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

Briefs A ugust 6, 2002
BUFORD BAR

RETT v. STATE OF

TENNESSEE
Appeal from the Circuit Court for McNairy County No. 1057 Jon Kerry Blackwood, Judge

No. W2001-02862-CCA-R3-PC - F iled January 30, 2003

The petitione

r, Bufo rd Bar rett, ap peals the McNairy

County Circuit Court’s denial of his petition for post-conviction relief from his conviction for rape of a child and resulting twenty-y ear sentence. He claims that he received the ineffective assistanc e of coun sel beca use his trial a

ttorney (1) ref used to let him testify at trial; (2) failed to subpoena his cousin, who could

have testified that the petitioner
was not present

when the allege d crime o ccurre d; (3) fa iled to re quest a D NA test fo r the vic tim; and (4) fail ed to inve stigate

the fac ts surrou

nding a statemen t that his wife g ave to the police in which she admitted that she had sexually abused the victim. In addition, the petitioner contends that the cumulative effect of his attor ney’s defi cienci es prev ented him fr om rece ivin g a fair tria l. We affirm the trial court’s denial of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOMAS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined. Paul Simpson , Selmer, Tenness ee, for the appe llant, Buford Ba

rrett.
Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Jerry W. Norwood, A ssistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

This case re

lates to th e rape o f the pet

itioner’ s two-y

ear-ol d daugh

ter in May 1997. A jury convictedthe petitioner, and this court affirmed the conviction. See State v. B uford Will Barre tt , No. 02C01-9901-CC-00023, McNairy County (Tenn. Crim. App. Oct. 21, 1999), app. denied (Tenn. May 22, 2000). On appeal, this court stated the following facts: On May 16, 1997, the petitioner’s wife, Jeanette B arrett, was in the bathroom , and the v

ictim was asle ep on a be d. When Ms. B arrett came out of the bathroom, she saw the defendant with his penis inside the victim’s vagina. Th e petitioner immediately pulled up his pants and went into the kitchen. Ms. B arre tt c leaned up the-2-

victim, and the pe

titioner t hreate ned to hurt Ms. Barrett if she told any one about the rape. On July 19, 1997, a doctor examined the victim, and Ms. Barrett told the doctor that the victim had been sexually abused. Betwee

n July 24 and July 29, 1997, three doctors examined the victim and found injuries to the vic tim’s ge nitalia. O ne of the

doctors s tated tha

t the victi m had an a

bnormally

large vagina, which ha

d been c aused by

an objec t being r

epeate dly inserted into it. A seconddoctor a lso believedthat an objec t ha d been inserted into the victim and concluded that the object was larg er than a finger. Buford

Will Barr

ett , slip op. at 2-5.

At the evidentiary he aring, the petitioner’s trial attorney , an assistant publ ic d efender, testified that

he was appointed

to represent the petitioner and that he talked with the petitioner eig ht to ten times. He said that the petitioner had been ch arged

withrape and aggr

avated sexual battery agains tthe victim

and that t

he petitio ner deni ed committ ing the c rime s. He said

th at he did not interview Jeanette B arrett a nd that Ms . Barr

ett testif ied as an ey ewitnessagains t the petit ioner at trial. He said that

during her testimony , he learned for the first time that Ms. Barre tt had given a written statement to the police in which she admitted d igitally penetra ting the victim on sever al occa sions. He said that M s. Barr

ett had been charged with committing a se xual crime against the victim but that she was not a

codefe ndant. He

said that he was allowed to see Ms. Barrett’s statement at trial, that he questione d her abo

ut it, and th at she as se rted he r Fifth Amendment privilege against selfincrimination. He said that Ms. Barrett’s testimony containedcontradictions and that he pointed out the contradictions to the jury in his closing argument.
The attorne

y te stified th at he did n ot reque st DNA testi ng for t

he victim because a doctor did notexamine the victim until July 1997, two months after the alleged rape. He said that the pe titioner wanted to take a po lyg

