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

Briefs J anuary

14, 2004

CLIFFORD WAR

D, JR. v. STAT E OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2001-A-378 J. Randall Wyatt, Jr., Judge

No. M2003-00668-CCA-R3-PC - Filed February 6, 2004

The petitioner, Clifford Ward, Jr., appeals the Da vidson County

Criminal Co

urt’s de nial of his petition for post-conviction relief from his guilty pleas to two counts of

rape of a child, two

counts of aggravated sexual battery , and effective twenty-five-year se ntence. He contends that he received the ineffect ive assis tanc e of c ounse l bec ause his tr ial a ttorney fail ed toinve stig ate h

is ca se. We affirm t he trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R

. and J OHN E VERE TT W IL LI AMS , JJ., joined. Matthew F. May

o, Nashville, Tennessee, for the appellant, Clifford Ward, Jr.

Paul G. Summers, Attorney General and

Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III , District Attorney Gene ral; and Brian Ke ith H olmgren, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

This case relates to the pet itioner’ s having

sexual con

tact with his six-y ear-ol d daughter from November

1999 to November 2000. At the guilty plea hearing, t

he state pre sented the following factual accoun

t of the crimes: While

the petiti oner and

his family

were liv ing in an apartme nt in Nashville, the petitione

r force d the vict

im to perf orm fella tio on him multip le times a nd had “p enis to vagina l contac t” with the

victim. In a

ddition, th e petitioner would bounce the victim up and down
on his lap, causing him to become sexually a roused. Nasvhille Metro politan Police Officers interviewed

the petitioner twice, and he acknowledge d that he had forced the victim to p erf orm fellatio on him and had bounced her on his lap. At the evidentiary he aring, the petitioner testified that he originally

had been charg ed with two counts of

rape of a child and twelve counts of aggravated sexual battery but pled g uilty to the-2-

rapes and only two counts of ag gravated sexual battery . He said that he retained his trial at t orney after his preliminary hear

ing and that he met with his attorney only three or f

our ti mes at the courthou se an d o nl y once in ja il. He sai d that his a

ttorney went ove

r the cha rges a nd possible penalties wi th hi m a nd th at hi s a tt or ne y ga ve hi m s om e o f t he st at e’ s d is co ve ry. He said that h is attorney asked him

to look ove

r the disc overy

materia ls bu t t ha t t he y n ever discussed them. He acknowledged

giving two audiotap ed state ments to the

police a nd discuss ing the s tatement s with his attorney.

The petitioner testified that he gave his attorney the names, addresses, and telephone num bers of w itnesses but that his attorney never contacted them. He said that one or two of the witnesses
were coworkers and that

the others lived in his apartment complex. He said his attorney should have gotten his employment records. H e said that he and his attorney discu ssed try ing to sup

press his audiotaped

statements, that

his attorney

told him a mo tion to suppress the statements had been filed, and that no he aring on the motion was held . He said

that at fi rst, his attorney

told him and

his family that the state did not have any evidence against him and that he should go to trial. He said that later, his attorney

told him he did not have a defense and advised him to plead guilty . He said that the state initially offered to let

him plead

guilty in exchange for a thirty

-year sentence but that it later offered him a twen ty-five-y

ear sentence. He said his attorney told him that if he did not accept the state’s offer, he may neve

r get out of prison. He said he had wanted to go to trial but decided to accept the state’s plea offer because his attorney was unprepared for trial. He said h is attorne y w ould not come to the jail to talk to hi

m and woul d not retu

rn his tele phone ca lls.
On cross-examination, the petitioner testified that he was forty -one y ears old , obtaine d his GED while in ja

il, and wa s not guilt

y. H e said he

did not hea

r much of what the t

rial cou rt said during the guil

ty p lea hea

ring be cause both of his h earing aids were br oken. He said he to ld his attorney about his hearing aids not working but did not tell

the trial court. H e said tha

t the victi m w as lying and tha

t he felt threatened by

the police during the interviews. He said that he ne ve r listened to his audiotaped statements but that he did not believe he told the police he had sex with the victim. He acknowledged that he was not under arrest when he ga

ve the statements and that after the interviews, he was free to leave. He also acknowledged that he gave the polic e permiss ion to search his apartment

and that t

he police found “a dult sexual things” during the search. He denie d showing the sexual items to the victim or using them on her.

The pet itioner testified that his attorney should have interviewed his apartment com ple x manager and his coworker s. He said that his coworkers would have testified that he worked fourteen to sevente en hours p er day , si x days per

week and that he could not have committed the crimes because he was always wor

king. He said his wife did not work, was always at home, and that he was
never alone with the victim. He said his attorney ne ver explained why his statements to the police could not be suppressed. Upon being questioned by the trial court, the petitioner stated that he looked ov er the g

uilty plea for m but did not

read al l of it. He

acknowl edged

signing the form.

