### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Apr il 22 , 20 09 Ses si on

PAUL NEIL LAURENT v . STATE O F TENNESSE E

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2003-B-1165 Mark J. F ishb urn, Jud ge

No. M2008- 01836-CCA -R3-P C - F iled Augu st 17, 2009

Petitioner, Paul Neil L aure nt, was convicted by a judge of aggr av ated kidnapping
, attempted
ag g rava ted s exual battery
, ag g ravated s exua l b at t er y , two counts of sex ual battery by an authority fig ure, and one count of attempted child neg lect for which he rec eiv ed an ef fec tive sentenc e of
sevente en y ear s. Stat e v. Paul Neil Laurent
, No. M2005-00289-CCA-R3-CD, 2006 WL 468700 (Tenn. Crim. App., at Nashville, Fe b. 27, 2006), perm. app. denied
, (Tenn. Au g. 2 1
, 2006). Petitioner filed a timely petition for post-conviction relief i n which he arg ues that he rec eived ineffe ctive assistance of counsel at trial. The post-conviction court dismiss ed the petition afte r a hear ing. After a revie w of the rec ord, we deter mine that Petitioner has failed to estab l i s h that he

rec eived ineffe ctive assistance of counsel. Acc ording ly
, the judgme nt of the post-conviction court is affirme d.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Affi rm ed.

J E R R Y L

. S M I T H , J
., delivere d the opinion of the court, in which D A V I D H. W E L L E S and R O B E R T W. W E D E M E Y E R , J J ., joined.

J ames O. Ma

rtin, I I I , Nashville, Tenne ssee, f or the a ppellant, Paul Neil L aure nt.

Robert E. Co o per, J r., Attorney Gene ral and Reporter ; Melissa Roberg e, Assistant Attorney Gene ral; Victor S. J ohnson, District Attorney Gene ral, and Rob McQuire
, Assistant Di s tr ic t A tt o r n e y G e nera l, for the a ppellee, State of

Tenne ssee.

OP INION

Petitioner was convicted in a bench trial of ag g ravated k i d n ap p ing, attempted ag g rava ted sexual battery
, ag g ravated sexual battery
, two counts of sexual battery by an authority fig ure, and one count of attempted child neg lect. Id. at *1. On appea l from his convictions and sentenc e, this Court summarized the fac ts that formed the ba sis for the convic tions as follows:At trial, A.K., testified t hat s he was the eightee n-y ear -old step-daug hter of 1 the appellant. At the time of trial, the victim was a senior in high school. The victim stated that she and the appellant had a g ood rela tionship when the appellant marrie d her mother, approximately three y ear s prior to the trial, until an episode that occur red when she was in tenth g rade

. Whil e her mother was o u t of town on business, the victim caug ht the appellant hiding in her c loset while she wa s g etting dr essed.

Severa l day s later, while her mother was still out of town, the appellant took the victim to a movie. At the mo v i e, t h e ap p ellant offe red alcohol to the victim, which she prete nded t o s ip so that the appellant would be “satisfied.” When they

arr ived home, the victim testified that there was a box of chocola te-c overe d cher ries ly ing on her bed with a pair of her underw ear wra pped around them, as well as a vase of flower s on her dresse r. The victim claimed that sh e wa s “d i s gusted” and confr on t ed t h e appellant about the items. Acc ording to the victim, the appellant confe ssed that he had seen her undress a couple of times while hiding in her closet. The victim repor

ted the incident to her

mother.

On November 24, 2002, the victim and her fourtee n-month old sister, M.L
, 2

we re h ome with the appellant while her mother was at work. She noticed that t h e appellant was watching a videotape of one of her dance perf ormanc es from school. The victim de scribed this a s “unusual.” That afte rnoon, the victim woke up from a nap and went into the kitchen to look for something to eat. S h e n o t i ced that the appellant was “messing with his pants.” At t h at p o int, the victim stated that the appellant approa ched her and s t at ed, “I ’ve been thinking about y ou and I ’m cra zy about y ou.” The victim ran for t he back door, but the appellant stepped in front of it, blocking her path. The victim then tried to run for her bedroom, but the appellant pushed her down befor e sh e co u l d reach the door. After falling to the g round, the victim stated that she “wound up” in her bedroom with the appellant. The appellant was “ on top” of he r and she kept re peating “No, [appellant], please don’ t do this.” The victim explained that she kept try ing to lock her leg s, but the appellant would use his knee to open them up. She reme mbere d that the appellant held both of her arms and pre ssed her

back a g ainst the bed. She be lieved that the a ppellant was try

ing to
rape her.

