# FILED
July 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON DECEMBERSESSION, 1996 WILLIE D. LOCUST, ) C.C.A . NO. 02C01-9 512-CC-00356 ) Appellant, ) ) ) DYER COUNTY VS. ) ) HON. JOE G. R ILEY STA TE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT : FOR THE APPELLEE : LANCE E. WEBB CHARLES W. BURSON P. O. Box 26 Attorney Gen eral and Repor ter Union City , TN 38061 ROBIN L. HAR RIS Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 PHILLIP BIVENS Distric t Attorney General KAREN WINCHESTER Assistant D istrict A

ttorney P. O. Box E Dyersburg, TN 38024

OPINION FILE D ________________________ AFFIRMED JERRY L. SMITH, JUDG E-2- 

## OPINION

Appellant Willie D. Locust appeals from the di smissal of his petition for post
convicti on relief. On Sep tember 28, 1993, a j ury found Appell ant guilty of one count of aggravated rape and one coun t of aggravated burglary. As a Range I standard offender, Appellant received concur rent sentences of twenty years impris onment for aggravated rape and four years impris onment for aggr avated burg lary. O n October 5, 1994, this C ourt affirmed the conv ictions and th e sentences of the tr ial court. See State v. Locust , No. 0 2-C- 01-940 4-CC -00075 , 1994 WL 536187 , at *2 (Tenn. Crim

. App. Oct. 5, 1994) , perm. app. denied , (Tenn. Jan 3, 1995) . On March 14, 1995, Appellant filed a pro se peti tion for p ost- convi ctio n reli ef, alleg ing in eff ecti ve assistance of coun sel and prosec utorial misconduct. After appoi ntment of counsel and an evidenti ary heari ng, the tri al judge di smissed the peti tion. In this appeal of that decision, Appellant a lleges that his pre-trial counsel and his trial counsel were ineffective and that

the indictment a gainst him w as defective.

For the reaso ns stated below , we affirm the dec ision of the post- convicti on court.
Factual Background On Ap ril 30 , 199 3, Bo bbie Evans and s evera l fri end s went to a b ar to have some drinks. She and her friends were g iven a ri de home by a man named William Birmingham. Mr. Birmi ngham accompanied M s. Evans bac k to her apart ment and stayed until approximately 4:45 a.m. Af ter Mr. Birmingham left, Ms. Evans fell asleep on her couch but was awakened by

Appellant. H e was naked and standing over her h olding a kni fe. Appellant threatened to kill her if she res isted. He the n raped her once on the couch and once i n the bedroom. Ms . Evans re ceived sev eral-3-

cuts and bruises in the process. Af ter these attacks, Appellant ordered her to make him a sandwi ch and then gave her his name and phone number before he le ft. Thirty minut es later, M s. Evans went to a neighbo r’s house and r eported the incident.
Appellant admitted to having sex w ith Ms. Ev ans but claimed t hat it was consensual. H e testified that s he called to hi m from her balcony when he was outside her apar

tment. Accordi ng to Appella nt’s ver sion of the event s, Ms. Evans asked him to find s ome marijuana for her and in return she would sleep wi th him.

I. Ineffect ive A

ssistance of Counsel Appellant all eges that pre -trial counsel’s repr esentation was deficient because he joined the staff of the distri ct attorney general. Appellant further alleges that trial counsel’s representation was deficient because counse l failed: (1) to raise and preserve for appellate review the allegati on that Mr. Bi rmingham had sex ual relations w ith the vi ctim prior to Appellant’s attack; (2) to adequately cross-examine the victim; (3) to raise important issues on appe al and to explain to Appellant his pro se briefing r ights; (4 ) to object t o inflammatory statements made by the prosecutor during cl osing; and ( 5) to secure a deoxyr ibonucleic ac id (DNA) comparison of the semen found in the v ictim wi th a blood sample fr om Appellant.

