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

Briefs S eptem

ber 18, 200 2

MICHAEL A. MADDOX v. ST ATE OF TENNES SEE

Direct Appeal from the Circuit Court for Marshall County

No. 14759 Charles Lee, Judge

No. M2002-00282-CCA-R3-PC - Filed October 16, 2002

The Petitioner was found guilty by a jur y of five counts of sexual battery by an authority fig

ure, a Class C felony, an d two co unts of aggravated sexual battery , a Class B felony . The trial court sentenced the Petitio ner to an

effec tive sixtee

n-y ear ter m. This Cour

t affirmed the Petitioner’s conviction and sentence on direct appeal. The Petitioner then f iled a petition for post-conviction relief
, which the

post-con viction c ourt deni ed. The Pe titioner n ow appea

ls the den

ial of post

conviction relief, arguing that his counsel at tria l was ineffective. Finding no error, we affir m the judgment of the post-conviction court.

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined.

Andrew J. Dearing , II

I, As sist ant Public Defender, She lbyville, Tennessee, f or the appellant, Michael A. Ma ddox.

Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; William Michael McCown, District Attorney General; and

Weakley E. B arnard, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

I. FACTS

The following facts were summarized by our Court on direct appeal.

The v ictim of the offen ses was b orn Dec ember 6, 1985, and is the [Petiti oner’s] adopteddaught

er. She te sti fied at tr

ial that on certain day s in 1998 and 1999 as indicated in the indictments, while she was living at home with the [Petitioner], he fondled her or caused her to fondle him. On various occasions the [Petitioner] fondled the victim ’s brea sts, touched her va gina, r ubbed his p enis ag ainst

her vagina,-2-

and/or ejaculated on or near

her. The victim did n ot resist

or tell anyone because the [Petitioner] had previously threa tened to kill her

and her family. The victim’s mother testified that the [Petitioner], her husband, often made wild and irrational accusations of infide lity against her. Those ac cusation s were f requent ly c oupled with threa

ts to ki ll her , the children, and himself. This type of irrational behavior continued for at least two (2) yea

rs prior to the tim e the parties separated in January 1999. At the sentencing hearing Dr. John W. Lancaster testified that the def endant suffered from Acognitive disorders and immaturity

. . . . Statev. Michael Anthony Maddox , No. M2000-00193-CCA-R3-CD, 200 0 Tenn. Crim. App. LEXIS 764, at **2-3 (Tenn. Crim. App., Jackson, Sept. 22, 2000) (footnote omitted).

The following evidence was presented a t the hearing on the petition for post-conviction relief: The Pe

titio ner, Micha

el A. Madd ox, testified that he gave counsel a list of witnesses that he thought would be helpful in his trial. The Petitioner claimed that counsel failed t o interview or subpoena any of the wit

nesses th at t

h e Petitioner suggested to him. He testified that one of the witnesses whom he sugg ested wa s “a well known business man a

nd relia ble witne ss” named B illy Cook. Accord

ing to the Petitioner, Cook would have testified that on at least two of the occasions that the sexual abuse allegedly occurred, the Petitioner was working for Cook. The Petiti oner als o claimedthat Cook w ould have testifie d that the

Peti tioner “was ille gally arrested . . . without a warrant in divorce court.” The Petitioner testified that Cook was his bondsman and that when he calledCook in this case, “they didn’t have no bond yet beca

use there wasn’t no warrant there.” He testified that on another occasion, Cook went to “bond [the Petitioner] out and they said [the Petitioner] needed to just sit in jail a little bit.”

The Petitioner

testifie d that it wa s possible that on one

of the oc casions t

hat an offe nse allege dly occurred, he

was working “day

labor” i n Murfre esboro. He stated that he g ave counsel a

name and an a ddress of his employ

er, but c oun sel did not follow-up. The Petitioner also claimed that he asked coun sel to interview Detective Sam Bragg regarding the Petitioner’s ar rest while he

was in divorce court. He stated that Sheriff Helton was also present when he was arrested a nd that Helton la ter told him that the a

rrest wa s made wit

hout a wa rrant.

