### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 23, 2000 Ses sion RONALD E. WALTON v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Hamilton County

No. 169648 Douglas A. Meyer, Judge

No. E1999- 01165-CCA- R3-PC December 28, 2000
After a hearing, the petitioner appeals the criminal court 's ord er dismissing his petition for postconviction relief. Convicted in 1968 of assault and battery with intent to rape, the petitioner was sentenced to incarceration for ten years. The petitioner has fully served his sentence in Tennessee. However, his Tennessee conviction was used to enhance his 1980 conviction of rape in Indiana. The petitioner proceeds to challenge his Tennessee conviction, in hope of a sentence reduction in Indiana. After careful

review, we aff

irm the criminal co

urt’s dismissal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLI AMS , J., delivered the op

inion of the court,

in which T HOMAS T. W OODALL and A LAN E. G LENN , JJ., joined. Philip L. Duval, Chattanooga, Tennessee, for the appellant, Ronald E. Walton. Paul G. Summers, A t torney Gen eral and Reporte

r; R. Stephen Jobe, As sistant Attorney General; William H. Cox III

, District Attorne

y General ; and Bates W. Bry an, Jr. and Rodney

C. Strong , Assistant District Attorneys, for the appellee, State of Tennessee.

OPINION Case Chronology The petiti oner was or iginally in dicted twice for

the same conduct b

y a Hamilton C

ounty Grandjury on Se

ptember 11, 1 968. When the petitioner was tried, he was found guilty and sentenced by a jury on Oc tober 30, 1968, for assault and battery with intent to rape. On December 13, 1968, a jury found the petitioner guilty and sentenced him for first degree burglary with intent to rape . These two case s were then conso

lidated for direc

t appeal.-2-

On direct appeal, the Court of Criminal Appeals affirmed the conviction for as sault and battery with intent to rape, but reversed an d dismissed the firs

tdegree burglary with intent to rape on double jeopard y grounds. Walton v. State , 448 S.W.2d 690 (Tenn. Crim. App. 1969). The Supreme Co urt denie d permission to appeal further on December 15, 1969. Walton , 448 S.W.2d 690.
In November 1987, th e petitioner file

d a pro se petition f

or post-convictio

n relie f, challengin

g his 1968 convicti on. The petition was summarily dismissed in February 1988. The pe titioner subsequently

appealed the tri

al court’s dismissa

l. This Court reversed the trial court and remanded the matter for further proceedings. Ronald E. Walton v. State, Hamilton County, No. 1073 (Tenn. Crim. App., filed February 1, 1989, at Knoxville), perm. to app. denied (Tenn. 1989). After this Court remanded the case, counsel was appointed in July 1989 and an am ended petition was filed. The amended petition alleged that the petitioner received ineffective assistance of counsel at his 1968 trial. Because the petitioner was incarcer at ed in Indiana, action on the am endedpost-conviction pe tition was postponed

until his testimony

was taken by

depositi on i n October 1998. Three hearings on the amended petition were then conducted: the fi

rst in June 1998, the second in November 1998, and the third in June 1999. On June 28, 1999, the trial court denied the petitioner's re

quested post-con

viction relief. I

t is from this denial t

hat the petitioner

now appeals.
In this appeal the petitioner contends that his trial counsel’s performance at the 1968 trial was deficient. Spe cif ica lly, the petitioner alleges that trial counsel’s performance was ineffective for the following reas

ons: 1. Fail ure t o me et a nd c ons ult wit h hi m ad equ ate ly; 2. Lack of e ffective cross-examination of the victim, specifically as relates to her ability to recognize his v

oice and her des

cription of th

e p erpetrator’s c

lothing; 3. Failure to discredit the fingerprints an d shoe p rint evidence discovered at the crime scene; 4. Failure to call several witnesses that would testify consistent with the petitioner’s defense that the victim concocted the assault story to cover her illicit affair; 5. Failure of counsel to object to the victim’s reference of the p etitioner’s r

ecent release from “Pikeville,” a juvenile detention facility; and 6. Counsel erred in questioning the petitioner about his juvenile record. The petitioner insists that but for these deficiencies, he would likely have been found not guilty

