IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2011

WALTER ALAN MARTIN v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Shelby County

No. 04-05112 Carolyn Wade Blackett, Judge

No. W2010-01609-CCA-R3-PC - Filed August 9, 2011

The Petitioner, Walter Alan Martin, was convicted by a jury of rape and was, thereafter,

sentenced to ten years in prison at 100%. This Court affirmed the Petitioner’s conviction and

sentence on direct appeal. The Petitioner filed a timely petition for post-conviction relief

and, following an evidentiary hearing, the post-conviction court denied relief. On appeal,

the Petitioner argues that he received the ineffective assistance of counsel due to trial

counsel’s failure (1) to adequately address the timeframe surrounding the events and (2) to

fully investigate the case by inspecting the cab of the truck where the incident occurred.

Following our review of the record and the parties’ briefs, we conclude that the Petitioner

has not shown that he is entitled to relief. The judgment of the post-conviction court is

affirmed.

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

DAVID H. WELLES, SP.J., delivered the opinion of the Court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ, joined.

Joseph Ozment, for the appellant, Walter Alan Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Brooks Yelverton, Assistant

District Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

Following a jury trial in February 2006, the Petitioner was convicted of rape. See

Tenn. Code Ann. § 39-13-503. Thereafter, the trial court imposed a sentence of ten years at

100% in the Department of Correction. See State v. Walter Martin, No. W2006-01148-CCAR3-CD, 2007 WL 3005356, at *1 (Tenn. Crim. App., Jackson, Oct. 16, 2007), perm. to

appeal denied, (Tenn. Apr. 7, 2008). On direct appeal, this Court summarized the facts

established at trial as follows:

The victim, Riitta-Maija Lehtinen, a United States citizen originally

from Finland, testified that on June 14, 2004, she was in Lexington, Kentucky

working as an airplane pilot for Shuttle America, which flies passenger aircraft

for U.S. Airways Express. As she prepared to pilot a flight from Lexington to

Pittsburgh, she received a telephone call at approximately 7:30 p.m. from a

“state trooper in Kodiak, Alaska” who informed her that her boyfriend of

seven years, also a pilot, had died in an airplane crash. After consulting her

supervisor, she was released from her duties and allowed to leave.

Ms. Lehtinen wanted to go to her home in Memphis immediately, so

she could then travel to Alaska where her boyfriend had died. Initially, she

tried to find a flight, but none would get her home that night. Then, she tried

to rent a car, but no car was available. She also decided against taking a bus

because it would have been too slow. At that point, she decided to hitchhike

to Memphis. She explained that she had hitchhiked once before in Finland but

had not ever hitchhiked in the United States.

First, she briefly “caught [a] ride” with someone in a car who took her

to the “Kentucky Parkway.” Then, she was picked up by a truck driver who

introduced himself as “Rattlesnake.” Rattlesnake drove her to Union City,

Tennessee. Before he dropped her off, Rattlesnake inquired over his

commercial band radio whether another truck driver was going toward

Memphis, and a truck driver who called himself “Indy” responded

affirmatively. Ms. Lehtinen testified that this man, who was the [Petitioner],

then picked her up and drove her from Union City to Memphis.

She said that after approximately two and a half or three hours, they had

arrived in Memphis and were driving “down on Highway 51,” when the

[Petitioner] said he needed to use the bathroom and pulled the

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eighteen-wheeler truck into a shopping center. Ms. Lehtinen expected him to

get out of the truck and relieve himself, but he did not. Rather, according to

Ms. Lehtinen, he put a knife to her throat and told her he wanted to have sex

with her. She did not see the knife but felt it against her throat. She began to

cry and asked him repeatedly “how he could do this to her” because he knew

someone very dear to her had died.

Ms. Lehtinen testified that the [Petitioner] physically lifted her into a

bed in the back of the cab of the truck and again insisted that he wanted to

have sex with her. She pleaded with him; he said he was going to hurt her; and

he did “hurt [her] face.” She was scared and “[f]elt really bad” and confused

about what was happening. He lifted up her T-shirt and her bra and “started

to suck and lick [her] breast.” Then, he pulled down her pants and underwear

and “started to lick [her] vagina.”