The Petitioner testified that during the trial proceedings, he requested that counsel interview all of the Sta

te’s witn esses. H e stated that he pr

ovided co unsel with

spe cific questions to ask the witn es ses. The Petitioner testified that counsel should have questioned the victim regarding an occasion “where she said that [the Petitioner] had sent [his] son outside to take out the garbage. Got her to undress or something which there is no way that could happe n. [His] son would have been right back in.” The Petitioner

stated tha

t he “wa s only

alone wit h [the victim] and [his] son maybe five or ten time s becaus e [he] alw ays work ed.” The Petitioner testified that counsel should have askedthe victim

about herdescription of the trailer and the location of windows in the bedroom where the abuse occurred.

The Petitioner testified that counsel should have questioned the vi ctim concer ning h er age when the abuse began. According to the Petitioner , the vict imtestified that the abuse began when-3-

she was five

ye ars old, but she could not expla in how she

was able to relate that particular

age to the advent of the abuse. The Petitioner stated that counsel should have questioned the victim concerning whether he r mother or

the prosecutor told

her to sa y th at she wa s five y

ears old when the abuse began.

The Petitioner testified that he directed counsel to ask the Petitioner’s former wife, Tammy Madd ox, certain questions at trial. However, thePetitioner claimed that counsel “didn’t ask not even half of what [he] told him to ask . . . .” He stated tha t counsel should hav e asked T ammy Maddox if prior to the allegations in this case, the Petitioner had caught her ha ving an affair. The Petitioner also testifie d that cou

nsel shoul d have asked his ex-wife if the allegations arose after she found

out that the Petitioner was getting a gra nt fromthe Red Cross because he had been “hit in a flood.” The Petitioner state d that couns el fai led to quest ion h im abo ut tak ing and passing a lie dete ctor test in Alaba ma. He further testified that he requested that counse l file a motion to suppress a g enera l sessions arrest warrant, but the issue “was never even brought up.”

The Petitioner stated that, prior to tr ial, he called counsel “two or three times” to set up meeting s, but counse

l told him meetin gs wer

e “not ne cessar

y.” He testif ied that, prior to tr

ial, he met with counsel twice for thirty minutes and once for an hour. The Petitioner recalled tha t at the first meeti ng, he and counsel discussed “court procedure s and everything .” He stated that at the second meeti ng, he informed counsel of the witnesses whom he thought should be examined at trial. The P etitioner testified that at the third meeting, they discussed “how the trial would go and who the y would be calling up and

everything .” The Peti tion er clai med th at cou nsel “ did n ot fol low t hrough withwho he said he was going to call and all.” He testif ied that he spent a

total of a pproximate

ly two hours with counsel prior to trial.

On cross-examination, the Petitioner acknowledged that a person can be arre sted witho

ut a warrant where th ere is re asonable

cause. He testifi ed that B illy Cook would have testified that the Petitioner’s wife had bee n unf aithful. The Petitioner stated that he had been arrested twe nty-nine times. He claimed that he gave counsel the information about his alleged alibi witnesses on several occasions.

The Petitioner

testifie d that cou

nsel shoul d have ask

ed the victim if

the Petitioner taught her “to be a virgin until she got married” and if the Petitioner taught

her that she was a lway s “to be f

ully dressedwhen she

comes out

of the sho wer to never let her dad or mom or brother see her naked or unclothed.” The Petitioner statedthat counsel should have asked thevictim if her mothe r had told her to say any thing tha t was not tr

ue. The Pe

titioner t estified that coun sel shoul d have asked the victim about specific parts of her testimony , including testimony concer ning a w indow in

the back bedroom which the Petitioner claimed did not exist and te st im on y concerning a pink rag that the Petitioner allegedly used during one of the incidents. The Petiti oner tes tified tha t the victim should have been cross-examined about her testimony

that her mother a nd brothe r were o utside pla yin g ball during one of

the incidents of abuse. The Petiti oner mai ntained t hat it wastoo muddy

to play ball in November, December or January

.-4-

The Pe titione r stated t

hat his ten -y ear-ol d son should have be en calle d to testif y a t trial. However, the Petitioner

admitted that he never requested that counsel c all the Pe

titioner’ s son as a witness. He also testified that counsel should have questioned Dr. John W. Lanca ster about how an evaluation of the Petitioner could only ta ke thirty minutes.

The Petitioner stated that counsel should ha ve qu estioned Tammy Maddox about her motivation to prosecute the Petitioner. He maintained that Ms. Maddox had been cheating on him. The Petitioner admitted that he did not know how Ms. Maddox would respond to the accusation that sh e had cheated on her husband, but he “would have like[d] to have heard her a nswer.” Th e Petitioner acknowledged that he testified abou t his wife’s alleged infidelities. The Petitioner testified that counsel also should have questioned Ms. Maddox about allegations that she made threats to hav e
a forme r husb and arr ested if he d id no t sign over custody of their childre

n. However, the Petitioner admitted that he could not prove that she had ever made such allega tions. In addition, the Petitioner testified that counsel should have questioned Ms. Maddox regarding whe ther she had e ver had sexua l relations with the victim. He claimed t hat he ca ught his former wife and the victim having sexual relations.

The Petitioner testified that he received approximately ten or fifteen thousand dollars from the Red Cross as the result of a flood, but Ms. Maddox did not get any of that money. The

Petitioner admitted that the Red Cross did not investigate the flood until after he was charg ed in this case. However, he maintained that the flood money provided Ms. Maddox w ith motivat ion to have

him prosecuted.

The Petitioner

claimed that no medical evidence was presented to support the State’s c ase. The Petitioner

testified regarding a letter that he wrote to counsel. The letter contains information from the Petitioner that he deemed releva nt to his defense, but he admi tted that h

e probab ly w

rote the let te r a ft er he wa s c on vi ct ed in th is ca se . T he Pe ti ti on er co ul d n ot id en ti fy a ny evidenc e presented at trial that was obtained as the result of his alleg ed illegal arrest.

Detective Samuel Bragg of the Marshall County Sheriff’s De partment testified that he was the chief investigator

in the Petitioner’s case. He stated that he arrested the Petitioner for agg ravated child sexual battery on Marc

h 19, 1999. Bragg testified that the a rrest occurred in the chancer y room of th e M ar sh al l C ou nt y co ur th ou se ap pr ox im at el y fo rt y- five minut es to an ho

ur afte r an arr est warrant was issued.

Bragg testified that he knows Billy Cook “very well.” He testified that Cook is a bondsman in Marshall County and that Cook also owns a pawn shop. B ragg stated that he spoke to Cook on three or four occasions. According to B ragg, Cook would not have been a ble to f urnish th e Petitioner with an alibi.

On cross-examination, Bragg testified that he had a n arrest warrant in his pocket when he arrested the Petitioner. He stated that he gave a copy of the warrant to the Petitioner thirty minutes
to an hour

a fter the arrest. Brag g testified that he had explained the crimes with which he was-5-

charged to the Petitioner

and that he read the Petitioner his rights after they arrived at the Sheriff’s De pa rtment. He st at ed th at an of fe ns e d at e o n t he wa rr an t w as la te r a me nd ed an d a pp ro ve d b y a general sessions judge. Bragg

testified that

h e “would imagine” that any reason for a delay

in the Petitioner getting a copy

of the arrest warrant wa s cau sed by time neede d to set the bond. He testified that he usually holds onto a warrant until he finishes his arrest report, and then he forwards it to the “booking room.”

The Petitioner’s trial counsel testified that he had been licensed to practice law in Tennessee for twenty ye ars. Coun sel testif

ied that he had re

present ed perso ns in gen

eral se ssion s, criminal
courts and circuit courts in Tennessee. He testified that prior to this case , he had tried a hundred or
more cases in

front of juries. Counsel sta

ted that o ne-half

to two-thi

rds of his practic e was cr

iminal. Counsel estimated that he had worked on twen ty to twenty -five sexual offense cases where he represented the accused.

Counsel testified that he first became involved with this case when the Petitioner visited him

on the day bef

ore he was arraig

ned in cir cuit court. Counsel stated that he was not involved with the Petitioner’s representation in general sessions court. He testified he represented the Petitioner betwee n his arr aignme nt in April

1999 until his trial in August 1999. Counsel maintained that he was prepared for trial and that he c ould not recall anything surprising in the State’s case.

Counsel testified that he met with Petitioner on the day of the arraignment, on the day of the plea, and at least a couple of addition al times at counsel’s office. He estimated that he spent approxima

tely five or six hours with the Petitioner prior to trial. Counsel stated that he was satisfied that he had gathered the information that he neededfrom the Petitioner to represent him. According
to counsel, the Petitioner provided him with the names of several potential witnesses, including that of Billy Cook. Counsel

testified that

the P etit ioner told him ab out C ook du ring th eir fi rst m eetin g, butthat the Petitioner

did not sug gest

that Cook could provide the Petitioner with an alibi. He stated that the Petitioner also suggested that the Petitioner’s father c ould testify regardi ng a lie detector test that the Petitioner took

in Alabama. Counsel testifiedthat the Petitioner did not inform him of any other potential witnesses.

