# FILED
June 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON MARCH 1999 SE SSION

ROY L. SHERROD, ) ) Appellant, ) No. 02C01-9806-CR-00164

) ) Shelby County v. ) ) Honorable James C. Beasley , Jr., Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Jeffery Gladstein John Knox Walkup 200 Jefferson Ave., Suite 1313 Attorney General of Tennessee Memphis, TN 38103 and Patri cia C. Kussmann Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General and Paula Wulff Assistant District A

ttorney General 201 Poplar Avenue, 3rd Floo r Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Roy L. Sher rod, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. He seeks relief f rom his jury convictions

for aggravated rape and robbery. This court affirmed these convictions and his forty-year se ntence in the Department of Correc tion as a Range III, persi stent offender, for aggravated rape but modified the consecutive robber y sentence to fourteen years as a Range I II offender. State v. Roy L. Sherr od , No. 02C01-9510-CR00331, Shelby County (Tenn. Crim. App. July 26, 1996) . The petitioner contends that he received the ineffective assistance of counsel at trial and o n direct appeal because counsel: (1) failed to object to the expert testimony of a witness for the state; (2) failed to obje ct to im proper remarks made by the s tate during closing arg ument; (3) failed to object to a jury inst ruction on reasonable doubt which included the phras e “to a moral certainty ;” and (4) failed to interview a potential witness. We affirm the trial court’s denial of post-conv iction relief.

At the evid entiary he aring, the petition er testif ied that his trial a ttorneys were ineffective for failing to object when the trial court instructed the jury that a nurse called by the state was an expert witness. He said that during her testimony, the nurse admitted that she was not an ex pert when she said that she was working on

her sexual assault nurse evaluation certification. Reading fr om his petition, the petitioner said that the nurse testified that she w as not qualified to say or could not say whether the injuries suffered by the victim coul d be consistent with anal penetration occurring quickly and without lubrication. He said that he thought that this statement meant that she was not qualified to testify about sexual assault. The petitioner stated that trial counsel were3

ineffective for not objecting t o the nurse’s qualificati on as an expert and for not preserving and raising this issue on direct appeal.

The petitioner testified that his attorneys were ineffecti ve for not objecting to improper statements in the st ate’s closing argument . He said that the prosecutor argued that the petitioner raped the victim and that the petition er’s claim that the victim was a prostitute was not true. The petitioner stated that the prosecutor also imp roperly commented upon his silence at the ti me of his arrest. He said that the prosecutor argued that the petitioner di d not tell the police that he ha d consensual sex with the victim when they first confronted him, that this w as inconsistent, and that this showed that he was lying to the jury. The petitioner said that these statements affected the jury’s deliberatio ns regarding his defense o f consent.
The petitioner testified that his attorneys were ineffecti ve for not objecting to the trial court instr

ucting the jury that reasonable doubt requires a moral certainty of guilt. He admitted that the Tennessee Supreme Court had upheld thi s instruction, but he said that federal courts hav e held it to be unconstitutional

.
The petitioner testified that he was not satisfied with his attorneys’ investigation of his c

ase. He said that they di d not properly inves tigate because they did not interview his brother. He said that he was coming from his brother’s house when the victim approached him. He stated that he gave one of his attorneys his brother’s name, address and telephone num ber, but she was not able to reach his brother by telephone, and she never went to his brother’s house. He stated that his brother would have testified that on the night of the off ense, the petitioner was at his house and left to go to their mother ’s house. On cross-ex

amination, the petitioner admitted that having his brother testify that the peti tioner was at his house before the4

incident would not hav

e changed his theory of defense tha t he and the victim had
consens ual sex.

