examination. Ms. Aiken’s personal knowledge theref ore extend ed to the Victim’s reports and e

xa mination. Petitioner fails to show this Court the basis for any objection to Ms. Aiken’s testimony. Further more, Counsel testified he could think of no rea son to obje ct to Ms. Ai ken’s qua lificatio ns. Ms. Aiken testified at trial as to the Victim’s examination and reports, as well
as injuries she typically

sees among rape victims. At the time of trial, Ms. Aiken was employed as an instructor at the University of Memphis’ s chool of n

ursing f or twenty (20) years, a

nd by the City of Memphis’ Memphis Sexual Assault Resource Center for nineteen (19) y ears. It is well within her range of experience to testify to injuries typ ically seen among rape victims, and to the injuries sustained by the Victi m in this
case. Petitioner

alleges, however, that at trial the State, Counsel, and the Court all referred to Ms. Aiken as “Doctor.” Revi ewing the trial tra nscript, Petitioner

is
correct. However, all referred to Ms. Aiken a s “Doctor” in re cognition of her educational attainme

nt; Ms. Aiken earned a doctorate in health ca re administration. Formal salutations in court are proper court etiquette. (Footnotes omitted.)

Having reviewed the record, we ag re e withthe trial

court’s conclusi ons conc erning this allega tion. The Petitioner

has failed to show deficiency with regard to his attorney ’s performance concerning the admission of Marga ret Aiken’s testimony.

C. Cross- Examinat

ion of State ’s Expert

Witness

In a related issue, the Petitioner contends that his at torney “failed to: (1) ag gressi vely

crossexamine the State’s expert wit ness reg arding

her qual ificatio ns, and (2 ) failed

to agg ressivelycrossexamine the State’s expert witness regarding her testimony in chief.” He

states, “A t no time did [counsel] object to, or challenge the expert’s qualifications.”

With regar

d to the Pet

itioner’ s alleg ation tha

t his couns el fai led to ag gressi velycrossexamine Marga

ret Aike n conce rning he r qualifi cations, the trial court made the following finding s: Counsel testified that he had no reason to object t o Ms. Aike n’s quali fication s. Counsel knew of Ms. Aiken, and she was qualified as an expert many times before.-11-

Co unsel also testified that he does not recall Petitioner ever asking Coun sel t o question M s. Aiken’ s qualific ations. Ms. Aiken has a nursing degree, a bach elor’s degre e, a mast er’s de gree in nursi ng, and a PhD. in health care a dministra tion. Ms. Aiken worked, at the time of trial, for the University of

Memphis’ School of Nursing for twenty (20) yea rs, and for th e City of Memphis’ Memphis Sexual Assault Resource Center for nine t een (19 ) ye ars. Petitioner

provides no evidencethat he was prejudiced by

Counsel’s alleged failure to agg ressively c

ross-exa mine Ms. Ai

ken reg arding

her qual ificatio ns. (Footnotes omitted.)

The trial court made the following findings conce rning the Petitioner ’s al legati on that his attorney fa

iled to aggressively

cross-examine Margaret Aiken conc erning her testimony in chief: Petitioner’s contention centers on Ms. Aike n’s refer ence, d uring di rect an d crossexamination, to the Victim’s genital trauma. Counsel testified that he does not reca ll Petitioner ever asking him to look into trauma. At trial, Ms. Aiken testified the Victim had “some genital trauma of a portion of the fema le geni tals called the posterior fourchette.” Ms. Aiken, on direct, testified the Victim’s injury is consistent withforcible sex. On cross-examination, however, it was Counsel who elicitedfrom Ms. Aiken that the Victim’s injury may not occur ONLY duri ng forc ible sex, that it might occur during consensual sex. Counsel pursued this line of questioning during cross-examination. (Footnotes omitted.)

As previous ly s ta ted , the Petitioner has failed to provide a complete copy of the trial transcript for our review. Although it is the appellant’s duty on appeal to prepare an adequa te record in order to allow a meaningful review, Tenn. R. App. P. 24 ; State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993), we may ta

ke judicial notice of prior court records. See Church v. State , 987 S.W.2d 855, 859 (Tenn. Crim. App . 1998 ). We ther efore h ave rev

iewed de fense c ounsel’scrossexaminatio n of witne ss Marg aret Aik en at tria l.

Having reviewed the trial record, we a gree with the findings by the post-conviction court concerning this issue. We conclu de that the Petitione r’s attor ney conducted an eff

ective crossexamination of Marg aret Aik en. Fur thermore , even a ssuming t hat the a ttorney ’s perf

ormance with regard to his cross-ex amination o f Aiken w as ineff ective, the Petitio ner has f ailed to d emonstra te prejudice resulting from his attorney ’s performance. We find this issue to be without merit.