Counsel testifie d that the

results of a polygraph

test are not a dmissibl e in the courts of the Stateof Tennessee. He also noted that the poly graph test that the Petitioner wantedadmitted i nto evidence was administered because the Petitioner had been accused of molesting

another child in Alabama. He explained

that he di d not introduce that information because he did not want to “open the door” to t

he prior charg es in

Alabama . Counsel e

xplained th at the Sta

te had filed a pretrial notice seeking to introduce evidenceof the polyg raph, but counsel successfully f ought to keep it out. He testi fied th at he to ld th e P et it io ne r t ha t i t w as no t i n h is be st in te re st to ha ve th e p ol yg rap h information introduc ed at tria l. Counsel stated that the Petitioner mentioned that the victim had been examined in Alabama, and no physical evidenc e of abuse was found. Regarding both the polygra

ph and evidence from the victim’s medical exam, counsel stated, “I tried to explain to [the Petitioner] that we didn’t want the jury to even know about the ordeal in Alabama.”1 Our Kids is a nonprofit cl inic that provides medical and psychological services for children who may have
exp erienc ed p hysical o r sexua l abuse or ne glect.

-6- Counsel testified that the Petitioner told him that Billy Cook could testify regarding the Petitioner’s arrest. He stated that he explained to the Petitioner “that the grand jury had indicted

him. That any problems in the g eneral sessions court were cured by that unle ss as a re sult of some sort of illegal arrest the police got evidence, that could be suppressible, but of cour se that didn’t happen.” Counsel testified that he was not aware of any evidence that was obtained as a result of the Petitioner’s arrest that could have been suppressed. He explained thatthe Petitioner did not give a
statemen t, and no evidence was collected from the Petitioner. Counsel stated that he had discussed withthe Petitioner the possibility of using the information about the

wrong d ate bein g on the

arrest warrant to show the

jury that may

be th e mo ther of the victim had given some inconsistent
st at em en ts . H ow ev er , B ra gg’ s t es ti mo ny a bo ut th e a rr es t w ar ra nt un de rm in ed th at st ra te gy.

Counsel testifie d that the

first time he heard that

the Petitioner wanted to use Cook as an alibi witness was when he received a letter from the Petitioner after his conviction. He stated that the letter was mark

ed “rec eived” i n his offic e in Octob er 1999. Counsel a lso stated tha t he had no knowledge of potential alibi witnesses in Murfreesboro until he received the letter.

Counsel testified that

in addition to talking to the Petitioner, he also filed a discovery motion, obtained discovery fr

om the State, discussed t he case with the Sta

te, discu ssed the c ase with Detective Bragg, and re

viewed the chancery

court docket of the Petitioner’s divorce. He testified th at h e obtaine d report s of the vi ctim’s me dical exa m and a re

port fro m “Our Ki ds” 1 Clinic in Nashvi lle. Counsel acknowledged that he spent a signific ant amount of time on the investigation during whi ch he interviewed the Pe titioner, interviewed Detective Brag g, and reviewed the discovery materia ls.

Regarding the Petitio ner’s assertion that he had attempted to make appointment s with counse l butwas refused, counsel

testified that his secretary makes all his appointments. He also stated that the Petitioner

had moved

as a res ult o f a flo od, and counsel did not have the Petitioner’s new address

. Counsel testifi e d that he tried to contact the Petitioner, but was unsuccessful. Counsel reported that he contracted with the Petitioner to represent him, but he never received any pay ments from the Petitioner. Counsel opined that the lack of pay

ment might explain the Petitioner’s failure
to contact counsel. Counsel testified that being a ble to spe ak to the Pe

titioner m ight hav e helped

in preparing the Petitioner to testify , but that was doubtful.

Counsel acknowledged that he did not ask

the victim

if the Peti tioner ta ught he r to be a virgin

or if the Petitioner told her

not to be unclothed around other people. However, he sta ted that he did ask the victim if the Petitioner taught her that if any one touched her in an inappropriate manner, she should she report it. He believed that the victim answered aff irmatively.