. The petitioner’s 1968 trial counsel also testified at the post-convict ion hearin g. He remembered

very little about the specifics of the1968 trial . He began prac ticing law i n Chattano oga in August 1968 and

this trial occurred

in October 1968. T

his case was one o

f his first crimina

l trials. The following recit

ation of facts

is from the opinion of this Court on direct appeal from the petitioner’s conviction:-3-

In th e in sta nt c ase C arol yn Few testified that she was in her home alone and asleep during the nigh t of Jul y 21, 1968. She had just been married four months and her husband was at work, on the third shift. She stated that she was awakened at about four o’clock in the morning, that the defendant was in her bedroom, that he jumped on top of her and put h

is hands around he

r throat and told

her that if she screamed he would kil l he r. S he co nti nue d he r te sti mon y by sa yi n g that she told the defendant that she was in her menstrual period and that she would have to wash up. The defendant let her go into her bat hroom, and she filled the basin with hot water, soakeda wash rag in it,

and when the def

endant came

into the bathroom she hit him in the face with the hot rag, screamed and ran ou t the back do or for help. She testified that she could see and reco gnize the defendant, that she had known him for about five years because he ran around with her brother. Car olyn Few testified that she could see the defendant clearly, that her bedroom is illuminated by a street light outside, and that this light shone on his face.
It is clear from this record that Caro lyn Fe w knew the defendant for several years prior to this crime, that she had known that he was a friend of

her brother’s, and that she had seen him freq

uently. I t is also clear that

she did not know his name, and for this reason, on cross examination, her testimony was at times vague on the question of whether she knew the defendant. There is absolute ly no question

in our opinion that she did know the defendant, and that she identified him as her assailant, but she was not sure of his name until she asked her brother. Defendant’s witnesses who attempt ed to establish an a libi in his behalf we

re all members of his family. They testified that the defenda ntwas at home and in bed at times before and

after this crime, but

none of them testified that he was at some other place than the home of Mrs. Few at the time she says she was assaulted. Upon a review of the entire record it is clear that the defendant has failed to carry the burden of demonstrating he

re that the evide

nce prepondera

tes against

the verdict of the jury and in favor of his innocence. Walton v. State

, 448 S.W.2d 690, 694-95 (Tenn. Crim. App. 1969).

After conducting the post-conviction relief hearing, the trial court, in its Order Den ying Petition for Post-Conviction Relief, set out several pertinent findings. These findings include: (1) The petitioner failed to prove that his co nstitut ional rights were violated by ineffective as sistance of couns el.-4-

(2) The trial attorne

y chose not t

o vigorously cross-exam the victim about her identification of petitioner. To have done so, may very well have strengthened her testimony . She had known peti tioner about five

years. He

ran around with her brother and had been to their home. She very well could have recognized his voice and his face and

needed help in remembering “Lebron’s brother’s name.”
He did question the victim as to whether she had been to a party that evening, had men over while her husband was at work, knew Percy Blocker or Jimmy Green, and whether she had h

ad a fight with on

e of her lovers th

at night. And althou gh questions attorneys ask are not evidence, he did manage to plant that “seed” of doubt in jurors’ minds.
He may not have subpoenaed Lindsay, Blocker and Gree n, because hewould not be sure what

their testimony wou

ld be, unless they

voluntarily

came to court to te ll it. Even if Blocke

r had come to cour

t, his testimony

about being sexua

ll y involved with the victim, would probably not have been permitted. (3) Tr ial attorney

did not need an expe

rt witness about the

latent fingerp

rints. Detective Gilliland testified that they were not petitioner’s. Obv iou sly, the trial attorney knew what Gilliland would testify

to, he called him as a witne ss , not the State. His cross-exam of the victim and other witnesses indicatedhe knew before

what their testimon

y would be. T

he prosecutor, in

his closing summation, said, “Mr. Carpenter worked very hard on this case. Exerted all efforts to g ive Walt on a good defense.” The trial attorney had obtained discovery by talking t

o the prose

cutor to fi nd out what the State ’s proof would be. (4) The one glaring

mistake the trial lawyer made was asking petit ioner about his juvenile record. Some atto

rneys fee l it is better to bring

out on direct a defendant’s record, but that i s only if the State is going to be able to do it on cross-examination. In this case, the State could not have asked petitioner about his juvenile record. Petitioner’s answer “two counts of robbery, and one

time a burglary” was extremely

prejudicial to petitioner. But, petitioner was not entitled to a perfect trial. Trial counsel performed as well as a lawyer w

ith ordinary

training and skil

l in criminal law wo

uld and hisservice was within the range of competence dem anded by at torneys in c

riminal cases. But even if he did not, there is no showing of any reasonable prob abi lit y that pet iti one r wo uld not hav e bee n fo und guil ty.
Analysis-5-