D. Pre-Trial Investigation and Preparation-12-

The Petitioner

argue s that his c ounsel fa iled to pro

perly investig ate his c aseand prepare for his trial. He contends that his attorney “failed to investigate the Vi ctim’ s history , and fai led to investig ate the Victi m’s frie nds, fail ed to inve stigate

the crime scene, failed to interview Ms. Aiken before trial, and also failed to obtain an expert to rebut the State’s expert.”

With regard to the Petitioner’s allega tion that his attorney fa

iled to investigate the victim’s history and frie nds, the tr ial cour t made the

following

comments: Coun sel tes tified he

request ed that hi s investig ator look into the Vi ctim’s pa st criminal record. Furthermore, Petitioner admitted he never ha

d sexual re

lations with the Victim before the night in question. Additionally , Petitioner knew nothing of the Victim’s past sexual history, nor did Petitioner know a nyone wit h know ledge of the Victim’s sexual histo

ry . Counsel a

lso testif ied that Pe

titi oner signed for, and received, a copy of the

Pre-Trial investigation on Februa r y 5, 1997. This

issue is without merit. (Footnotes omitted). We find no error on the part of Petitioner’s counsel in his investigation of the victim’s history. However , even assuming that counsel did err by failing to furthe r investig ate the victim’s history , it

is unclear how further investigation would have be nefitted the Petitioner’s case. We conclude that the Petitioner has failed to show any prejudice resulting

from his counsel’s failure to investigate the victim’s “history [] and . . . friends.”

The Petitioner further

argues that his attorney

failed to investigate the crime scene. However, counsel testified at the post-conviction hearing that he viewed photog raphs of the crime scene. The Petiti oner fails to state how he was prejudiced by the attorney’ s alleged failure to investigate t h e crime scene, and we see no evidenc e in the record of any such prejudice.

The Petitioner also argues that his attorney wasineffective for failing to interview Mar garet Aik en prior to trial and for failing to obtain the services of an e xpert witness to rebut Aiken’s te st im on y. As the tri al court noted, “[c ]ounsel ha s a duty to make r

easonab le investi gationsor to make a reasonable decision that makes particular investig ations unnecessary .” Strickland , 466 U.S. at 691. The trial court concluded, “Counsel testified that he did not believe a re buttal expert was necessary

. Counsel therefore made a reasonable decision making this investigation unnec essary.” (Footno te omitted). The evidence presented at the post-con viction he aring s upports thesefindi ngs by the trial court. We

conclude that the Pe

titioner h as faile d to demons trate tha t counsel was in any way ineffe ctive in h

is prepa rations f or trial.

E. Questioning by State Concerning Car Battery-13-

The Petitioner

next argues that h

is attorne y “ failed to

object to extensive prejudic ial witne ss examination and arg

ument re garding the sw apping of Peti tioner’s [car] battery f or that of the victim.” However, we note th at “[a] witness may be cr oss-examined on any

matter r elevant to any issue in the case, including

credibi lity

. . . .” Te nn. R. Evid. 611(b). We

also note that

“the sco pe of crossexamination is largely

within the trial court’s discretion, and . . . such discretion will not be disturbed absent a finding of abuse.” State v. Bragan , 920 S.W.2d 227, 244 (Tenn. Crim. App. 1995). We find
no error on the part of the Petitioner’s attorney by failing to object to question ing abou t the car battery . We thus find this issue to be witho

ut merit.

F. Defense Strategy

The P etitioner complains that his attorney fa iled to discuss defense strategy with him. As the trial cou

rt noted, “[t]he Petit

ioner’s def

ense theory

centered on his innocence, that the sexual encounter was consensual.” The

trial court made the following findings concerning this allegation: “Petitioner

fails to articu

late any shortcom ings with respec t to defe

nsestrateg

y. Pe titioner d id state ‘it had a lot to do with me.’ Petitioner admitted he was not ‘straight up’ with Counsel. Petitioner ‘may not cl aim error for

circumstances which he himself created.’ Shuttle v. St ate , 1995 WL 521000, at *3 (Tenn. Crim. App.).” (Footnotes omitted). We also note, as did the trial court, that “[c]ounsel testifie d the def ense ce ntered o n consen sual sex, th at the Victim had several opportunities to leave.” In addition , a ccording to the Petitioner’s testimony , the Petitioner and his attorney met five toseven time s prior to t rial. The trial cou rt concl uded that the Petitio ner’s a

llegat ion that his lawyer failed to discuss defense strategy with him is merely conclusory , and we agree. Conclusory allega tions, unsupported by facts, are subject to dismissal. Caruther s v. State , 814 S.W.2d 64, 69-70 (Tenn. Crim. App. 1991).

G. Inquiry into Knowledge of Victim’s Prior Sexual History

The Petitioner

contendsthat his co

unsel s hould have inquir

ed int o the P etit ioner ’s kno wledge of the victim ’s sexual b ehavior prior to the crime . In s ex offens e cases , evidenc e of a victim’s past sexual behavior is generally inadmissible. See Tenn. R. Ev id . 412(b)- (c). The Petitioner

fails to point out any exception to this rule that is applicable to his case. See Tenn. R. Evid. 412(c).

The Petitioner offered no evidence at the post-conviction hearing indicating that the victim’s past sexual behavior

was in an y w ay releva nt in this case . The Petit

ioner ins tead tes tified tha

t he did notknow the victim prior

to the crime, that he had never enga ged in sexual relations with her before the night of the crime, and that he did not know any one with whom the victim had pr e viously engaged in sexual relations. We thus conclude that counsel did not err by failing to inquire about the Petitioner’s knowledge of the victim’s previous sexual behavior. Furthermore, even assuming-14-

error on counsel’s part in failing to inquire into the victim’s sexual history, the Petitioner has failed to demonstrate prejudice resulting from any such failure.

H. Pre liminar y Hearing T ranscript

The Petitioner complains that his attorney failed to obtain a copy of the pr eliminary hear

ing transcript before trial. He

argue s that if hi s attorne y ha d obtaine d the tra

nscript, “his cro ssexamination of the Victim would have been more effective.”

Counsel could not recall whether the Petitioner asked him to obtain a copy of the preliminary hearing transcr

ipt. He al so could not recall wheth e r he reviewed the transcript of the Petitioner’s preliminary

hearing. Nevertheless, althoug h counsel had no specific recollection of reviewing the transcr ipt, counsel testified at the p ost-conviction hearing that he could think of no reason that he would not have reviewed the preliminary hearing transcr ipt if it wa s availa

ble to him. Counse

l also reported t hat he re viewed notes taken by the attorney who r

epresented the Petitioner at the p relimina ry

hearing . Finally , counsel testifie d that he i mpeached the vict im with reg ard to inconsiste ncies be tween he r testimon

y a t the preliminary

hearing and her t estimony at trial.

The trial court found the allegation that counsel failed to obtain a c opy of the pr eliminary hearing transcript to be “merely conclusory,”stating, “Petitioner f ai l[ed] to provide evidence supporting his factual allegation.” The trial court thus dismissed the allegation. See Caruthers , 814 S.W.2d at 69-70. Having reviewed the record, we conclude that the preponderance of the evidenc e presented at the post-conviction hearing is not contrary to the trial court’s findings with regard to this issue. We conclude that the Petitioner has failed to show error or any resulting prejudice on the part of his counsel concerning the preliminary hearing transcript.

I. Evidence

of Injury to

Defendant’ s Hand

The Petitioner

complain s that his attorney fa iled to offer

evidence at trial of an injury to the Petitioner’s hand. However, at the post-conviction hearing , the P etitioner r efused t o discuss t

his issue, stating, “I don’t think it’s rele vant in this Post Conviction Hearing.” The trial court therefore concluded that the Petitioner waived this issue for purposes of post-conviction review. We agree.

J. Closing Arguments

The Petitioner c ontends t hat his counsel was ineffective during closing arguments in two respec ts: He first argues that his counsel “should have a rgued the weight

of Ms. Aiken’s te st im on y, in particular with r

espect t o the Vict

im’s ge nital t rauma. ” The Pet

itioner a lso conte nds that hi s-15-

c ounsel was ineffective for failing to object to the State’s definition of “reasonable doubt” durin g closing argume nts.

A transcript of opening and closing argume nts is included in the appellate record. The recor d
s hows tha t Petitioner’s counsel did comment on Margaret Aiken’s testimony during closing argume nts. Counsel first pointed out that while examining the victim after the incident, Aiken found
no sperm. He then stated, “On the report there w as a couple of scrat ches, a s cratc h on the left clavicle and a scratch on the upper left arm. No bruises. Nothing from that examination by Dr. Akin that would indicate any br uises. No bloody trauma. No br uises.”

The record also shows that the State made the fol lowing c omments du ring cl osing ar

guments : [Counsel] has said t

hat ther e were inconsiste

ncies li ke were the lights on in the house, were the lights off. Were the y there an hour or we

re they there 30 minutes? Were they there 20 minutes? The inconsistencies and the discr epancies, ladies and gentlemen, in o rder to g

ive y ou reaso nable dou

bt need to

be mater ial. Are those materia l? We know that [the victim] and the Defendant were a t that hous e . We know that they had a se

xual encounter. We know they we re there for some period of time and then left. Is that a material discrepancy ? The issue here for you ladies and g en tlemen is whether this was a forced sexual encounter. Whether this was rape on behalf of the Defenda nt.

In its “Findings of Fact and Conclusions of Law on Petition for Post-Conviction Relief,” the trial court ma

de the fo llowing c omments regarding the Petitioner ’s conte ntion that h

is counsel should have objected to the State’s definition of “reasonable doubt” : In the instant case, Petitione r claim s Counsel should have objected to the State’s definition of “reasonable doubt” during closing argume nt. The State did not attempt to define r

easonab le doubt. R ather, t he State i llustrate d to th e ju ry that testimony variedonly

slightly as to time, and not at all as to the plac e and the occurrence of a sexual enc ounter be

tween the Petitioner

and the Victim. Furthermore, in his jury instruct ions , the Hono

rable Jame s C. Beas ley , Jr. told the jury “the Court is the proper s ou rce from which y ou are to get the law.” Ad di ti on al ly, the Honorab le Judge B easley told the jur

y, “ [s]tatement s, argu

ments, and remarks of counsel are intended to help y ou in understanding the evidence and applying the law, but they ar

e notevidence.” The jury is presumed to adhere to the judge’s instructions. State v. Brewer , 932 S.W.2d 1, 27 (T enn. Crim . App. 1996) (citi ng State v. Johnson , 762 S.W.2d 110, 116 (Tenn. 1998)). This Court concludes that the State’s reference to re asonable do ubt w as within the leeway

permitted during closing argument. Furthermore, Judge B easley’ s instructions to th e j ur y cu re d a ny potential confusion regarding the State’s c losing argument. Accordingly , Petitioner’s assertion is without merit.-16-

(Footnotes omitted).

We find no er ro r o f a ny t ype on th e p ar t o f c ou ns el du ri ng cl os in g a rg um en ts . G en er al ly, counsel are permitted great latitude during closing arguments. State v. Dooley , 29 S.W.3d 542, 552 (Tenn. Crim. App. 2000). Cou nsel in thiscase

acted within the range of competence de manded of attorne ys i n crimina

l cases d uring c losing a

rgumen ts. This issu

e is withou

t merit.

K. Appeal

The Petitioner

argues that his appellate counsel failed to “r aise all probable issues on appeal.” No testimony was offer

ed o n this issu e at the post-conviction hearing, appare ntly because the Petitioner’s appellate counsel was not present for the hea ring. The Petitioner’s testimony was thus the only evidence

presented at the post -conv icti on hea ring co ncerni ng thi s matt er. At the he aring, the Petitioner

specific ally

complained that hi s appella te attorney

failed to raise a s an issue

“the nur se being called a doctor.”

The trial court made the following findings conc erning this allegation: Petitioner’s assertion is without merit. On appeal, Tony Bray ton, of the Shel by County Public Defender’s office, repre sented Petitioner. Petitioner asserts Mr. Bray ton provided ineff

ective as sistance

because Mr. Bra yto n failed

to raise a

ll probable issues on appeal. “[T]here is no constitutional requirement that an attorney argue ev ery

issue on appeal .[”] Campbell

v. State , 904 S.W.2d 594, 596-97 (Tenn. 1995) (citi ng Jones v. Barnes , 463 U.S. 745, 750-51, 103 S.Ct. 3308, 77 L.Ed.2d 987, 992-993 (1983); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1 993)). T he issuesto raise on appeal are within appellate counsel’s “prof essiona l judg ment and sound discretion.” Id. at 597 (citations omitted). “[W]hich issues to raise on appeal can be characterized

as tactical or strategic choice s. . .” Id. at 597 (citations omitted). The issues raised b y Counsel on a ppeal ar e well wit

hin the acceptable range of compete nce dema nded of a ttorney s in crimin al case s. Evidence presen ted at the po st-co nvict ion p roceed ings does not pr eponder ate ag ainst

these findi ngs by t he trial c ourt. Ac cording ly, we find th is issue to b e without m

erit.

We conclude that the services render ed by Peti tion er’s co unsel were wel l wit hin t he range of compete nce de manded of attorney s in criminal cases. See Baxter , 523 S.W.2d at 936. Furthermore, even assuming that counsel’s performance was deficient, we are unconvinced that “but for c ounsel’s e rror, the fact finder would have had r easonable doubt regarding the [P]etitioner’s guilt.” Strickland, 466 U.S. at 695. We therefore AFFI RM the judgment of the post-conviction court.-17- ___________________________________ ROBERT W. WEDEMEYER, JUDGE