Counsel testified that he did not ask the victim’s mother if she “put [the victim] up to this.” He maintained that it is strategically unsound to

ask such a question outright because the witness can-7-

simply deny it. He stated that the better a pproach is to try to use questions that would make the jury th ink that is what happened. Regarding the Petitioner’ s comments concerning the window in the Petitioner ’s bedroom , counsel recalled that the victim testified that during one of the a lleged inciden ts of abuse, she had seen her brother play ing outside through a window in the Petitioner’ s bedroom. Counsel testified that he was able to impeach this testimony throu gh the victim’s mother. He stated that the victim’s mother testified that it was impossible to see anyone in the back ya

rd from the roomwhere the victim claimed to be during the incident. The Petitioner also testified that the victim could not have

seen the backy ard fro m that bed

room.

Counsel testified that he di d not spec ifically ask the vi ctim

about a pink rag allegedly used during at least one of the incidents of abuse. Counsel stated, What I did

cross examine her about the rag was in her te stimony she is telling what [the Petitioner] is suppose dly doing, w hat he is doing with

his left hand, and what he is doing with his right hand, and she basically ran out of hands or at

least tha t was my take on i t, what I was try ing to get across to the jury so then I am asking her

now where was th is rag? Then also later there was some testimony about where [the Petitioner] put the rag that didn’t seem consistent with [the victim’s] testimony about the p ositi oning

of he r and [the Pe titio ner]. Counsel recalled that “there was a lot of talk about the rag and cross examination about the rag.”

Counsel testified that it is generally “badpractic e” to ask

a witness a question to which the attorney does not kn ow the an swer. Cou nsel did not recall asking any

questions about the condition of the gro und ne ar the P etit ioner ’s hom e and wh ether i t was m uddy. As t o the v icti m’s age when the abuse began, counsel

stated that testimony about the abuse be ginning when the victim was five yearsold ca me out only at t he sen tenci ng heari ng. Counsel testified that he asked the victim how she remembered

that s he was five or six when the abuse began, but she wa s unable to give a “satisfactory

answer.”

Counsel testified that during jury selection, the Petitioner “sort of loudly announced that one of the prospec tive juror s had bee n having an affa ir with his wife.” He

testifie d that the

strateg y in this case was not that the charges were brought because the wife was cheatingon him but because the Petitioner wanted visitation with the children. Coun sel testified that the Petitioner did not receive his “flood money ” until after being indicted.

Counsel testified that

the Petitio ner told h

im that he p

retende d to go to work one day , went back to h is house, looked through the bathroom window, and saw his wife eng aged in s exua l relations with the victim. He stated that he did not q

uestion the Petitione

r about th e alleg ed abuse by the victim ’s mother

because he did not believe it helped the Petitioner’s cause and because the stories “weren’t terribly

believable.” However, he tes t if ie d t ha t t he Pe ti ti on er “s po nt an eo us ly” voluntee red the i nformati on during the trial

.

On cross-examination, counsel testified that he spent between four and six hours with the Petitioner prior to trial. He maintained that he continued to work on the case eve n though he did

not-8-

hear from the Petitioner for a period of time. Counsel testified that he believed that he received phone calls at his office from the Petitioner and that h e spoke with the Petitioner on the phone. Counsel acknowl edged

that he did not speak to the witnesses suggested to him by the Petitioner because he did not believe that they c ould provide any re levant evidence. Counsel testified that he didnot do eve

rything tha

t the Petiti o ner sug gest ed based on strategical rea sons or the rules of evidence.

II. AN ALYS IS

The Petiti oner argues that his trial counsel was ineff ective. Specifically , the Petitioner argues that counsel failed to interview certain witnesses as reque sted by the Petitioner , failed

to adequa

tely cross-examine the State ’s witnes ses, and failed to file a motion to sup

press. I n order t o obtain po stconviction relief, a petitioner must show thathis or her convicti on or sent

ence is v oid or void able because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving factual alleg ations in the petition for post-conviction relief by clear and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s factual finding s are subject to

a de novo review by this Court; howeve r, we mus t a ccord these factual findings a pr esumption of

correctness, which is ov ercome only when a pr

eponder ance of the evide nce is co ntrary

to the postconviction court’s factual findings. Fields v. State , 40 S.W .3d 450, 45 6 (Tenn. 2001). A p ostconviction court’s conclusions of law are su bj ec t t o a pu re ly de novo review by this Court, with no presum pt ion of correctness. Id. at 457. The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed question of law and fact an d, as such , is s ubject to de

novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

The right of a criminally accused to representation is guar a nteed by

both the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 9 30, 936 (T enn. 1975 ). This ri ght to re present ation inc ludes th e right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffective assistanc e of coun sel, this Co urt must determine whether the advice given or services rendered by the attorney ar

e within the range

of compe tence de manded of

attorne ys i n crimina

l cases. Baxter
, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner
must show that “counsel ’s r epresentation fell below an objective standard of r easonableness,” Strickland v. Washi ngton , 466 U.S. 668, 688 (1984), and that this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a petitioner must show a re asonable probabil ity that, but for counsel’s unreasonable error, the fact finder would have had re ason able doubtregarding

the petitioner’s guilt. Strickland , 466 U.S. at 695 . This rea sonable p robabilit y mu st be “sufficient to undermine confidence in the outcome.” Id. at 694; see a lso Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994).

When evaluat

ing an ineffec tive ass i stanc e of cou nsel c laim , the r eview ing cou rt sho uld j udge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; Statev. Mitchell , 753 S.W.2d 148, 1 49 (Tenn . Crim.-9-

App. 1988). The rev iewing court must evaluate the questionable conduct from the attorney ’s perspective at

the time. Strickland , 466 U.S. a t 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 pre sumption that counsel’s conduct falls within the wide range of

reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemedto 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).

We conclude that

the Petitioner has failed to show that counsel’s representation fell below the range of competence of attorney s in criminal cases. The post-conviction court noted that there is no magic length of time that trial counsel should spend on a

case be cause e ach cas e is diffe rent. T he trial court accredited the testimony of counsel with regard to how much time he spent on the

case and found that such amount of time was “enough.” The post-conviction court pointed out that

none of the witne ss es whom the Petitioner claimed could offer him an alibi were pre sent at the hearin g. However, it noted that the State pre s ented a witness who testified that even if one of the potential alibi witnesses had been called, the testimony would not have been helpful.

The court stated that the State presented evidence explaining how counsel presented the case and the theory that counse l developed. According to the court, counsel explained

why he did not a sk

some of the questions that were requested by the Petitioner and why

he phras ed some qu estions in certain ways. The post-c onviction court noted that many of the questions asked by counse l at trial “covered the same ground” as those r equeste d by

the Petitio ner but w ere “pe rhaps mor

e artfu lly posed.” The cour

t acknow ledged

that some o f the que stions that counsel c

hose not to

ask would have opened a door “through which the State would drive their Mac k truck by implicating the [Petitioner] in allegations of a similar nature in a different state at a diffe rent time.”

The post-con

viction c ourt foun d that cou nsel “wa s prepared to present the case” and that counsel “presented

the case under the best theory that he had.” The court stated, “The decisions which [counsel] made concerning the method and manner of que stioning the witnesses were all trial tactics that the Court will

not at this time second guess.” In de nying the pe

tition, the court found that counsel’s “trial pr

eparat ion as well as pr esentation exceeded those expected under the minimum standards” set forth by

case law.

The evidence does not preponderate ag ainst the findings of the trial court. Although the Petitioner argue d that cou

nsel shoul d have c alled ce rtain witn esses to te stify , he did no t presen t those witnesses at the post-co n viction hearing. Thus, no evidence was pre sented, other than the Petitioner’s own statements, that the suggested witnesses would have h elpe d his case. Regarding the cross-examination of the State’s witnesses, the Petitioner fa iled to show how his suggested questions would have aided his case. Counsel testified that he did not use many of the Petitioner’s questions because they

would not have been helpful and because the r ules o f evidence would not permit such qu estions. I

t is clear from the record that the questions that counsel chose to ask the State’s witnesses were part of his strategy and that counsel’s questionscertain ly w ere mor

e “artf ully posed” than t hose sug gested by the Petitioner. Finally, the Petitioner fa iled to show that counsel-10-

erred by not fil ing a motion to suppress. The Petitioner was unable to identify any evidenc e that should have been suppressed. He did not give a statement to police, and no evidence was taken fr om him by p olice as a result

of the arrest. The

Petitioner

has not sho wn that co

unsel wa s ineffe ctive in his representation. Moreover, even assuming that the Petitioner received

inadequate representation, we fail to see how the Petitioner was prejudiced in this case.

Accordingly , the judgment of the post-conviction court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE