IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON DECEMBER 1999 SESSION

JOHN MALCOL M JOHNSON, * C.C.A. No. W1999-00679-CCA-R3-PC

Appellant, * TIPTON COUN TY VS. * Joseph H. W alker, III, Judge STATE OF TENN ESSEE, * (Post- Convic tion Rel ief) Appellee. *

FOR THE APPELLANT : FOR THE APPELLEE : FRANK DESLAURIERS PAUL G. SUMMERS P. O. Box 1156 Attorney General & Repor ter Covington, TN 38019 KIM R. HELPER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General DEBORAH ALSUP Assistant District A

ttorney P. O. Box 790 Somerville, TN 38068-0790

OPINION FILED: _______________
AFFIRMED JOHN EVERETT WILLIA MS, Judge


### OPINI ON

INTRODUCTION The petitioner, John Malcolm J ohnson, appeals from the trial court’s order, entered after a hearing, denying hi s petition for post-convi ction relief. The petitioner
was convic ted o f one count of rape of a child by a Tipton County jury. He was 

# FILED
February 10, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk-2- sentenced as a Range I Offender to 15 years in the Department of Correction. O n direct appeal, his conviction was affirmed. At post-conviction, he now argues that he received ineffective ass istance of counsel at trial and therefore seeks a new trial. After careful review, we AFFIRM the denial of the trial court.

BACKGROUND
Fo r the purposes of this appeal, w e set forth the facts as outlined by th e petitioner. On the morning of November 9 , 1996, the petitioner’ s wife saw her 11 year old daughter “straddling” her nude husband in the livingroom of their house. She was “straddling”

the petitione r’s feet and was not wear ing underwear. The petitioner’s penis was partially erect and, according to the wife, “looked like [it] had slipped out of her.”
Investigating

the wife’s report, Officer Gamblin of the C ovington Police Departmentquestioned the petitioner on November 11, 1996. The petitioner during this questioning admitted to bei ng with his daughter on the couch und res sed but denied any act of penetration.

The petitioner’s wife and the victim ga ve stateme nts to the police; their statements were incon sistent w ith those of the petitioner. At t rial, the daughter testified that the petitioner’s penis was “a little bit” inside her vagina. On the basis of her testimony, that of the w ife, and certain admissions of the petitioner, the jury convicted the petitioner of one count of rape of a child.

In the instant appeal, the petitio ner argues that at this trial, his counsel was ineffe ctive in failing to c all a cer

tain witness, Nurse Sandra Anderson of the Memphis Sexual Assault Resource Center. Anderson examined the victim approximately two days after the inci den t. She found evidence of tears in the victim’s hymenal lumen, consistent w ith some form of penetration. When taking the daughter’s history, Anderson noted that according to the mother, the daughter had stated that the petitioner dig itally penetrated her and did not mention his penis.-3- Anderson, however, did not testify at trial. Defense counsel f ailed to subpoena her; instead, counselwas relying on the state’s subpoena of Anderson. This reliance proved mis placed when the state released Anderson without havi ng called her. On this basis, the petitioner alleged ineffective assis tance of counsel at post-conviction.
The post-conviction court conducted a hearingon this claim and heard the testimony

of Anderson, consistent with that described above, and the testimony of the petitioner’s t rial counsel, David Stockton. Counsel testified that Anderson’s testimony

would have been crucial in impeaching the testimony andcredibility of the daughter.

After hearing this testimony, the trial court denied the petition, stating that the proof was clear and convi ncing th a t “trial counsel proper ly investigated the case, conferred with petitioner, adequately prepared for trial, and was comp etent through all stages of the trial.”

From this ruling, the petitioner now appeals.

ANALYSIS
The petitioner asserts that he received ineffecti v e assistance at trial; specifi cally, he alleges that trial c ounsel was ineffective in failing to subpoena and call Nurse Anderson. This Court reviews a c laim of ineffective assistance of counsel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984). The petiti oner has the burden to prove that (1) the attorney’s per

formance was deficient, and (2) the deficientperformance resulted in prejud ice to the petitioner so as to deprive him of
a fair trial. See Strickland at 687, 104 S.Ct. at 2064; Goad v. State , 9 38 S. W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990).
In Tennessee, the test for determin ing whethe r counsel provided e ffecti ve assistance is whether his performanc e was within the r

ange ofcom petence demanded of attorneys in criminal cases. See Baxter , 523 S.W.2d at 936. The petitioner

must overcome the presumption that cou nsel’s conduct falls wi thin the1 See Tenn. Code A nn. § 39-13-522, -501(7). -4- wide range of acceptable professional assis tance. Strickland , 466 U.S. at 689, 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 a def iciency, a petitioner must show th at counsel’s acts or omiss ions were so serious as to fall below an objective standard of reaso nableness under prevaili ng professional norms. Strickland , 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997); Goad , 938 S.W.2d at 369.

In reviewing couns

el’s conduct, a “fair asses smen t . . . requires that every effort be made t o eliminate the distorting effects of hindsight, to reconstr uct the circumstances

of counsel’s challenged condu ct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense doe s n o t, stand ing alo ne, establish unreasonable rep resentation. However, deference to matters of strategy and tactical choices appli es o nly if the choices are i nformed
ones based upon adequate 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, 52 8 (Tenn. Crim. App. 1992).
Assuming arguen do that t rial co unsel’s fa ilure to subpoenaa “crucial” witness
was ineffective, we revi ewfor prejudice. In this case, the petitioner ’s theory is that the testimony of Anderson, whi le consistent with r eports of penetration and consistent with the conv icted offense, 1 ” would nevertheles s have proven powerful in undermining the credibil ity of the victim and thus in casting doubt in the minds of the jurors.” This Court acknowledges that the credibility of the v ictim is an essential eleme nt of this case; however,we are unpersuaded by the petitioner’s argument and find no prejudice sufficient fo r reversal.

Read in any light, Anders on’s testimony

is consistent with the state’s theory of t he case. She testified to evidence of penetr ation, and Anderson’s record ed historyreports tha

t such penetr

ation was c

aused by the

petitioner . Th e f act that digital, a nd not penile, penetration w as reported in her notes is not cause for-5- disbelieving

the testimony of the victim. However, beyond this one discrepancy, the petitioner

can claim no value in Anderson’s testimony. In fact, Anderson’s notes do reflect that the victim’s mother said that it looked like her husband was hav ing sex with th e victim. Whatever the case, her testimony, taken as a whole, clearly supports the state’s case. Whateverimpeachment value the petitione r perceives therein is, at best, minimal and certainly do es not rise to the level

contemplated by Strickland and required for rever sal.

CONCLUSION
Accordin gly, we AFFIRM the trial cour t’s order denying th e petition for postconvic tion re lief.

_______________________________ JOHN EVERETT W ILLIAMS, Judge
CONCUR:

_______________________________ GARY R. WADE , Presiding Judge

_______________________________ NORMA McGEE OGLE, Judge