The petitioner’s lead attorney testified that she had been employ ed by the Shelby County Public

Defender’s Office for seven yea rs. She said that she had been with the Public Defender’ s Office for nine months to one year at the time she represented the petitioner. She said that although she had w orked on a few rape cases before she represented the petition er, his case was her first trial. She said that another public defender assisted her w ith the petitioner’s case.
The lead attorney testified that the nurse, who testified for t he state, had said that she had performed thousands of r ape crisis examinations . She said that she thought that the nurse was qualified and that the trial court had already limited the nurse’s testimony to only what she had seen or done. She said that she saw no basis for objecting to the nurse’s testimony. She said that s he could not remember the state asking the trial cour

t to declare the nurse an ex pert, but she did not recall this being an issue. She said she thought that the trial court w ould have deemed the nurse to be an expert.
The attorney testified that she al so had no basis for objecting during the state’s closing arg ument because the prosecutor w as arguing, not testify

ing. She agreed that during the trial, police officers had recounted tha t when they first questioned the petitioner, he said that he was wal king home from work but after they arrested him, he told them that th e victim engaged in c onsensual sex with hi m for money. Sh e said tha t she had objected to these stateme nts as ina dmissibl e hearsa y, but the trial court allow ed the statements into evidence . She stated that she saw no basis for objecting to the pr osecutor’s argument about the petitioner’s initial statement.5

She said that the trial cour t gave the standard inst ruction on reasonable doubt and th at she did not think that this instruction was unconstitutional.

The attorney testified that the pet itioner gave her the n ames of several witnesses to interv

iew, including his

brother. She said that her i nvestigator tried t o contact the petitioner’s br other but was not able to l ocate him. She said that nothing the petitioner told her led her to believe that his b rother could have prov ided an alibi and that their theory of defense w as that the petitioner and the v ictim had consensual sex. She said that the brother’s testimony that the petitioner had lef t the brother’s house would have had no bear ing on the theory of defense.
The attorney testified that she en couraged the petitioner to a ccept the state’s offer of a nine-year sent ence, especially in l ight of the petitioner’s tw o prior rape convictions, but the petitioner wanted to go to tr ial. She said that she check ed the victim’s records an d found no arrests or convi ctions for prostitution. She stated that they interviewe

d the victim, the vic

tim’s boyfriend, and the v ictim’s mother, but they found no evidence or witnes ses to show that the vi ctim was a prostitute or a drug addict. She said that although she was not able to verify that the victim was a prostitute, she questioned the victim at trial about accepting money for sex. She said that she tried to persuade the pet itioner to testify at tr ial because they had no other evidence that the vict im was a prostitute. She said that the few prior c onvictions that the state could have used to i mpeach the petitioner would have had little impact but that he refus ed to tes tify.

On cross-examination, s he testified that she did not rec all whether she had reminded the jury that the closing arguments were not proof. She said that she did not believe that she could h ave done anything that w ould have changed the outcome of the trial.6 Co-counsel testified that he formerly worked for the Shelby County Public Defender’s Office for almost nine years. He said that he assisted with the petitioner’s case but that he was not inv olved with the pretr

ial investigation. He said that at trial, the state’s nurse testified that s he had examined hundreds, if not thous ands, of rape victims and that she only testified to what she obser ved and the procedures that s he followed. He said that she did not testify about what caused the injury to the victim’s rectum. He said that she test ified within the limits set by the trial cour

t and that he believed her to be an expert on the evidence she gave. He said that he saw no basis for obje cting to he r testimo ny.

Co-counsel testified that he saw no basis for objecting to the state’s closing argument. He said that he believed the prosecutor was stating the evidence given by the wi

tnesses at trial. He sai d that the trial court g ave the standard instruct ion on reasonable doubt and that the Tennessee Supreme Court had approved the constitutionality of this instruction. He said that he did not think that the petitioner’s brother could have aided the ir theory of consent. He said that they investi gated whether the victim w

as a prostitute. He said h e felt that lead counsel’s w ork on the petitioner’s case was

excellent.
Karen Cook testified that she worked for the District Attorney General’s Office and that she represented the stat e pretrial in the petiti oner’s case. She said that the defense team had open-file discove ry in this case and that lead counsel responded to her Motion for Notice of Ali bi that the petitioner had none. She said that she had investigated the possi bility that the vi ctim was a prostitute w hile preparing for negotiatio ns in the cas

e but that she

had found nothi ng to substa ntiate this claim.
The trial court denied the petition for post-conviction relief and made the following detailed factual findings:7 The Transcript of thetrial shows that the [nurse] was properly qualified as an expert an d allowed to testify as same. . . . . This Court finds that the witness was “ in fac t” an expert and that the complaint is without merit, therefore the fact that his [attorneys] did not object to her expertise does not render them ineffective.

. . . . [T he po rtion of the state’s closing] argument in que stion dealt with the fact that the pet itioner’s defense was that he had consensual sex with the vi ctim for money, and yet at the time o f his arr est instead of telling the pol ice that[,] he said he had jus t got off from wo rk and had been to his brother’s house drinking. . . . . [U]nd er the circumstances of the proof in this case . . . the argument made by the state was prop er and that there was no basis for an objection by petitioner’s attorneys

. . . . .

. . . . Our Supreme Court has u pheld the [reasonable doubt] jury instruction given and therefore this issue has no merit. Fi nally, the petitioner claims his attorneys wer e ineffe ctive because they failed to properly investigate his case.

. . . . The only witnes s not interviewed w

as the peti tioner’ s brother who could not be

located and whose testimony would not have affected the outcome of the trial.

I. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that he rec eived the ineffective assi stance of counsel. Under the Sixth Amendment, when a claim of ineffectiv e assistance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel's performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied, as w ell, to the right to counsel under Article I, Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874 (1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court stated that attorneys shoul d be held to the general standar d of whether the servic es8

rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel's conduct, a "fair asses sment of attorney performance req uires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to ev aluate the conduct from counsel's perspective at the time." Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fa ct that a particular strategy or tactic failed o r even hurt the def ense doe s not, alo ne, supp ort a claim of inef fective assistance. Deference is made t o trial strategy o r tactical choices if they are informed ones based upon adequate preparati on. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

Also, we note that the approach to the issue of the inef fective assistance of counsel does not have to start with an analysis of an attorney's conduct. If pre judice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

A. EXPERT WITN ESS The petitioner contends that his attorneys’ performance w as deficient because they failed to object t o the expert testimony of the nurse, who was nev er declared to be an expert w itness by the trial c

ourt before the jury. The petitioner argues that the failure to object resul ted in the witness pres enting prejudicial ev

idence to the jury. The state contends that the petitioner was not prejudiced because the trial court found the witness to be quali fied to present her expert te stimony and that if the9

petitioner’s attorney had objected, the trial cour t would have immediately declared her an expert and corrected thi s “oversight.” We agree.

Rule 702, Tenn. R. Evid., states: If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert byknowledge, skill , experience, training , or e ducation may testify in the form of an opinion or otherwise. The petitioner concedes that the nur se had the qualifications to t estify as an expert. He has presented no evidence that, had his attorneys obj ected to the state’s failure to have the trial court dec lare the nurse an expert, the result would hav e been anything other th an such a

declar ation. Because t he nurse would h ave been

permitt ed to tes tify as an expert even if the peti tioner’s attorneys had made the objection, the petitioner has suffered no prejudice by their failure to object.

B. IMPROPER CLOSING ARGUMENT The petitioner contends that he rec eived the ineffective assi stance of counsel because his attorney s failed to object to improper remarks made by the prosecutor during the state’s closing argument. The state argues that the petition er’s attorneys properly made no objection to the prosecutor ’s remarks because the prosecutor merely pointe d out the inconsistencies i n the petitioner’s statements to the police and did not misstate the facts. We agree.

Initially, we note that the record does not include a transcript of the state’s closing argument. Por tions of the petition for post-conv iction relief were r

ead into evidence at the evidenti ary hearing, inclu ding a quotation of the alleg edly improper remarks: [Prosecutor]: Ladies and gentlemen, the defendant raped the

victim, . . . . He not only di d it once, he did it tw ice. He did it anally and vagi n ally. Now, the defendant would have you all believe that she was a prostitut e and that ’s why she was10 walking down th e street. Ladies and gentlemen, that is not true. . . . . And did he t e ll the police that the first time he was confronted? No. Think about that. That’s inconsistent. That [shows] the lie that he is trying t o perpetrate on you right now. Why [did he not] say that the first time? Why didn’t he say that very evening , Officer, I’m astounded tha t [you’ re arresting] me for this. The trial court found that the pros ecutor was referring

to the petitioner first tel ling the police that he had just left w ork and had been at his brother’ s house drinking rather than telling them that he had con sensual sex with the victim for money.
A prosecutor may properl y base his or her arg ument upon inferences support ed by ev idence i n the rec

ord, in cluding

argument pertai ning to the ver acity of a witness’s testimony

. See State v. B rown , 836 S.W.2d 530, 552 (Tenn. 1992); State v. Beasley , 536 S.W.2d 328, 330 (Tenn. 1976). A prosecutor may even comment upon the defendant’s veracity when the comment is supported by evidence in the record. State v. West , 767 S.W.2d 387, 394 (Tenn. 1989); see also Beasley , 536 S.W.2d at 330. Although a prosecutor i s prohibited from expressi ng a personal opinion on a witness’s credibi lity, he or she may ar gue based upon an analysis of the evidence and the conclusion supported by the evidence. Id. In this case, the prosecutor was merely commenting upon evidence in the record. The petitioner’s lead attorney testified at the evidentiary hearing

that the defense team was not able t o present any evidence that the victim was a prostitute. She testified, and the tri al court’s own analy sis of the transcript confirmed, that the petitioner’s statements to the police w ere inconsistent.
The petitioner characteriz es the prosecutor’s remark s as a comment upon his silence to the poli ce. When a defendant does not testify at trial, a pr osecutor may not comment upon a defendan t’s failure to make a statement to the police because this would punish the defendant for exercising h is or her constitutional right to remain silent. Braden v. State , 534 S.W.2d 657, 659-60 (Tenn. 1976) (noting further11

that a defendant’s pretrial si lence may be admitted with caution when inconsist ent with a defendant’s testimony). Here, the prosecutor did not com ment upon the defendant’s failure to make a statement to the poli ce. Instead, the prosecutor c ommented upon the inaccuracy of the statement that the petitioner made to the polic e.

Because the prose cutor’s re marks were proper, t he petit ioner’s a ttorneys were not in effect ive for no t objecti ng to them . The pet itioner a rgues tha t his atto rneys should have objected even if they had no legal basis in order to remind the jur y that the prosecutor’s remarks were argument, not evidence. The attorneys’ choice not to make the baseless objection suggested by the petitioner was a tactical decision which this court will not second

guess. See Hellard , 629 S.W.2d at 9.

C. JURY INSTRUCT

ION The petitioner summarily ar gues that counsel were ineffective for failing to object to the trial court’s reasonable doubt jury instruction which contained the phrase “to a moral certainty. ” The petitioner concedes in the petition that the Tennessee Supreme Court has upheld an identi cal instruction. See State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994). His attor neys’ decision not to obj ect was within the range of competence required of attorney s in criminal cases.

D. INADEQUA

TE INVESTIGATI ON The petitioner contends that his attorneys were ineffect ive in their investigation of his case because they did not interview his brother. The petitioner’s brother did not testify at the evidentiary hearing. In order for a petitioner to establish prejudice from his attorney’s failure to locate a witness, the petitioner must have this witness testify at the

post-conviction heari ng. Black v. State , 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). “It is elementary that neither a trial judge nor an appel late court can speculate or guess on the question of whether further investigation would12

have revealed a wi

tness or what that wi

tness’ testimony might have been if introduced by defense counsel.” Id. at 757. The petitioner has failed t o prove how he was prejudiced by his attorneys’ inability to locate this witness.

In consideration of the foregoing and the record as a whole , we hold that the petitioner received the effective assistance of counsel and we affirm the denial of post-co nvicti on reli ef.

__________________________ Joseph M. Tipto n, Judge

CONCUR: Gary R. Wade, Presiding Judge

Thomas T. W oodall, Judge