After strug g ling for a wh i l e, the appellant and the victim ended up on the floor, talking. Some t i m e d u ri ng the strug g le, the victim bit the appellant on the inside of his elbow. The victim thought the appellant stopped beca use she had asked

I t i s t h e p o l i c y o f t h i s C o u r t n o t t o i d e n t i f y t h e v i c t i m s o f s e x u a l a b u s e

. 1

M

. L i s t h e b i o l o g i c a l d a u g h t e r o f t h e a p p e l l a n t a n d A

. K

. ’ s m o t h e r , M a r i a L a u r e n t

. 2

-2-him to repe atedly

. Then, the appellant told the victim that he “wa s g oing to do this

beca use he wa s n ev er g oing to see her aga in and that he had to beca use he and her mother wer e g oing to g et a divorce .” The victim testified that the appellant also told her tha t he was doing this because she had “ tease d” him.

The victim tried to calm the appellant down, telling him that she would never tell any one what happene d. The app el l ant left t he room, and the victim proce eded
to lock her door, chang e clothes, g ather her purse toge ther (including a can of mace ) and try to g et out of her bedroo m wi n d o w. S h e could not open the window and decide d to wait i n her r oom until t he appe llant left the house to pick he r mother up from wor k.

During this time, the appellant continued to talk to the victim throug h the door. The appellant shook the door handle and was eventua lly able to open the door. As he came in the room, the victim noticed a rope- like object in his hand. The victim
spray ed the a

ppellant in the ey es wit h mace

. The appellant pushed t he victim onto the bed and g ot back on top of her, holding her fore arms and pinning them to the bed. The appellant rubbed his ey es ag ainst t h e victim’s ey es, burning them with mace

. The victim had difficulty seeing with the mace in her ey es. The pain in h er ey es lasted for approximately two hours. The appel l ant took the mace awa y , threw it down and trie d to tie the victim’s rig ht hand with a bathr obe sash.

The victim tried to kick her window out in an attempt to e scape

. The victim

wa s ab l e t o turn over onto her stomach and started to cra wl off the bed. T h e appellant g rabbe d her around the knees and pushed her over, hurting her back. The victim continued to ask the appellant to stop to which he eventua lly replied, “Oka y

. I ’m not g oing to f

uck y ou, I just want to kiss y ou down there .” The victim testified that she understood the appellant to mean that he wanted to kiss her vag ina. During this ti me, the victim pleade d with the appellant to allow he r to wash out her ey es.

I n response to the appellant’ s statements, the victim kicked off her shoes and unbuttoned her jeans. She testified that she only cooper ated with the appellant to g et him to calm down. The appellant remove d the victim’s jeans and left her underw ear

o n

. T h e appellant demande d to see the victim’s brea sts. The appellant lifte d t h e victim’s swea ter and place d his hand on her brea st. She was not wea ring a bra at the time.

After the appellant took he r pants off, he licked the victim on the outside of her u n d er we ar o n her vag ina. She testified that he licked her on the outside and inside of the vag ina. Specifica lly
, she stated that his tongue , cover ed by the materia l from her underwea r, en t er ed the inside of her vag ina. The victim testified t hat t he appellant c ontinued to lick her va g ina “like a dog licking w ater ” for

approximately
two minutes. Then, the victim g ot up and told the appellant that she neede d to wash

-3-her ey es. The appellant asked for a kiss, so the victim complied beca use she thought if she coope rate d with the appellant, she would not ge t rape d.

At that time, the victim went to her bathroom and beg an to rinse out her ey es. The appellant followed her, g rabbe d her by the buttocks and slid his hand acr oss her behind. The appellant also washe d his ey es. The victim then left her bathroom and
went to the appellant’ s bathroom. The appellant followed her and once ag ain place d his hand on her buttocks. The victim then told the appellant that she was g oing back to he r bathroom, but instea d ran out the back door of the house and down the street

wea ring only a swe ater , underw ear

and socks.

The v i ct i m ran down the street, try ing to flag down passing vehicles. She finally stopped a van containing Dorothy Ailey and her husband. The Ailey s stopped when they saw the victim r unning toward the car , waving her hands and cry ing “let

me in.” Ms. Ailey descr ibed the victim as “hy sterica l.” Ms. Ailey reme mbere d that the victim ha d no pants on at the time. The c ouple let the victim into their vehicle, wher e she g ave them her addre ss and stated “he was g oing to kill her if she didn’t g et

awa y .” Ms. Ailey let the victim use her cellular phone to call her mother. The victim told he r mother that she had been rape d. The couple drove the victim to the near by Shell station, called the police a nd waited until the police a rrived.

Hanna h Tiblier, a nurse p ra ct itioner with Metro Gene ral Hospital, testified that she perf

ormed a medical exam on the victim on November 24, 2002. The exam involved a g ener al examination of the body and more specific exam of the g enitalia. The victim told Ms. Tibli er the following :

He [t he appe l l an t] came into my room with a rope in his hand. I
spray ed him in the ey es with mace and he threw me on the bed and tried t o rub i t in my

ey es. He tied my

rig ht arm to the bed, but I g ot out of it. I bit him har d on the arm. He pulled my pants off a

nd put his head down there
, my panties wer e still on though. He touched my brea sts and he kissed me. I kept rinsi ng my ey es. The burning was unbelievable

. I finally ran out of the house and didn’t have my pants on. Iwanted out of

there

.

The victim told Ms. Tiblier that she was no t s u re if there was sexual penetr ation. During t h e ex am i n ation, Ms. Tiblier noticed a fre sh scra tch over the victim’s rig ht rib cag e as we l l as a fr es h scra tch on the back of her rig ht wrist. As part of the examination, labial swabs wer e collecte d from the victim. Additionally
, the victim’s panties wer e collecte d as evi d en ce i n order to prese rve any possible fluids located on them.

-4-After the call came in reg arding the victim, Nicole Swisher, a Serg eant with

the Metropolitan Nashville Police Depa rtment responde d to th e appellant’ s residenc e

on November 24
, 2 0 0 2

. As the office rs enter ed the house, the smell of mace was very strong

. Serg eant Swisher located a baby
, fourtee n-month-old M.K., inside the house alone, aslee p in a stroller. Once they resc ued the child, they exit ed the house to preser ve the sc ene.

Robert Carrig an, a detec tive with the Metropolitan Nashville Police Depa rtment met with the victim and her mother, Maria L aure nt, at the residenc e afte r the incident. Detec tive Carrig an noticed that the victim’s room was in disarra y and that there was a bottle of chemical spra y or mac e and a

belt from a ba

throbe on the floor. The appellant wa s not at the scene , and his ca r wa s missi ng

.

The next morning
, Detec tive Carrig an re ceive d word that the appellant was at hi s residence. W hen they arr ived, t he appellant was not prese nt. Howeve r, after

a sear ch Detec tive Carrig an and other office rs discovere d a suitcase packe d with men’s clothing in a shed be hind the house.

L ater that day , Detec tive Carrig an met Ms. L aure nt at the house wher e they found a le tter fr om the appellant on the kitche n table. The letter stated a s follows:

Dea r Maria, I ’ve never been more sorry in all my life. I should have listened to y ou and soug ht some help. I love y ou and [our daug hter] dear ly

. I am such a weak individual. I s hould have been the adult and walked awa

y

. [Victim ], I am truly sorry

. I have a hug e problem that started when I was just a kid. I have nowher e to g o and nowher e to turn to except J esus. I f t here ’s any wa y t h at this situation can be fix ed or mended, whateve r y ou say Maria, I ’ll do. I s t i l l have my beepe r with me, so y ou can rea ch me that way , if y ou want to. Please
say a pra y er f or me. All my

love, [Appellant].

Ms. L aure nt identified the handwr iting as that of the appellant. Upon direc tion from Detec tive Carrig an, Ms. L aure nt place d sever al calls to the pag er number that the appellant left in the letter. During one of those conver sations, the appellant ag ree d to meet Ms. L aure nt in the parking lot of Antioch Hig h School. Ms. L aure nt waited for the appellant at the desig nated location, but the appellant never appea red. The appellant e ventually

turned himself in to the police on D ece mber 9, 2002.

Hunter Gre ene, a DNAanaly st w ith the Tenne ssee Bur eau of I nvestig ation, testified as an expert in serolog y

. Ms. Gre ene testified that chemica l analy sis of the

-5-victim’s unde rwe ar reve aled the prese nce of alpha amy lase, a component of saliva, in conce ntrations consistent with the prese nce of saliva.

Maria L aure nt, the victim’s mother, testified that she has two other daug hters in addition to the victim. Her two y oung daug hters are biologica lly the appellant’ s. Ms. L aure nt rec alled that at s ome point after her ma rriag e to the appe llant, she and

one of her daug hters trave led to Dallas, T ex as in connec tion with her work for Americ an Airlines. S o m et i m e l ater she lear ned that while she was g one, the appellant hid in the victim’s closet and saw h er g et undresse d. The appellant

ex plained that he was play ing hide-a

nd-g o-see k and had acc identally seen h er undress. The appellant also told Ms. L aure nt t h at h e g ave the victim alcohol, chocola te and r oses in an attempt to apolog ize for hiding in he r closet.

Ms. L aure nt testified that the appellant had a particula r interest in perf

orming oral sex with her while she was wea ring underw ear

. Ms. L aure nt further stated that she had never discussed the appellant’ s desires or interests in reg ards to oral sex with the victim.

On November 24, 2002, Ms. L aure nt was at wo rk

. The appellant was supposed to pick her up when her shift was over at 7:00 p.m. Howeve r, Ms. L aure nt left work ear ly when she rec eived a telephone call from the victim. Over the course of the ne x t few da

y s, Ms. L aure nt was able to rea ch the a ppellant on his cell phone

sever al times. At least one of these c onversa tions was rec orded.

Ms. L aure nt confirme d that during sever al of these conver s ations, the appellant apolog ized for his actions and promised to g et profe ssi o n al help. The appellant told Ms. L aure nt that the victim was “tea sing” him and that he was sexually

arouse d by her. Ms. L aure nt even discovere d that the appellan t had place d a new doorknob on the victim’s bedr oom door.

After hear ing the ev i d ence, the trial court found the appellant g uilty of
ag g ravated kidnappi ng , attempted ag g rava ted sexual battery
, ag g rava ted sexual battery
, two counts of sex u al b att ery by an authority fig ure, and attempted child
neg lect. The trial court sentenc ed the appellant t o twelve y ear s for ag g ravated kidnapping
, six y ear s for attempted ag g rava ted sexual battery
, twelve y ear s fo r ag g ravated sexual battery
, five y ear s for eac h count of sexual battery by an authority fig ure, and two y ear s for attempted child neg lec t

. T h e t ri al court order ed that the
sentenc es for ag g ravated kidnappi n g, ag g ravated sexual battery
, and attempted
ag g ravated sexual battery run concur rently to eac h other. The trial court also order ed that the sentenc es for sexual battery b y an authority fig ure and attempted child
neg lect run c oncurr ently

to eac h other, but conse cutively to the char g es on the first three counts, for a

total effe ctive sente nce of sevente en y ear s.

-6-Id. at *1-5. On appea l, this Court deter mined that the trial court: (1) proper ly denied the motion for judgme nt of acquittal and motion to dismiss reg arding the char g e of ag g ravated kidnapping ; (2) the evidenc e was sufficie nt to s upport the convictions for attempted ag g ravated sexual battery and
ag g rava ted sexual battery ; and (3) the trial court pr operly sentenc ed Petitioner. Id. at *1.

Petitioner subsequently filed a petition for post-conviction relief in which he alleg ed that he

rec eived ineffe ctive ass i s t an ce o f counsel beca use, among other things: (1) trial counsel failed to proper ly i n t ervie w witnesses prior to trial; (2) trial counsel improperly waived the preliminary hear ing, deny ing Petiti oner the rig ht to confr ont the v i ctim prior to trial; (3) trial counsel failed t o put forth a theory of defe nse at trial; (4) trial counsel failed to seek mitigation at sentenc ing; (5) trial

co u n s el allowed Petitioner to make statements ag ainst interest in the prese ntence repor t; (6) trial

co unsel allowed Petitioner to submit a “Statement of Allocution” into evidenc e at the sentenc ing hear ing; (7) trial counsel reque sted a prese ntencing psy cho-se x ual evalua tion that was later u sed
ag ainst Petiti oner.

Hearing on the Post-c onviction Petition

At the hear ing on the post-conviction petitio n , t ri al counsel testified that he had been
prac ticing law for approximately eig hteen y ear s at the time of the hear ing. During that time, he spent eig ht y ear s as an Assistant United States Attorney and four y ear s as an Assistant Direc tor of the Drug I nvestig ation Division at the Tenne ssee Bur eau of I nvestig ation prior to enter ing the private prac tice of l aw in April of 2002. At t h e t i m e o f P et i tioner’s trial, trial counsel had tried one jury trial as a criminal def

ense attorney

.

Trial counsel explained that he waived the preliminary hear ing in Petitioner’s case beca use he wanted to preve nt potentially more serious char g es from being prese nted to the g rand jury

. Prior
to trial, trial counsel established a theory of defe nse for the case

. Acc ording to trial counsel, the State would be unable to e stablish each e lement of the of fense char g ed. Howeve r, trial counsel advised Petitioner to waive a

jury trial due to the fac ts surrounding the incidents. Tria l counsel wa s afr aid that the fac ts of the case would horrify a jury

. Trial counsel rec alled that Petitioner maintained that the victim “baited him.” Trial counsel fe l t t h at waiving a jury trial would take sy mpathy and emotion out of the equa tion.

Trial counsel admitted that he did not interview the State’s witnesses pri o r t o t ri al. Trial counsel reca lled one episode in which he contac ted t he victim ’s m other. The mot her was hos tile, and he deter

mined that pursuing the matter would be fruitless. As a result of his failure to interview witnesses prior to trial, trial counsel actua lly asked questions at tr ial that he did not know what the

answe r would be from the witness. Specifica lly
, trial co u n s el re m em bere d asking Ms. Ailey
, the

woman who picked up the victim in the street, if the victim mentioned that she had been rape d. Ms. Ailey answe red that the victim did not tell her that she had been rape d but told “her mother.” Trial counsel felt that even if he had known the answe r the witnesses would have g iven he probably would have still asked the que stion at trial. Trial counse l admitted that he asked Nurse Tibler a question

-7-reg arding the victim’s scra tches that he should not have asked and would n o t h av e as ked had he

interviewe d the witness prior to trial.

Trial counsel informed the trial court that he attempted to c ontact a cowor ker and friend of the vi ctim who, according to Petitioner, would have c orrobor ated his story that the vi ctim set him up. Trial counse l was unable to locate this witness.

Trial counsel rec alled that he had Petitioner prepa re an al l o cu t i o n statement prior to sentenc ing. Trial counsel felt that this was a way for Petitioner to appea r apolog etic to the trial court and wa s a wa

y to avoid rearg uing issues that had already been decided. Trial counsel encour ag ed Petitioner to be truthful beca use, in his experienc e, j u d ges l ook favor ably on defe ndants who are cooper ative and a

pologe tic.

Trial counsel reque sted a prese ntencing psy cho-se x ual evalua tion and submitt ed Petitioner’s work history as a mitigating fac tor to the trial court. Tr ial counsel c hose not to call Petitioner as a witness at the sentenc ing h ea ri ng based on his previously inflammatory statements reg arding the victim. Fur

ther, tri al co unsel did not fee l that Petitioner would perf orm well during crossexamination.

The post-conviction court took the matter under advisement at the conclusion of the hear ing. I n an order
, the post-conviction court found Petitioner’s alleg ations to be without me r it

. Sp ecif ically
, the post-conviction court deter mined that trial counsel g ave rea sonable advice to Petitioner in waiving the preliminary hear ing beca use the defe nse was focuse d on an application of the law rathe r than the fa cts. Fur

ther, the post-c onviction court found that trial counsel had acc ess t o the State’s file t hroug h discovery

. The post-conviction court also conclude d th at trial counsel did not rende r ineffe ctive assistance with reg ard to his cross-e x amination of witnesses Ms. Ailey and Nurse Tibler
at t rial. The post-conviction court determi n ed that rape was not an is sue and the comments made by the nurse wer e not prejudicia l beca use the victim’s testimony also established the element of bodily injury

.
Next, the pos t-conviction court deter mined that even if Petitioner’s work history had been somehow verifie d at the sentenc ing hear ing, it would not have made a differ ence

. The work history indicated that Petitioner h ad b ee n em ploy ed for less than t en y ear s even though he was forty -four
y ear s old at the time of the hea ring

. Finally
, the post-conviction court found that trial counsel’s actions with reg ard to the psy chosexual examination wer e require d by Tenne ssee Code Annotated section 39-13-705, and thus could not be considere d ineffe ctive assistanc e of counsel. Additionally
, it wa s not ine ffe ctive assistance of counse l for trial c ounsel to encour ag e Petitioner to be truthful in a pr esente nce r eport.