This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington ,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to deprive him of a fair trial. See Strickland v. Washington , 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State

, 874 S.W.2d 6, 11 (Ten

n. 1994); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). To demonstrate prejudice, a defendant or petitioner must show that there i s a reasonable probability that but for counsel’s error, the result of the proceeding would have been different. The test in Tennessee

for determin

in g whether coun

sel provided eff

ective assistanc

e is whether his performance

was within the ran

ge of competen

ce demanded of a

ttorneys i n c riminal cases. See Baxter , 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct falls within the wide range of acceptable professional assistance. See Strickland , 104 S.Ct. at 2065; Hicks v. State , 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998), Alley v. State , 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997) . Therefore, in order to prove deficiency, pe titioner must show that counsel’s acts or omissions were so serious as to fall below an objective standard of reasonablenes s under prevailing professional norms. See Strickland ,104 S.Ct. at 2065; Henley v. State , 960 S.W.2d 522, 579 (T enn. 1997); Goad , 938 S.W.2d at 369.
In reviewing counsel’s conduct, a “fair assessment . . . requires that e very effo rt be made to eliminate the distorting effects of hindsight, to r econstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the de fense, does not, standing alone, establish unreasonab le represent ation. How ever, deferen ce to matter s of strategy and tactical choices apply only if the choices are inf ormed ones based uponadequate preparation. See Goad , 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley , 958 S.W.2d at 149; Cooper v. State , 847 S.W.2d 521, 528 (T enn. Crim. App. 1992). Further, because the petitioner’s case was filed in 1 987 , th e pet iti one r has the bur den of p rov ing h is c ase b y a preponderance of

evidence. See Clenny v. Stat

e , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
Fin all y, the trial j udge’s findi ngs of fact in post-conviction hearings are conclusive on appeal unless the evidence preponderates otherwise. See Butler , 789 S.W.2d at 899; Adkins v. State , 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). In fact, the trial court’s findings of fact are afforded the weight of a jury verdict, and this Court is b oun d by t he findings unless the evidence in the record preponderates against them. See Henley , 960 S.W.2d at 578. That burden lies with the petitioner. See Id . at 579. Based upon our de novo review of the enti re record and the findin gs of the post-conviction court, we conclude that the evidence does not preponderate against the trial court’s f inding. The petitioner failed to carry his burden on the issue of trial counsel failing to meet or consult withhim adequately. The record reveals that counsel was prep

ared to cross-e

xamine key wit

nesses, develop defenses, and call witnesses that possessed favorable testimony for the pe titioner.-6-

The petitioner contends that there was a lack of effective cross-examination of the victim and a failure to discredit the fingerprint and shoe print evidence discovered at the crime scene. After reviewing the record, we conclude that the evidence does not preponderate again st the postconviction court’s finding of effective a

ssistance of coun

sel. Although cr

oss- exam ination of the victim may have strengthened the victim’s testimony about her identification of the defendant, trial counsel’s abandonment of more strenuous cross-examination was a tactical decision that we will

not secondguess. The record reveals that trial counsel effectively disc redited the fingerprint and shoe print evidence, and that there was no need for additional expert testimony on this issue. The petitioner ne

xt claims that trial counsel was ineffective for asking the petitioner about his juvenile reco rd. After reviewing that claim, we conclude that the evidence does not show a likelihood that the defendant would n ot have been conv

icted but for this pr

ejudicial eviden

ce. It is clear that such evidence would not have been admitted upon cross-examination by the State. However, given the clear evidence of guilt at trial, we find that it was harmless error. See, e.g. , State v. McGhee , No. 85-241-III (Te nn. Crim. App. Filed on Nov. 28, 1986, at Nashville).

CONCLUSION After careful review, we affirm the post-conviction court’s denial of the petitioner’ s claim for post-conviction relief.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE