# FILED
March 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1998 SESSION

WILLIAM E. BEARD, ) ) No. 02-C-01-9611-CR-0 0405 APPELLANT, )

) Shelby County v. ) ) Chris Craft, Jud ge STATE OF TENNESSEE, ) ) (Post- Convic tion Rel ief) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Mark A. Mesler John Knox Walkup Attorney at Law Attorney General & Repor ter 200 Jefferson Avenue, Suite 1250 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37243-0493 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Daniel S. Byer Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED: ________________________
AFFIRMED Joe B. Jones, Pre siding Judge 

### O P I N I O N2 The appellant, Willi am E. Beard ( petitioner) , appeals as of right from a judgmentof the trial court dismissinghis post-conviction action following an ev identiary hearing. The trial court found the petitioner had received the effective assistance of counsel guaranteed bythe United States and Tennessee Cons titutions. In this court , the petitioner contends the evidence contained in the record preponderate s against the fin dings of the trial court in two particulars: (

a) trial counsel “failed to prepare, develop and discuss a trial stra tegy with him,” and (b) “trial coun sel’s efforts at trial failed t o employ any strate gythat did exist.” After a thorough review

of the record, the br ief s submitted by the parties , and the law governingthe issues presented for review, it is the opinion of this court that thejudgment of the trial court should be affirmed.



### I. PRIOR PROCEEDINGS The petitioner was conv icted of an attempt to rape a child, a Class B felony. The trial court imposed a Range I sent ence consistingof confinement for twelve (12) years in the Department of Correction. This court affirmed the petitioner ’s conviction and

sentence. State v. William E. Beard , Shelby County No. 02-C-01-9

407-CR-00146, 1995 WL 454019 (Tenn. Crim. App., Jackson, Aug ust 2, 1995). The supreme court denied the petitioner’s application for permission to appeal onNovember 27, 1995, concurring only in the result reached by this court. The petitioner

instituted this post-conviction action on April 18, 1996. Counsel was appointed to represent the petitioner.An amended petition was filed onJune 6, 1996. The trial court conducted an ev identiary hearing

on August 8, 1996. The trial court’s findings of fact and conclusions of law w ere filed on October 7, 1996. The petitioner subsequently perfected his appeal to this cour t.3 

### II. STANDA RD OF REVIEW When the trial court has conduc ted an evidentiary hear ing to permit a petitioner to ventilatethe grounds raised in suppor t of an action for

post-conviction relief, the trial court’s findings of fact are afforded the weight of a jury verdic t. Dixon v. State , 934 S.W.2d 69, 71-72 (Tenn. Crim. App . 1996); Teague v. State , 772 S.W.2d 932, 933- 34 (Tenn. Cri m. App. 1988), cert

. denie d , 493 U .S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (198 9). Conseque ntly, this court is bound by the trial court’s findings of fact unless the evidence adduced at the hearing preponderates against the trial cour

t’s findings. Butler

v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim.App. 1994), per . app . denied (Tenn. 1995). There are several well -estab lishe d rules which gov ern appellate review

in postconviction cases. Asthis court said in Black v. State , 794 S.W.2d 752, 755 (Tenn. Cr im. App.), per . app . denied (Tenn. 1990):

First, this Court cannot rew eigh or reevaluate the

evidence; nor can we substitute our inferenc es for those drawn by the trial judge. S econd, questions concerning the credibility of the witnesses, the weight andvalue to be given their tes timony, and the factual issues raised by the evidence are resolv ed by the tr ial judge, not this Cour t. Third, the appellant ha s th e burden in this Court of illustrating why the evidence contained in the record preponderates agai nst the judgment entered by the trial judge.
This court will now

proceed to consider the merits of the pe titi oner’s contentions. In doing so, this court wil l apply the aforementioned prin ciples governing appellate review to determine whether the evidence add uced at the hearing preponderat es against the trial court’s findings of fact. See Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert
. denied , 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).4 

### III. STANDA RDS TO BE APPL IED IN DETERMINING WHETHER COUNSEL RENDERED EFFECTIVE ASSISTANCE
When the petitioner seeks to v itiate a conviction on th e groun d the attorney who represented him denied his constitutional r ightto the effective assistance of couns el, the petitioner

must establish by clear and convinci ng e vidence (a) the services r endered or advice given by counsel fell below “the r ang e of competence demanded of attorneys in criminal cases,” Ba xter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and (b) the unprofessional conduct of counsel enured to the pr ejud ice of th e petitioner. Willi ams v. State , 599 S.W.2d 276, 279 (Tenn. Crim. App.), per . app . denied ( Tenn. 1980). The United States Supreme Court subsequ ently adopted this two- prong test in Str ickland v

. Washington , 466 U.S. 668, 10 4 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The Tennessee decisions foll owing Strickland are legion. This court’s review

is guided by certai n well-established s tandards. First, the standard created in Baxter does not require perfect representation. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Second, it is not the function of an appellate court to “s econd guess” trial counsel’s tactical and strategic choices pertaining to matters of defe nse unless these choices were made without knowledge of the relevant facts or the law applicable to the issue. Hellard , 629 S.W.2d at 9; McBee v. State , 655 S.W.2d 191, 193 (Tenn. Crim