Petitioner filed a timely notice of appea l challeng ing the post-conviction court’s dismiss al of the pe tition for post-conviction relief

.

-8-Analysis Post-conv iction Standard of Review

The post-conviction court’s finding s of fac t are co nclusive on appea l unless the evidenc e preponde rate s otherwise. See State v. Burns
, 6 S.W .3d 453, 461 (Tenn. 1999). During our revie w of the issues raised, we will aff ord those finding s of fac t the weig ht of a jury verdic t, and this Court is bound by the post-conviction court’s finding s unless the evidenc e in the rec ord p re p o n d erates ag ainst those finding s. See Henley v. State
, 960 S.W .2d 572, 578 (Tenn. 1997); Alley v. State
, 958 S.W .2d 138, 147 (Tenn. Crim. App. 1997). This Court may not rew eig h or re- evalua te the evidenc e, nor subs titute its infere nces for t hose drawn by the pos t-conviction court. See State v. Honeycutt
, 54 S.W .3d 762, 766 (Tenn. 2001). Howeve r, the post-convic tion court’s conclusions of law are revie wed under a purely de novo standard with no presumption of corr ectne ss. See Shields v. State
, 40 S.W .3d 450, 458 (Tenn. 2001)

. Ineffec tive Assistance of Counsel

When a petition er s eeks post-conviction relief on the basis of ineffe ctive assistance of counsel, the petitioner bear s the burden of showing that (a) the service s rende red by trial counsel

wer e defic ient and (b) that the defic ient perf ormanc e was p re

j u dicial. See Powers v. State
, 942 S.W .2d 551, 558 (Tenn. Crim. App. 1996). I n o rder to demonstrate defic ient perf ormanc e, the petitioner must show that the service s rende red or the advice g iven was below “the rang e of competenc e demande d of attorney s in criminal case s.” Baxter v. Rose
, 523 S.W .2d 930, 936 (Tenn. 1975). I n order to demonstrate prejud i ce , the petitioner must show that there is a rea sonable
p robabili ty that, but for counsel’s defic ient perf ormanc e, the result of the proce eding wo u l d h av e been differ ent. See Strickland v. W ashington
, 466 U.S. 668, 694 (1984). “B eca use a petitioner must establish both prong s of the test to preva il on a claim of ineffe ctive assistance of counsel, failure to prove either deficient performanc e or resulting prejudice provi d es a s u fficie nt basis to deny relief on the claim.” Henley

v. State , 960 S.W .2d 572, 580 (Tenn. 1997)

.

As noted above, this Court will aff ord the p o s t-conviction court’s fac tual finding s a presumption of correc tness, rende ring them conclusive on appea l unless the record prep o n d era tes ag ainst the court’s finding s. See id. at 578. Howeve r, our supreme court has “dete rmined that issues of defic ient perf

ormanc e by counsel and possible prejudice to the defe nse are mix ed questions of law and fac t

. . . ; th u s , [ ap p el l at e] revie w of [t hese issues] is de novo” with no presumption of

corr ectne ss. Burns , 6 S.W .3d at 461.

Fur thermore , on claims of inef fec tive assistance of counsel, the petitioner is not entitled to the bene fit of hindsight. See A dkins v. State
, 911 S.W .2d 334, 347 (Tenn. 1994) . This Court may
not second- g uess a rea sonably -base d trial strateg y , and we cannot g rant relief based on a sound, but

unsucce ssful, tactica l de cision made during the course of the proce eding s. See id. Howeve r, such defe renc e to the tactica l decisions o f counsel applies only if counsel makes those decisions afte r adequate prepa

ration for t h e ca s e. See Cooper v. State
, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992).

-9-Inve stigati on Prior to T

rial

Petitioner claims that trial counsel failed to conduct independe nt pretria l investigation of the State’s witnesses. Petitioner cla ims that thi s failure resulted in inef fec tive assistance of counse l. The State c ontends that trial counse l’s pretria l investiga tion was sufficie nt.

The proof at the post-conviction hear ing established that trial counsel failed to interview the State’s witnesses prior to tr ial. Admittedly
, it is unwise for any criminal defe nse attorney not to at least make an eff

ort to have potential witnesses interviewe d even if the witnesses are uncooper ative. Howeve r, trial counsel testified tha t he had acc ess to the State’s files throug h discovery
, including all police repor

ts, state ments of witnesses, and the medical evidenc e. I n addition, Petitioner failed
to establish at the post-conviction hear ing just how the failure to interview witnesses cre ated a

rea sonable probability that had counsel conducte d the interviews, the results of his trial would have been differ ent. He has not established actua l prejudice and there fore is not entitled to a finding that counsel wa s ineffe ctive in fa iling to interviewwitnesses. This issue is without merit.

Cross-examination of W

itnesses

Petitioner complains that trial counsel examined witnesses without knowing how they would respond and that this was prejudicia l to his defe nse. Specifica lly
, Petitioner alleg es that his lack of
prepa ration prior to trial led to additional evidenc e being introduced about bodily injury suffe red by the victim, an essential element of the off en s es o f ag g ravated sexual battery and attempted
ag g rava ted sexual battery

. The State alleg es that Petitioner failed to show he was prejudice d by trial counsel’s a ctions.

At trial, trial counse l q u es t i o n ed Ms. Ailey
, the person who resc ued the victim from the street. Tr ial counsel a sked if the victim c laimed that she was rape d. Ms. A iley responde d that the victim told “her mother” that she was rape d. Next, trial counsel asked Nurse Tibler if the victim’s

scra tches appea

red to be rec ent. She res p o nded aff irmatively and informed trial counsel that the victim’s ey es wer e red and she continuously rubbed them. Petitioner was not char g ed with rape at trial. I n other words, this was not an issue that could have aff ecte d Petitioner’s convictions. Fur ther, the victim he rself testified that Petitioner held her down and attempted to tie her down and rubbed

mace in her ey es. The v ic ti m’s testimony alone would have been sufficie nt to establish bodily injury

. Petitioner has fa iled to show that he wa s prejudice d by trial counsel’ s actions.

Sentenc ing

Next, Petitioner claims that he rec eived ineffe ctive assistance of counsel at sent en cing. Specifica lly
, Petitioner claims that trial counsel’s decision to encour ag e Petitioner to submit an allocution statement and pa rticipate in a

psy cho-se x ual eva luation coupled with the fa ilure of tria l counsel to elicit testimony reg arding Petitioner’s work history led to the imposit ion of consec utive
sentenc es by the trial court. The State contends that the post-conviction court proper ly deter mined that Petitioner did not rece ive ineff ective a ssistance of c ounsel.

-10-Wit h reg ard to the psy cho-se x ual evalua tion it is difficult to see how counsel can be

ineffe ctive when such an evalua tion is require d for the pre- sentenc e repor t of all sex offe nders. See T.C.A. § 39-13-705( b). Fur ther, the post-conviction cour t found that encour ag ing Petitioner to be truthful and prese nt an allocation at the sentenc ing hear ing in an eff ort to establish his remorse was a reasonable strateg y

. We ag ree and note ag ain t hat t his court may not second gue ss a reasonable strateg ic dec ision on the part of the tria l counsel eve n if the strate g y was unsucc essful.

Finally
, Petitioner seems to complain that the trial co u rt re l ied on a rec ord of extensive criminal history in order ing consec utive sentenc es when in fac t Petitioner had no prior convictions. There is no evidenc e in the rec ord to support this all ega t i o n

. Moreove r, this Court has alre ady upheld the sentenc ing deter mination on direc t appea l. Paul Neil Laurent
, 2006 WL 468700, at *14.

I n summary , Petitioner has failed to car ry his burden of proof that he re ce i ved ineffe ctive assistance of counse l at trail.

Conclusion

For the fore g oing r easons, the judg ment of the post-c onviction court is aff irmed.

___________________________________ J ERRY L . SMI TH, JUDGE

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