Ms. Lehtinen stated that she did not attempt to fight. She “didn’t see

any point in fighting” because “he’s a man. He-has more strength than I do

and if I would start to fight maybe for sure he’s going to kill me or I mean, I

didn’t see any point to it.” She did not scream because she did not see anyone

at the shopping center and did not “see any point in that either.” Ms. Lehtinen

testified that it was “around” 3:00 a.m. when these events were taking place

and that they were in a shopping center near Highway 51 in Shelby County.

She testified that the [Petitioner] “put his fingers into [her] vagina,” and

then he “penetrated with his penis.” She stated that his penis was inside her

vagina for “about three minutes” and that he ejaculated while his penis was

inside her.

Afterward, the [Petitioner] got back into the driver’s seat and drove her

to a place near the Memphis airport. Ms. Lehtinen testified that it took

“probably 10, 15 minutes” to drive from the shopping center where the

incident occurred to this location near the airport. She got out of the truck, and

he “said he was sorry” and left. Ms. Lehtinen then called 9-1-1. Twenty

minutes later, a police officer picked her up near the intersection of I-240 and

Airways Boulevard.

The policeman drove her to the “Rape Crisis Center” in Memphis where

she told a nurse what had happened to her. The nurse had her take off her

clothes and conducted a thorough examination. The examination took about

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twenty minutes. Then, she was driven to her car, which was parked in the

employee parking lot at the airport, and she went home.

Officer Thomas E. Woods of the Memphis Police Department testified

that, after being dispatched at approximately 3:45 a.m., he retrieved Ms.

Lehtinen from the shoulder of I-240 near Airways Boulevard. According to

Officer Woods, she was “distressed” and told him that she had been

hitchhiking and was raped by a truck driver in a shopping center off Highway

51 in Memphis. After consulting with his Lieutenant, Officer Woods took Ms.

Lehtinen to the Memphis Rape Crisis Center.

Julie Atkeison, a nurse from the Memphis Sexual Assault Resource

Center, testified that she conducted “a full physical exam” of Ms. Lehtinen the

morning after the incident. Atkeison stated that Ms. Lehtinen “was very

upset” and that she “was just crying during the whole time that we were

talking.” Atkeison did not observe any bruising or any other injury after

conducting a speculum exam. Asked whether the absence of injury was

medically significant in a rape case, Atkeison explained that “[i]t can be. She

is a . . . mature female. She can have babies. So her hymen stretches to allow

passage of a baby. So not finding an injury is not significant in someone who

is in the age range of 16 to 45 in those child bearing years.” Atkeison also

testified that it is “very common not to find injuries” in rape victims.

Atkeison swabbed her breasts and vaginal area for evidence and sent

the swabs to the Tennessee Bureau of Investigation. The [Petitioner]

stipulated at trial that the bureau’s DNA analysis revealed that his saliva was

present on both her breasts and that his spermatozoa and saliva were present

inside her vagina.

Ms. Lehtinen also testified that “[a] few days” after the medical

examination, she described the man who raped her, as well as the numbers and

markings on his truck, to Sergeant Daniel Parris of the Memphis Police

Department. Subsequently, she viewed a “photo spread” and positively

identified the [Petitioner] as her rapist. Ms. Lehtinen again identified him in

the courtroom.

Ms. Lehtinen further testified that she had bruising on her arm that was

sustained when the [Petitioner] lifted her from the front seat into the bed inside

the cab of the truck and that she did not want to have sex with the [Petitioner].

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On cross-examination, Ms. Lehtinen testified that she was in the truck

with the [Petitioner] for “about two and a half, three hours” from the time he

picked her up in Union City until he pulled into the shopping center. She later

returned to the shopping center with Sergeant Parris. She remembered green

lights in the shopping center, but when she returned there, she identified the

place because it had green paint. She did not know where the county line was

on Highway 51. Ms. Lehtinen explained how she recognized the location of

the incident when she returned there with Sergeant Parris, saying that “[i]t

looked exactly the same, the buildings, the setup, everything.” She confirmed

that she was “sure” of the location.

Sergeant Daniel Parris, of the Memphis Police Department’s Sex Crime

Unit, testified that he was the officer in charge of Ms. Lehtinen’s case.