. App.), per . app . denied (Tenn. 1983); see People v. Corona , 80 Cal. App. 3d 684, 145 Cal. Rptr. 894 (1978). As the supreme cour t said in Hellard : “[ T]he defense attorney’s representation, when questioned, is not to be measured by ‘20-20 hin dsight.’” 629 S.W.2d at 9. Third, an accused is not deprived of the effective assistance of counsel because a different procedure or strategy might have produced a different result. Williams , 599 S.W.2d at 279-80; Long v. State , 510 S.W.2d 83, 88 (Tenn. Crim. App .), cert
. d enied (Tenn. 1974).5 

### IV. GROUNDS FOR RELIEF The petition e r contend s he was den ied his co nstituti onal right to the ef fective assistance of counsel. He argues his trial co unsel “failed to prepare, develop and discuss
a trial strategy w

ith him,” and counsel “failed to employ any strategy” during

the course of the trial. The evidence reflects the petit ioner developed a conflict with an assistant public defender who wa s rep resenting him. The assistant public defender was permit ted to withdraw as counsel of record. The trial court appointed a private attorne y to represent the petitioner. The assistant public defender pr ovided counsel with a copy of his file. The file included a copy of the applicable statute, documents filed in the case , i nterviews with witnesses, a transcript of the prelimin a ry hearing, and other matters pertaining to the petitioner’s case. Couns el testified it was a co mplete file. Counsel reviewed the file, v isited the situs of the cri me, and discussed the facts with the petitioner. The petitioner ha d a copy of the statute. According to counsel, the pe titione r

was vividly

aware of what the state w as required to prove before he could be found guilty of attempting to rape achild. The petitioner advised counsel his conduct did not rise to the level of an att empt to commit this crime. This formed the nu cle us of his defense. The petitioner and counsel disc ussed a trial strategy. The preliminary hearing testimony

of the youthful victim implied there was no sexual contact between the victim and the petitioner. Since the victim was the key to the prosecution’s case, they formulated a strategy to discredit the vic tim’s testimony. They also discussed whe ther t he petitioner should te stify in su pport of his defe nse. The petition er opted not to tes tify. Couns el filed a bevy of motions, and the petitioner filed pro se motions. These motions were not heard prior to trial. According to the petitioner, he wanted a pretrial hearing on a motion for discovery and on a motion to suppress his statement to the police. The record reflects discov ery had been obtained by the assistant public defender. In addition, counsel had a co py of the state’ s file. Counsel testified he di d not believe a hearing on the discovery moti on was required gi ven the circumstances

in this case. The6

onlysurprise was the tes ti mony of a c rime scene officer. A diagram of the crime scene was introduced through this witness. Defense counsel had visited the situs o

f the crime, he was able to inspect the diagram, and he knew the di agram was accurate. Cou nsel did not believe a hearing on the motion to suppress the petitioner’s statementwas required. The petitioner told police that he had hit a dog with his ve hicle and he was looking for it . The child had followed him i nto the woods. The petitioner refused to give any further statement to the police unless a lawyer was present. Thus, counsel was of the opinion there w as nothing to s uppr ess. The petitioner failed to establish a reason why the motion would be granted. The petitioner s tated the officer said he was not questioning the petitioner. The petitioner said a hearing was necessary because the officer said he was not questioning him, but the petitio ner co ntended the officer did ask him questions. The petitioner complains counsel did not ask enough questions during crossexamina tion of the state’s witnesses.He testified his counsel as ked a total of sixteen questions during the entire trial. Counsel testified the victim waseleven years of age. Her direct testimony was “a little fuzzy and a little uncertain,” and she was “very hesitant and very tentative.” In other words, he r testim ony was “sketchy.” Counsel concluded the v ictim was not a “gr

eat witness.” There wasvery little v

ariation between the vi ctim’s testimony during the preliminary hearing and her tr ial testimony. Counsel did not feel there was any way to effectively cross-examine

the witness. He discus sed this problem with th e petitioner. The defendant agreed counsel should be gentle with the youthful vi ctim, at tempt to accent the “soft spots” in her testimony, and v igorously argue the credibility of the w itness during summation. Counsel ga ve the defendant the opportunity to hav e input in the trial decis ions. It appears counsel conferred with the petiti oner regarding additional questions he w anted to askeach witness, as well a s his feelings regarding other deci sions which surfaced during the trial. The petitioner did not disag ree with counsel’s ta ctics duringthe course of the trial. Cross-examination of the state’s witnesses was the only strategy av ailable to trial counsel. The petitioner could not produc e a witness who coul d refute th e victim’s7

testimo ny, and the petitioner opted not to testify. If counsel rigorously cross-examined the victim, th e jurors m ay have been angered at his tactics. In additi on, the victim was not a “great”witness, and her testimony was “sketchy.” A rigorous cross-exam ination may have caused the victim to remember additional f acts rega rding the crime in qu estion. In summary, the trial str

ategy utilized by

counsel was entirely

reasonable.


### CONCLUSION In conclusion, the petitioner failed to establish t he all egations contained in his amended petition by clear and c onvincing evidence

. Tenn. Code Ann. § 40-30-210(f). The trial court accredited the testi monypresented by the State of Tennessee and rejected the petitioner’s testimony. Moreover, the evidence contained in the record does not preponderate against the findings of fact made by the trial court. Clenny , 576 S.W.2d at 14. Thus, the judgment of the trial court should be affirmed.

____________________ ______________

__ _ JOE B. JONES, PRESID ING JUDGE
CONCUR:

_____________________________________ JOHN H. PEAY, JU DGE

_____________________________________ THOMAS T. WOODALL, JUDGE