The petitioner’s trial attorney testified that he had been p racticin g law since 1995 and had worked as an as si st an t d is tr ic t a tt or ne y b efore going into private practice. He said that he had-3-

represented

several hundred criminal defendants and that he had repr esented three defendants who had been charged with cr imes similar to

the petitioner’s crimes. He said that before ac cepting the petitioner’s case, he talked with the petitioner twice. He said that afte r the pet itioner r etained him, he met with the petitioner about eight times and filed motions. He said that at first, he believed the state had a

very we ak case against the petitioner. He sa id thatafter he reviewed the state’s discove ry materia ls and the petitioner’s audiotaped statements, he tol d the petitioner that the petitioner probably would be convicte d and shou

ld conside

r pleadi ng gui lty. He said that the sta te lower ed its offer from thirty y

ears to twenty- five yea

rs and that

about one week before trial, the petitioner began seriously consider ing a g uilty plea. He said that a few day s before trial, the petitioner agree d to plead gu il ty.

The petitioner’s attorney testified that the petitioner was not under arrest when the petitioner gave two statements to the police and that the statements were h ighly in criminating. He said that he saw no le gal bas is for fil ing a mot ion to suppr

ess the sta

tementsand t hat the sta tements corroborated

some physical evidenc e in the case. H e said the petitione r never told him at t

he guilt y plea hearing that the petitioner could not hear

and never expressed confusion about the guilty plea. He acknowledged that he we nt over the guilty ple a form with the petitioner and that the petitioner appeared to understand it. He said he looked at th e petitioner’s time cards and talked with the petitioner’s employer. He said that the petitioner’s witnesses were going to testify that the petitioner worked many hours and that while it wa s clear the petition e r worked much of the time, no alibi defense existed.

Oncross-examination, the attorney te stified that the petitioner wanted an opportunity to get outof prison

someday . He said

that he di d not file a m otion for a bill of particulars and that he talked with the petitioner about raising an issue rega rding the fresh complaint doctrine. He said that he reviewed case law on

fresh complaint but concluded it was not a valid iss

ue in the c ase. He

said that he did not remember the victim’s age and did not interview her but that he rea d Child Servi ces’ reports about the case. He said that although nothing indicated the victim was ly ing, the petitioner’s family had a dif ficult time

believin g the vic tim’s alle gations

. He said the petitioner told him that the victim may have be en sexually abused by someone when the family lived in an apar tment complex inColorado. He said he and the p e titioner t alked ab out the pe

titioner t aking the stand a

t trial to dis p ute the victim ’s alleg ations. He said that he did not be lieve the petitione r pled g uilty because the petit ioner thou gh t he was unprepared for trial. He sa id that although he did not read the plea agreement

form to the

petitione r word for word, h e explain ed every para graph of the form to the petitioner.

The trial cou

rt held tha

t the petitioner’s attorne y a dequate ly investig ated the case a

n d discussed the case with the petitioner. It dete rmined that the petitioner chose to plead guilty and

that he u nderstood his rights. The trial court noted that the guilty plea hearing transcript showsth e petitioner “responded intelligently

to each question asked of him by the Cou rt, a nd appeared very attentive during the proceedings.” It denied the petition for post-conviction relief

.-4-

The petitione

r claims t hat he ha d no choic e but to plead guilty be cause his attorney did not investig ate his case ad

equatel y, d id not inter

view witn esses, a

nd faile d to file

a motion for a bill of particu lars. He arg

ues that if his attorney had done

these things, “it would have possibly given the Petitioner a better opportunity to for mulate an alibi defense and proceed to trial.” The state argues that the petitioner received the effective assistance of counsel. We agree w ith the state.

Under the Sixth Amendment, when aclaim 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 deficie ncy was pre judicial i n terms of rendering a reasona ble probability that the result of the tria l was unreliable or the procee dings fundamentally unfa ir. 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 standar d has bee n applied to the rig

ht to couns el u nde r ar ti cle 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 (T en n. 1975), our supreme court decided that at to rn eys should be held to the gener al standa rd of whe th er the services rendered 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. 1973). Also, in re

viewing counsel’ s conduc t, a “fa

ir assessment of attorney

performance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of counsel’s challen g ed conduct, and to evaluate the conduct from counse l’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, alone, support a claim of ineffective assistanc e. Defe

rence i s made totrial strat egy or tactica l choice s if

they are informed ones based upon adequate prepar ation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

The burden is on the petitioner to prove his grounds for relief by clear a nd convinc ing evidence. T .C .A. § 40-30-210(f). On appeal, we ar e bound by the trial cour t’s findings of fact unless we conclude that the evidence in the record preponderates against those finding s. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review the trial court’s conclusions as to whether counsel’s performance was def icient and whether that deficiency

was prejudicial under

a de novo standard with no presumption of correctness. Id. at 457.

The trial court obviously acc redited the petitioner’s trial attorney , who testified that he met with the petitioner at least eight times, obtained discovery, reviewed the pe titioner’s audiotaped statemen ts, interviewed the petitioner’s wife and employ er, and could not establish an alibi defense. Alth ough the petiti oner cla ims that his attorney

should hav e interv

iewed oth er poten tial witne sses, none of the se wit nesse s test ified at the evide ntiar y hearing. Without testimony from the w

itnesses, the petitione

r cannot demonstr ate that he was pr

ejudice d by

his attorne

y’ s failure to intervi ew them. See Black v . State , 794 S.W.2d 753, 757 (Tenn. Crim. App. 1990). Regarding the attorney ’s failure-5-

to file a motion for bill of particulars, the petitioner has presented no evidence that his attorney’s failing to file the motion changed the outcome of his ca se. Thus, he is not entitled to relief.

Based upon the foregoing and the re cord as a whole, we affirm the judg ment of the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE