# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1998

ROB ERT J. BUR TON , SR., ) C.C.A. NO. 02C01-9807- CC-00226 ) Appe llant, ) ) WEAKLEY COUNTY V. ) ) ) HON. WI LLIA M B. AC REE, J UDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT : FOR THE APPELLEE : KEN T F. GE ARIN JOHN KNOX WALKUP 317 South Lindel l Street Attorney General& Reporter P.O. Box 169 Martin, TN 38237 ELIZABE TH T. RY AN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 THOMAS A. THOMAS Distri ct Attor ney General JAMES T . CA NNON Assistant Distri ct Attor ney General 414 South Fourth P.O. Box 218 Union City, TN 37281

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petitioner, Robe rt J. Burton , Sr., appe als the ord er of the W eakley C ounty Circu it Court dismissi ng his pe tition for p ost-co nviction relief. In th is app eal, Petiti oner argues that his trial cou nsel was ineffec tive. After a careful r eview of t he record, w e affirm the judgm ent of the tria l court.

On September 8, 1994, Pet itioner was convicted of one count of rape and one count of incest . Petit ioner was sentenc ed as a Rang e I Stand ard Offe nder to concurrent

sentences of t

welve (12) years for

the rape convict ion and six (6) years forthe incest

convicti on. Petit ioner appeale d the convicti ons and this Court affirmed both the conv ictions an d the sen tences
. See State v. Robe rt J. Burton, Sr. , C.C. A. No. 02C01-9507-CC-00193, Weakley County ( Tenn. Cri m. App., Jackson, June 10, 1996). Petiti oner file d a pro se petition for post-conviction re lief and the trial court subs eque ntly appointed counselto represent him at the hear ing. On May 18, 1998, the trialcourt enter

ed an orderdenying Petitioner’s petition for p ost-con viction relief, findingthat he di d receive t he effective a ss istanc e of co unse l. In this ap peal, Petiti oner again contends that he did not receive the effecti ve assistance of counsel in that his trial cou nsel fa iled to in vestiga te and prepa re his c ase. S pecif ical ly, he contends that his counse l failed to interview t he victim, the school guidance
couns elor, the victim ’s schoo l friends, an d other p ossible a libi witnesse s.

The pertine nt facts as set forth in this Court’s previous opini on are as follows: On the afternoon o f Friday, March 25 , 1994, [Petitioner] invi ted his thi rteen-year -old daughter

S.B. to accompany him to his work

shop. Once t h ere, S.B. as sisted [Petitioner] in the repai r ofan air con ditioner. After s ome-3- period of

time, [Peti tioner

] approa ched S.B., pulle d down her shorts an d underwear, and pushedher back onto a couch. [Petition er] then unbu ttoned and u nzipp ed his pants, kneeled down o n top of S .B., a nd vagina lly penetrated her. Hav ing ejacu lated, [Pe titioner] return ed to his work o n the a ir cond itio ner. After ten or f ifteen minutes, [P eti tioner]and S.B. lef t the workshop together and returned home. On the foll owing Th ursday , S.B. told Sherry Page, her school guidance counsel or, about t he incident
. At the behest of Ms. Page, S. B. then tol d hermother. Ms. Page contacted the Departmentof Human Servicesand asked the agenc y to investiga te S.B.’s cl aim. The Departmentof Human Services i ntervi ewed S.B. on the foll owing Monday and arranged for

Dr. Susan Brewer, a pediatri cian, to examine her for si gns of sexual abu se. Dur ing the examination, S.B. aga in re counted the details of the incident. The p hysica l exam ination revea led tha t S.B.’s hymenal opening was e nlarged for her age and that

she had signif icantvaginal s carring, as a result of “tear s” in the vagin al tissue. Dr. Brewer stated that t hese physical characteri stics i ndicate vagi nal penetrat ion.
In post-convi ction proceedings, t he petiti oner has the bu rden o f provi ng the allegati ons of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30- 210(f). Wh en rev iewing the dis miss al of a post-convicti on petition, t his Court must affirm the judgment of the tri al court unlessthe evidence in the reco rd preponderates against the judgm ent. Black v. S tate , 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).

In determining whether counsel provi ded effective assi stance at tri al, thecourt must decide whether

counsel’s per

formance was within t he range of competence demanded of attorney s in crimin al cases
. Baxte r v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his co unsel w as ineffec tive at trial, a petiti oner bears the bu rden o f show ing tha t his counsel made error s so serious t hat he was not funct ioning as counse l as guaranteed under the Sixt h Amendment and thatthe de ficient re prese ntatio n preju dic ed the p etitioner res ulting in a failur e to-4-

produc e a reliable result. Strickl and v. Washington , 466 U.S . 668, 693 , 104 S. C t. 2052, 80 L. Ed. 2d 674, reh’g denied , 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993); Butler v. State , 789 S.W .2d 898, 899 (Tenn. 199 0). To satisf

y the second pron g the petit ioner must show a reason able pro bability that, but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le doubt reg arding p etitioner’s gu ilt. Strickl and , 466 U.S. at 695. This reason a bl e probab ilitymust be “suff icient to un de rmine con fidence in the ou tcome.” Harris v. State , 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted)

.

When reviewi ng trialcoun sel’s ac tions, th is Cou rt shou ld not u se the bene fit of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s al leged errors shoul d be judged at the time they

were m ade in ligh t of all facts and circu mstan ces. Strickl and , 466 U. S. at 690; see Cooper , 849 S.W.2d at 746.

In determining whether thi s Petiti oner has sati sfied these requirements, this Court must g ive the findin gs of the tria l court t he weigh t of a j ury verdi ct, and th e judgment of the tria l court w ill not be rever sed unless the ev idence contai ned in the record prepon derates against the findings o f fact mad e by the trial c ourt. State v. Buford , 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).

We have revi ewed Petiti oner’s var ious clai ms and we find that Peti tioner has failedto present any ev idence that shows that hi s attorney represented hi m in any othermanner than competentl y. We should note that Petiti oner did not tes tify at his post-convi ction hearing
. Petiti oner fir st clai ms that counsel’ s fail ure to interview the victim prejudiced his c ase. H owev er, Pe titioner fa iled to p rovide any pro of at his-5-

hearing that the victim would h ave agre ed to be interviewe d or that a pre -tri al interv iew would have pr ovided counselwith any additional i nformation.

Second ly, Petiti oner cla ims t hat tr ial co unsel failed to interview other witnesse s such as the school gui dance counselor, the vict im’s school f riends, and the mother and brother of

Petiti oner’s al ibi wit ness. Peti tioner cl aims thathe was prejudi ced by trialcounsel not intervi ewing these witness es. However, none of these wit nesses were presented at the post-conviction hearing to state what t hey would have testifi ed to had the y been c alled at tr ial. There is no evi dence that these witnesses’ purported testimony woul d have in any way helped Petit ioner ’s case. In its Order dismissing Pet itioner’s peti tion, t he trialcourt stated the fol lowing:

What the petiti oner means i s thattrial couns el failed to pr oduce alibi witness es. At the trial, one alibi w itn es s testif ied. The petiti oner now insists that thealibi witness’ mother and perhaps his br other could have corrobor ated the alibi . These witness es did n ot testif y at the po stconvicti on hearing, and it would b e conjecture to conclude thattheir testimony would have been of benefit to the petitioner. We agree with t he trialcourt’s findings . Petit ion er cann ot expec t this Cou rt to speculate on the questi on of whethe r further inve stigation o f a witness or failure to call a witne ss wo uld have pro duced evidenc e favorab le to this cas e. See Black , 794 S.W.2d at 757. Peti tioner i s not enti tled to r elief from h is convicti on unless he can produce material witness who w ould have te stified fa vorab ly in sup port of h is defens e. See id . at 758.

In conclus ion, the evid ence c ontaine d in th e rec ord doe s not pre ponde rate against the tri al court’ s findi ng that Peti tioner r eceived the ef

fectiv e assistance of
couns el.-6- Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOHN EVERET T WILLIAMS, Judge