raph tes t but that he

advised t he petitio ner ag ainst it

because the test results were ina dmissible and bec ause he w as afra

id the re sults would

incrimina

te the petiti oner. He

said that altho ugh th e peti tion er had s ome me ntal s hort- comin gs and could not read or write, the petitioner understood every

thing he explai ned to t he petitioner. He said that at one point, the petitioner said he wanted to testify at trial. H e said that he advised the petitioner not to testify because th e p et it io ne r w ou ld be “b ad ge re d a nd po ss ib ly . . . contradicted by the DA.” He said that he had thought the petitioner’s testimony would be unnecessary

because heexpected Ms. Barrett’s testimony to crea te reas onable do

ubt for the jury . He said

that he never told the petitioner that the petitioner could not testify and that

in hindsight, he still would have advised the petitioner not to take the stand. He

said the petitioner told him that the petitioner’s cousin could prove the petitioner was notwith the victim when the rape allegedly occurred. He said that he t hought he talked to the petitioner’s cousin an d that the cousin would not hav e helped the defe nse. He s a id t hat he was prepared for trial and that he di d not belie

ve the jur y he ard enou gh evid

ence to convict the petitioner. Investigator

Frank L evasseu r of the M cNairy

County Sheriff’s Department testified that he investigated

the petitioner’s case and that the petitioner and the petitioner’s wife each gave a statement to the polic e. He sa

id that af ter he f inished in vestiga ting the petitio ner’s ca se, Jeane

tte Bar rett gave a second statement in which she admitted pene trating the victim with her finger. He said that as a result of that state ment, he c

harge d Ms. Barre

tt with aggravated sexual battery and that Ms. Barrett’s case was separ ate from the petitioner’s case.-3-

The petitioner testified that he was born in 1974 and had never gone to school

or obtained
a GED. He said he could not read or write but could write his name. He acknowledged that not being able to read or write had impaired h is abi lity to understand things and that he did not understandthe “bas ics” of th e crimesallege d in his indictment. He said that h

e and JeanetteBarre

tt were no longer married and that she lied when she testified at trial that she saw him rape the victim. He said that other than receiving a traff ic ticket, he had never been char ged w ith a crime . He acknowledged

that he talked wi

th his tria l attorne y se veral tim es and tha t he told his attorn ey he did notrape the victim. He said that he told his attorney he wan ted to test

ify and that his attorney explained some of the reasons why he should not take the stand. He said that his attorney advised him not to testify and

that he took his attorney’s a dvice. He said he had wanted to tell the jury that he never touched his daughter.

In its order denying

post-conviction relief, the trial court onl y addressed the petitio ner’s c laim that his attorney

was inef fective for ref using to a llow him to

testify at trial. The trial c ourt believed the attorney’s testimony

that he hadadvised the petitioner not to testify beca use he thought the petitioner “might d amage

himself on cross-examination.” The trial court noted that the petitioner
never claimed at the evidentiary he aring that his trial attorney refused to let him testify and r uled that the petitioner received the effec tive assistance of counsel.

The petitioner c laims t

hat he received the ineffective a ssistance of counsel for various
reasons
. In addition to his claim that his attor ney was inef

fec tive for refusing to let him testify at trial, he contends that his attorney should have subpoenaed his cousin, who could have testified that the petitioner was not at home with the victim when the alleged rape occurred. He also cla ims that his attorney should have

requested a DNA test for

the victim because the test would have exonerated him. Finally, he c ontends that his attorney was ine ffective for

failing to investig ate the f

acts surrounding Jeanette Barrett’s incriminating statement to police because the statement affected her
cr ed ib il it y. In addition, the petitioner claims that the cumulative effect of his attorney ’s deficiencies denied him the right to a fair trial. The state arg ues that the petitioner received the effective assistance of counsel. We agree with the state.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance wa s deficient and (2) that the deficiency

was prejudicial in terms of rendering a re asonable probability that the r esult of the trial
was unre liable or the proceedings fundamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 205 2, 2064 (1 984); see Lockhart v. Fretwe ll , 506 U.S. 364, 368-72, 113 S. Ct. 838, 8 42-44 (1993). The Strickland standard has been applied to the right to counsel under ar ticle I , section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) , our supreme court decided that at to rn eys should be held to the general standard of whe ther the services ren der ed were within the range of co mp et en ce de ma nd ed of at to rn eys in criminal cases. Further, the court stated that the ran ge of competence was to be measured by the duties and criteria set forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir.-4-

1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of c ounsel’s challenged conduct, and to evalua te the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular stra tegy or tactic failed or even hurt the defense does not, a

lone, supp ort a cla

imof ineff

ective a ssistance . Defer

ence is made t o tria l str ategy
or tactical choices if they

are informed ones based upon adequate pr eparation. Se e Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

In a post-conviction case, the burden is on the petitioner to prove by clear and convinci n g evidence his grounds for relief. Tenn. Code Ann. § 40-30-210(f). On appeal, we are bound by the trial court’s finding s of fac t unless we conclude that the e vidence in the record

prepond erates agains t those findings. Field s v . State , 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review t he trial cour t’s conclusions as to whether counsel’s performance

was deficient and whether that deficiency was pre judicial under a de novo standar d with no presumption of correctness. Id. at 457.

As to the petitioner’s claim that he received the ineffe ctive assistance of counsel because his trial attorney re

fused to let him testify, the petitioner stated a t the evidentiary he aring that he did not take the stand

because his attorney advised a

gainst it. As the trial court noted, the petitioner never said that his attorney ref

used to let

him testify. As to his claim that his attorney was ineff ective for notsubpoena

ing his c ousin, the

petitione r did not pr

esent the cousin’s testimony

at t he h earing. Without testimony

from his cousin, the petitioner cannot demonstrate that he was prejudiced by h is attorney’s failure to call the witness on his behalf. See Black v. State , 794 S.W.2d 753, 757 (Tenn. Crim. App. 1990 ). Next, the petitioner claims that his attorney w as ineffective for failing to reque st DNA testing. However, the petitioner’s attorney testified that DNA testing was unne cessar y in this
case because the petitioner allegedly raped the victim two months before a doctor examined her, and the petitioner has presented no proof as to how scientific testing months after the crime could have exonerated him. The petitioner has fai led to show that he received the ineffective a ssistance of counsel.

As to the petitione

r’s clai m that his a

ttorney was inef fective for fail ing to inv estiga

te the fac ts surrounding his wife’s second statement to I nvestigator

Lavessuer in which

she admitt

ed digit ally penetrating the victim, we believe that the pet itioner again

has faile d to demons trate tha t he is entitled to relief. Our rev iew of the trial tra nscript r eveals th at af

te r M s. Ba rr et t’ s d ir ec t t es ti mo ny, the petitioner’s attorney

asked to see her second statement, and the trial court

granted the defense’s request

. On cross -examinat ion, th e petit

ioner’s attorney

asked Ms. Barrett if she had sexually abused the victim. Ms. Barrett sai d no and invo ked her Fifth Amendment privilege ag ainst selfincrimination. Later, I

nvestigator Leva ssuer testified for the de fense that on Dece mber 12, 1 997, Ms. Barrett stated

that she had digitally pe

netrated the victim. Thus, the petitioner’s attorney used the statement to impeach Ms. Barrett’s testimony and attack her credibility

. The petitioner has failed to explain what more his attorney should have done regarding

the statement or how he was prejudiced by a

ny deficiency.-5-

Based upon the foreg oing an d the rec ord as a w hole, we affirm t he judg ment of the

trial cou rt.

___________________________________ JOSEPH M. TIPTON, JUDGE