Sergeant Parris stated that he met with Ms. Lehtinen “a day or so” after the

incident and that she described “some landmarks of where she thought [the

rape] had happened.” After she gave a statement, Ms. Lehtinen led Sergeant

Parris to the location where she was raped. He testified that it was in the

parking lot of a Kroger grocery store near the intersection of “Thomas and

Whitney,” and he confirmed that this shopping center was in Shelby County.

He also stated that a Mapco Express gas station in the parking lot had green

lights.

The [Petitioner] testified that at the time of the incident he lived in

Elgin, Oklahoma and was working as a truck driver for Ryan’s Trucking. On

the day in question, he was on his way from Union City, Tennessee to

Houston, Texas when he met Ms. Lehtinen. After a call came out over his

“CB radio” asking whether “somebody was heading towards Memphis that

could give somebody a ride,” he answered saying that he “had no problem

giving them a ride.” At that time, he was introduced to Ms. Lehtinen and told

that she needed to get to Memphis so that she could then go to Alaska where

“a friend had an accident.” The [Petitioner] testified that once they began

driving toward Memphis, they discussed their lives with each other and

conversed about how their jobs were similar.

According to the [Petitioner], approximately one hour after they set out

from Union City, they stopped just south of Dyersburg when Ms. Lehtinen

“abruptly asked if [he] wanted oral sex,” and he said, “okay.” She reached

over and started “undoing” his pants and then performed oral sex on him as he

drove. The [Petitioner] described the ensuing events as follows:

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A few minutes later I come [sic] to a stop light and she looks up

and tells me she wants to have intercourse. So I’m like trying to

figure out-I’m looking around trying to figure out a place so I

can pull over to stop so I can oblige her.

I see a place across the street right in front of a

McDonald’s. So I'm waiting on the light to change so I start

shifting gears, but in the meantime, once I see a place to park I

tell her to get in the back and get ready and she does.

He said that while she undressed herself, he parked on the shoulder of

the road in front of the McDonald’s restaurant, and then he undressed and had

sex with her in the “sleeper” portion of the cab of the truck. The “incident”

took “anywhere from 20 to 35 minutes,” and then he realized that he “was

falling a little bit behind schedule,” so he got dressed and started driving again.

He stated that Ms. Lehtinen stayed in bed and that they did not speak again

until they arrived at the Memphis city limits about an hour and a half later.

He testified that he did not have a knife in the cab of his truck and that

he did not threaten to harm her or strike her. He did not find out there was “a

problem” until July 24 or 25 when Sergeant Parris contacted the owner of

Ryan’s Trucking. He then “went on the internet” and discovered that there

was a warrant out for his arrest and later turned himself in to local authorities.

On cross-examination, he denied ever performing oral sex on Ms.

Lehtinen despite the fact that the laboratory report from the Tennessee Bureau

of Investigation stated that his saliva was recovered from her vagina. He

confirmed that he frequently had chance sexual encounters like the one he

described and maintained that the sex with Ms. Lehtinen was consensual.

Id. at *1-4 (footnote omitted). Our supreme court denied the Petitioner’s application for

permission to appeal on April 7, 2008.

The Petitioner then filed a pro se petition for post-conviction relief on February 3,

2009. Counsel was appointed to represent the Petitioner, and an amended petition was filed

thereafter. The Petitioner argued that he was denied the effective assistance of counsel at

trial. Specifically, he claimed that trial counsel (1) failed to meet with him enough to prepare

a defense; (2) failed to present pertinent evidence; (3) failed to properly prepare for trial; (4)

failed to request a change in venue; (4) failed to fully investigate the case; and (5) failed to

adequately explain the sentence the Petitioner was facing if convicted.

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A hearing was held in the post-conviction court, at which only trial counsel and the

Petitioner testified. Trial counsel, who had primarily practiced criminal law for over forty

years, testified that his office began representing the Petitioner following his indictment in

2004. Counsel acknowledged that Gary Bartlett signed the “court jacket” in August 2004

and that there may have been some initial confusion about which attorney in his firm was

going to handle the case. After discussing the case with the other lawyers in his firm, trial

counsel took over representing the Petitioner. The Petitioner’s trial took place in February

2006, and trial counsel appealed the Petitioner’s conviction and sentence for no extra charge.

Trial counsel believed he was fully prepared for the Petitioner’s trial and allowed the

Petitioner to be involved in his defense.

When asked how many times he met with the Petitioner, trial counsel estimated at

least five or six times before trial and, as it got closer to trial, he spent “a large amount of

time in the jail going over [the Petitioner’s] testimony and reviewing where this was alleged

to have happened, how it happened, whatever.” Trial counsel also stated that he spent a lot

of time talking with the Petitioner’s mother. According to trial counsel, the Petitioner

insisted that he never threatened the victim or cut her with a knife and that the sex was

consensual. Trial counsel stated that he did not hire an investigator to assist with the

Petitioner’s case as he saw no need for one.

Because the defense was consent, the only two people who could testify about the

issue directly were the Petitioner and the victim. Moreover, impeachment of the victim’s

testimony was critical to the Petitioner’s defense. Trial counsel tried to reach the victim

before trial but was unsuccessful. Trial counsel stated that his strategy “was to make this

lady look somewhat like a lady of the evening, hopping rides and whatever, just going from

one location to another.” He stated, “It certainly looked and sounded suspicious that here is

this lady that is supposedly a pilot, or whatever and gets in a truck to get to Memphis.” Trial

counsel opined that his strategy was somewhat successful, as the jury did not find the

Petitioner guilty of aggravated rape, only rape, indicating that they did not believe the

victim’s testimony that a knife was involved.

Trial counsel confirmed that he raised the issue of venue in the trial court, trying to

show that the incident did not occur where the victim said it did, a gas station in Frayser.

Trial counsel believed that it was only about 80 miles from Union City to Memphis traveling

on Highway 51; however, the victim stated that it took well over two hours before they

arrived in Memphis. He brought this discrepancy to the court’s attention in his venue

argument. However, the trial court, and this Court on appeal, found that venue was

established by a preponderance of the evidence.

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Trial counsel stated that he was aware that truckers kept “log books”; however, he did

not see how it would have helped the Petitioner’s defense as they did not dispute that he

picked her up in Union City. He also did not see how the credit card receipt from the Union

City gas station would have been helpful to the Petitioner’s case. Trial counsel stated that

the Petitioner never gave him any information concerning “Rattlesnake’s” identity or how

he could get in touch with him.

Trial counsel testified that he told the Petitioner not to talk about the victim’s

gratuitous act of oral sex during his testimony unless he was asked about it by the

prosecution. Trial counsel opined that the story was “a little far-fetched[,]” and he did not

think it would have helped the Petitioner’s defense as it did not have any bearing on whether

the sex was consensual. Despite trial counsel’s advice, it took the Petitioner roughly three

minutes before he brought it up in front of the jury.

Regarding the Petitioner’s sentencing exposure, trial counsel informed the Petitioner

of the sentence he faced if convicted as charged. According to trial counsel, the Petitioner

was not interested in accepting any plea deal because he maintained that the encounter was

consensual.

The Petitioner then testified that, prior to his first court appearance, his family hired

trial counsel’s firm to represent him. According to the Petitioner, no one showed up at his

initial court date in August 2004, and the case was put off for two more weeks. According

to the Petitioner, Gary Bartlett did not appear in court until his second court appearance and,

thereafter, the Petitioner dealt with another attorney from the firm. The Petitioner testified

that he did not see trial counsel until the end of 2005. The Petitioner later acknowledged that

Gary Bartlett signed the “court jacket” on August 30, 2004.

The Petitioner alleged that the truck “log books” and the Union City credit card

receipt were important to establish the timeframe for these events and were relevant to venue

and other issues. He claimed that he told someone with trial counsel’s firm of the “log

books” and the name of the company where the other truck driver worked. Furthermore, he

believed these items of evidence would have been helpful in impeaching the victim’s

credibility about the time and location of their initial meeting and in locating the other truck

driver. The Petitioner testified that it took between “two and a quarter hours, to two and a

half” to drive from Union City to Memphis, which he admitted was consistent with the

victim’s testimony. His dispute was with the initial time he picked the victim up at the gas

station in Union City: “when I picked her up was an hour difference than what she stated in

the report.” The Petitioner also wanted trial counsel to find the other driver to see if they also

had sex.

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The Petitioner testified that his truck, where the incident occurred, was available for

inspection in Oklahoma, but that no one from trial counsel’s firm ever went to see the truck.

He believed that, if they had looked at the truck, then they would have seen that it was

impossible to physically lift someone into the bed of the truck cab.

According to the Petitioner, “Hawk-eye investigation” was hired to investigate his

case. He believed the investigator tried to talk with the victim at some location in Cordova.

The Petitioner also testified that trial counsel failed to hire an expert to challenge the DNA

evidence; he then conceded that there was no real argument that the DNA was not his.

When asked about his meetings with trial counsel, the Petitioner stated that trial

counsel came to visit him between two and five times, “but he only asked, exactly, do you

know what you’re going to say.” Trial counsel then went to talk with other clients in the jail.

According to the Petitioner, he never discussed his “full testimony” with trial counsel or

whether or not he would even take the stand to testify. However, trial counsel was informed

that the act was consensual, and the Petitioner acknowledged that trial counsel pursued this

defense at trial. The Petitioner testified that trial counsel never told him not to discuss the

oral sex act in front of the jury. The Petitioner stated that he had tried to fire the previous

lawyer from trial counsel’s firm, but that trial counsel came to him and stated, “I’ll represent

you better.”

The Petitioner confirmed that he declined the plea offer made before trial because he

did not commit the offense. According to the Petitioner, at one point, there was an offer for

“time served[.]”

After hearing the evidence presented, the post-conviction court denied relief by

written order dated June 28, 2010. This timely appeal followed.

Analysis

On appeal, the Petitioner contends that trial counsel failed to provide the effective

assistance of counsel guaranteed him by the United States and Tennessee constitutions at

trial. Specifically, he argues that he received the ineffective assistance of counsel due to trial

counsel’s failure (1) to adequately address the timeframe surrounding the events and (2) to

fully investigate the case by inspecting the cab of the truck where the incident occurred.

1

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional right.

 He has abandoned his other claims for relief on appeal.

1

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Tenn. Code Ann. § 40-30-103. To sustain a petition for post-conviction relief, a petitioner

must prove his or her factual allegations by clear and convincing evidence at an evidentiary

hearing. See Tenn. Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn.

1999). Upon review, this Court will not reweigh or re-evaluate the evidence below; all

questions concerning the credibility of witnesses, the weight and value to be given their

testimony, and the factual issues raised by the evidence are to be resolved by the postconviction judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,

960 S.W.2d 572, 578-79 (Tenn. 1997). The post-conviction judge’s findings of fact on a

petition for post-conviction relief are afforded the weight of a jury verdict and are conclusive

on appeal unless the evidence preponderates against those findings. See Momon, 18 S.W.3d

at 156; Henley, 960 S.W.2d at 578.

The Sixth Amendment to the United States Constitution and article I, section 9 of the

Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). Both the United States Supreme Court and the Tennessee Supreme Court have

recognized that the right to such representation includes the right to “reasonably effective”

assistance, that is, within the range of competence demanded of attorneys in criminal cases.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523

S.W.2d at 936.

A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is

comprised of two components: deficient performance by the defendant’s lawyer and actual

prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d

at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these

components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6

S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient

basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6

S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

In evaluating a lawyer’s performance, the reviewing court uses an objective standard

of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing

court must be highly deferential to counsel’s choices “and should indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should

not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,

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see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be

judged in light of all the facts and circumstances as of the time they were made, see

Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

A trial court’s determination of an ineffective assistance of counsel claim presents a

mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

This Court reviews the trial court’s findings of fact with regard to the effectiveness of

counsel under a de novo standard, accompanied with a presumption that those findings are

correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s

conclusions of law—such as whether counsel’s performance was deficient or whether that

deficiency was prejudicial—are reviewed under a purely de novo standard, with no

presumption of correctness given to the trial court’s conclusions.” Id. (emphasisin original).

First, the Petitioner challenges trial counsel’s effectiveness about addressing the

timeframe surrounding the events:

[The Petitioner] testified at his post-conviction hearing that trial counsel . . .,

never challenged the time frame of how long it takes to drive from Union City

to Memphis and that essentially if trial counsel had done so it would have been

clear that venue was improper in Shelby County. . . . Clearly the [P]etitioner

was prejudiced by counsel’s failure to properly challenge venue.

Trial counsel testified that he raised the issue of venue in the trial court. Trial counsel

was aware that it was around 80 miles from Union City to Memphis traveling on Highway

51 and that the victim stated it took well over two hours before they arrived in Memphis.

According to trial counsel, he brought this discrepancy to the attention of the trial court, and

he was almost successful with his venue argument. However, the trial court ultimately

determined that the State had established venue by a preponderance of the evidence.

In conjunction with this argument, the Petitioner testified that trial counsel should

have reviewed his truck “log books,” which would have supported his timeframe of the

events, further impeaching the victim’s testimony, and leading trial counsel to find

“Rattlesnake,” the other truck driver. However, the Petitioner failed to introduce these books

or present “Rattlesnake” at the post-conviction hearing. We can not speculate on how this

evidence might have affected the outcome of the Petitioner’s trial. See Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990).

Moreover, trial counsel testified that he believed he was prepared for trial and that he

did not see how the “log books” would have been helpful to the Petitioner because he did not

dispute picking the victim up in Union City. Also, according to trial counsel, the Petitioner

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failed to provide him with any information concerning “Rattlesnake’s” identity or how he

could get in touch with him. Finally, trial counsel pursed the venue issue on appeal, and this

Court determined that the evidence was sufficient to establish venue:

The victim testified that the rape occurred in a shopping center beside

Highway 51 after she and the [Petitioner] had driven for over two and a half

hours from Union City and arrived in Memphis. Officer Woods testified that,

on the morning of the incident, Ms. Lehtinen informed him that the rape

occurred in Memphis. Sergeant Parris testified that he accompanied Ms.

Lehtinen to the location of the offense and confirmed that it was in Shelby

County. Notwithstanding the [Petitioner’s] testimony to the contrary—which

the jury did not accredit—we conclude that the cumulative testimony of Ms.

Lehtinen, Officer Woods, and Sergeant Parris established venue by a

preponderance of the evidence.

Martin, 2007 WL 3005356, at *5 (footnote and citations omitted). We agree with the postconviction court that the Petitioner has failed to show ineffective assistance of counsel in this

regard.

As to his second ground of ineffectiveness, the Petitioner claims that trial counsel

failed to conduct an adequate investigation into the facts of the case:

The [Petitioner] also testified that it was relevant to his defense that the

truck be examined to show that there was not enough room for him to lift the

victim within the cab of the truck. . . . Had [trial counsel] investigated the size

of the cab of the truck he could have further impeached the victim’s testimony

[,] which would have resulted in a complete acquittal of all charges. . . . As

such, the [P]etitioner was clearly prejudiced by counsel’s failure to visit or

investigate the crime scene for the purpose of further impeaching the victim’s

tale of events.

Trial counsel testified that he tried to find the victim prior to trial in order to interview

her but that he was unsuccessful. He did not dispute that he did not inspect the truck. At

trial, the victim testified that the Petitioner “physically lifted her into a bed in the back of the

cab of the truck” where he raped her, but the Petitioner claimed that the sex was consensual.

Martin, 2007 WL 3005356, at *1-4. The Petitioner testified at the post-conviction hearing

that, if trial counsel had inspected the truck, then he would have discovered that it was

physically impossible to lift someone into the truck cab. However, the Petitioner did not

present any evidence at the hearing about the dimensions of the truck or why it was

physically impossible to lift someone inside the truck cab. Again, we will not guess as to

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what evidence further investigation may have uncovered. See Black, 794 S.W.2d 752.

Moreover, the jury obviously accredited the testimony of the victim over that of the Petitioner

at trial. The Petitioner has not shown deficiency or prejudice. Accordingly, the Petitioner

has failed to demonstrate ineffective assistance as to this issue.

The record supports the finding of the post-conviction court that the Petitioner

received the effective assistance of counsel at trial. We conclude that the Petitioner

established neither deficient representation by counsel nor prejudice from the shortcomings

that he alleged.

Conclusion

The Petitioner has failed to show that did not receive the effective assistance of

counsel at trial. The Shelby County Criminal Court’s denial of post-conviction relief is

affirmed.

_________________________________

DAVID H. WELLES, SPECIAL JUDGE

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