W hen an ap pea l cha llen ges th e Sixt h Ame ndm ent r ight t o ef fec tive assistance of counse l, the appellant has the bu rden of establishing that the advice given or services rendered by the attorney fell below the range of competen ce demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975). Under Strickland v. Washington , 466 U.S. 668, 687 (1984), there is a twoprong test w hich places t he burden on the appel lant to show that (1) the representation was deficient, requiring a showing that counsel made errors so-4-

serious that he or she was not functioningas “counsel” as guaranteed a defendant by the Six

th Amendment, and (2) the deficient re presentation prejudiced the defense to the point of depr iving the appellant of a fair trial w ith a relia ble result. Prejudice is shown by demonstrating a reasonable prob ability that, but for counsel’s unprofessional er rors, the r esult of the procee ding wou ld have been di fferent. Id. at 694. Under the Strickland test, a reviewing court’s scrutiny “must be highly deferential. It is all too temp ting for a defenda nt to second-guess counsel’s assistance after conviction or adverse sente nce . . . .” Id. at 689. In fact, a petitioner ch allenging his counsel’ s representati on faces a “stro ng presumption that counsel’s co nduct falls w ithin the w ide range of reasonable professi onal assistance . . . .” Id. at 689.

Bef ore a ddre ssin g the s ubst ance of A ppe llan t’s cl aim o f ine ff ecti ve assistance of coun sel, we r ecognizethat our scope of review is limited . In a petiti on for post -con victio n reli ef, the p etit ione r mus t est abli sh hi s or he r alle gatio ns by a preponderance of the ev idence. McBee v. S tate , 655 S. W.2d 191, 195 (Tenn. C rim. App. 19 83) (citin g Clenny v . State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978)). Further more, t he fin dings of fact m ade by a tri al judge in post-co nviction h earings are conclusive on appeal unless the ap pellate court finds that the evidence preponderates ag ainst the judg ment. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990).

A. Pre-Trial C ounsel’s Emp loym ent by the Distr ict A

ttorney General Appellant’s fir

st attorney

joined the staff of the di strict atto rney gene ral after he had represented Ap pellant at the preliminary hearing. Of course it is firm ly established, “ both in the Canons of Professional Ethi cs and by j udicial opin ions, that attorn eys canno t represe nt conf licting int erests o r undert ake to d ischarge inconsistent duties.” State v. Phi llips , 672 S.W.2d 427, 430 (Tenn. Crim. App

.-5-

1984). However, before l eaving t he public defender’ s office, pre-tr ial counsel informed Appellant t hat he would no longer be representingAppellant and that someone else in t he public defender’ s office would b e representinghim. Upon joining th e district

attorney g eneral’s office, pr e-trial counsel had absolut ely no involvement with App ellant’s cas e. In fact, Appell ant does not even allege that any confidential informat ion was pas sed or that any other impropr iety occur red. Under the circumstan ces, Appellant has failed to demonstr ate deficient perfor mance or any prejudice w ith respect t o this gr ound.

B. A lleged Prior

Sexual Relati ons of th e Victim Appellant all eges that tr ial counsel’ s performance was deficient becaus e he failed to raisethe question of the victi m’s alleged consensual sex ual relations with Mr. Birmi ngham the morningof the attack on the victim. Appellant seems t o be arguing that if the vi ctim consented to having sexual re lations w ith one man she must have consented to sexual relation s with Appellant. Appellant claims that this evidence was admissible to prove consent pursuant to Tennessee Rule of Evidence 412(c)(4)(iii), which provides that evidence of specific instances of sexual conduct wi th pe rso ns ot her than the a ccus ed are adm iss ibl e if: the e viden ce is o f a p atte rn of sexua l beh avior so dis tinc tive and so closely

resembling the accused’s version of the alleged encoun ter wit h the vict im that it tends to prove t hat the victim consented to the act cha rged or behaved in such a ma nne r as to lead the d efe nda nt to reas ona bly be lieve that the vic

tim consented.
The victim’ s alleged s exual rel ations wi th Mr. Bir mingham show absolutely

no resemblance to Appellan t’s version of the encounter. Th e victim and Mr. Birmingham had dated for years and were once engaged to b e married. On the night in qu estio n, they

had di scuss ed rene wingtheir relat ionshi p. Appe llant clai ms the victi m offered sex in exchange for drug s. Under the circumstances , any sex ual involvement with M r. Birming ham was inadmi ssible at tr ial. Thus, Appel lant has-6-

failed to demonstrat e any deficient performance on the par t of counsel or any prejudice to his defense.

C. Cross-E xamination of the Vict im Appellant next alleges that trial counsel was ineff ective in his crossexamination of the victim. Appellant arg ues that trial counsel failed t o question the victim abou t certain i nconsistenci es between pol ice reports and her trial testimony. After the vic

tim was r

aped, she went

to her neig hbor’s house to tell her w hat had happened. Her neighbor called the police and reported the inciden t. In the police repo rt, th e nei ghbo r is quo ted a s sayin g that the vi ctim was rap ed by a n unk nown assailant. I n the incident r eport, the v ictim stated t hat the assail ant forced her to have sex with hi m, ordered her t o make him a sandw ich, and then force d her to have sex again. In he r trial t estimony, thevictim c laimed that her assailant force d her to have sex twice and then ordered her to make a sand wich. The first inconsistenc

y to w hich Appellant points is a statement made by thevictim’ s neighbor and not the vi ctim herself. I n addition, the v ictim testi fied at trial t hat she had neve r seen or spoken t o Appellant before t he night of the r ape. The second all eged inconsistency carries no importance. Certainly, a variance in the order in which Appellant ordered the vict im to have sex and to fix a sandwic h would not destroy her testimony. Finally , from the record it appears that trial couns el conducted an exacting cross-examination, aski ng the vi ctim about several inconsi stencies between her t rial testi mony and her preliminary hearing testimony. Ev en assuming that counsel’s

cross-examination was deficient, Appell ant has failed to s how how the
resu lt of the t rial wo uld h ave be en di ff eren t abs ent t he al leged def icien cy.

D. Issues on Ap peal Appellant further

alleges t hat trial counsel failed to pr eserve and br ief important issues on appe al. Appellant also faults trial coun sel for not informing him-7-

of his pro se briefing r ights. The onl y issue not raised on di rect appeal, th at Appellant clai ms should have been, concerns is the admissi bility of the victi m’s prior sexual relations with Mr. Birmingham. W e have already found that this evidence was inadmis sible; therefore, Appellant’s contention is

without mer it. As for Appellant’s pro se briefing r ights, it is wel l establishe d that a crimi nal defendant cannot be repres ented by couns el and simultaneo usly proceed pro se . See , State v. Burkhart , 541 S.W.2d 365, 371 (Tenn. 1976). Beca use Appellant was proceeding with couns el on appeal he had no right to file a pro se brief. Appella nt has thus failed to demonstrat e any preju dice wit h respect to th is issue.
E. Prosecutor’s Closing Argument Appellant also alleges that trial couns el erred in failing to obj ect to inflammatory remarks made by the prosecution . During closing argument, the prosecutor stated that rape cases were “not ever going to be as clear as you would like, but that

they’re as clear as they get i n real life si tuations.” H e further stated, “And that’s what you have here. And you could well be involved in one of these situations yourself. This lady didn’t invite this. Thank you.” The prosecutor also made the followi ng statement about Appellant: “But we’re not accusing him of being smart. We’re accusing him of being dang erous.”
The general test to be applied t o alleged pr osecutorial misconduct duri ng final argument i s “whether the improper conduct could have affected the verdi ct to the prejudice of the de fendant.” Harring ton v. State , 385 S.W.2d 758, 759 (Tenn. 1965). In making that determ ination, we take into account the f ollowing factors:

1. The conduct comp lained of viewed in context and i n light of the fact s and circumstances

of the case. 2. The curative measures undert aken by the cour

t and the prosecu tion. 3. The intent of th e prosecutor in making the impr

oper statement.-8- 4. The cumulative effect of the improper conduc

t and any other

errors i n the record. 5. The relative strength or weakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App . 1976).

There is no doubt t hat the comment made by the prosecutor

during cl osing argument that “

you could well be involved in a situation li ke this yourself” was improper. Howeve r, it s eem s tha t the pros ecut or was t rying t o expl ain h ow dif ficu lt it i s to p rove the absence of con sent in many rape cases where the only witnesses are the victim and the accused. The prosecutor’s comment in this case is very similar to that fou nd in State v. Ashburn , were the prosecutor stated that “I hope that none of you al l are ever in this si tuation.” 914 S .W.2d 108, 115 (Tenn. Crim. App. 1995) . In Ashburn , this Court found that although t he prosecutor’ s comment was improper, it was harmle ss. Likewis e, we find that the prosecutor ’s comment, under the circumstan ces of this case , was harmle ss. Thus, no prejudice has been demonstrated from couns el’s failure to object.
The prosecutor’ s comment that the St ate was not accusing Ap pellant of being smart but was accusing him of being dangerous was made in response to defense counsel’s cl osing arg ument. In his cl osing, Appel lant’s tri al counsel argued that it w as very strange that Appellant had given his name and teleph one number to the victim before he left. He argued that a rap ist woul d not have done s uch a thing. The prosecutor’s

comment during rebuttal was a fair respon se to the line of argument that an intellig ent indivi dual would not have behaved as it was alleged A ppellant behaved.

F. DNA Testing-9- Finally , Appellant cl aims that tri al counsel was ineffective i n failing to o btain a DNA analysis from the rapekit performed on t he victi m. At trial, Appellant admitt ed to having s ex wi th the vic

tim but claimed that it wa s consensual. Appellant beli eves that the DNA analysis would prove that Mr. Birmingham had sex with the victim hours before the rape. As stated supra , any sex ual invol vement wi th Mr. Bir mingham was inad miss ible at Ap pell ant’ s tria l, th us a f ailu re to obta in a DN A ana lysis c ould not h ave prejudiced Appel lant.
II. Sufficiency of the Indictment Appellant nex

t contends that because the indict ment fails to statethe requis ite mens rea for the cr ime of aggrav ated rape, the in strument is fatal ly defective. He reli es upon State v. Hill , No. 0 1C01- 9508-C C-002 67, 1996WL 346941, at * 3 (Tenn. Crim

. App. June 20, 1996), perm. app. granted , (Tenn. Jan. 6, 199 7). In Hill , this Court held that the failure t o allege the mens rea or cul pable mental state in a prosecuti on for aggravated rape rendered the indictment fatally defectiv e.

After Hill was deci ded, a panel of this Court held that if the statute under

which a defendant is prosecuted does not allege a specif ic mens rea, failure to allege a culpab le mental state in t he indictment does not inval idate the indic tment. State v. Di son , No. 03C01-9602-CC-00051, 19 97 W L 36844 (Tenn. Crim. App . Jan. 31, 1997). As this Court said i n Dison ,

When the legislature negl ects to incl ude the requi site mental state in the defini tion of an offense, permitti ng the application of any one of three mental states set f orth in Tenn. Code Ann. § 39- 11-301(c), an allegatio n of criminal conduct wi ll prov ide the accused constitutional ly adequat e notice of the facts co nstituting the offense. Id . at *9.
Both the Tenne ssee Constitution and the Unite d States Constitution require fair and reasonable noti ce of the charges against a defendant

. See U.S. Const. amend. VI;-10-

Tenn. Const. art. I, § 9. In Tenness ee, an indictment serves to (1) inform the defendant of the precise ch arges, (2) enable the tri al court upon conviction to enter an approp riate judgment and sent ence, and (3) pr otect the defendant ag ainst double j eopardy. State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated in ordinary and concise language so that a person of “common understand ing” will know w hat is intended. Warden v. State , 381 S.W .2d 244, 245 (Tenn . 1964).

In this case, the indictment al leged that Appel lant unlaw fully and w ith force or coercion sex ually penetr ated the vic

tim whil e armed wit h a weapon in violatio n of Tennessee Code Annotated Section 39-13- 502. The legis lature has fail ed to provi de for any specific mens rea und er Section 39-13-502. The refore, under Dison , the indi ctme nt is n ot f atal ly def ecti ve sin ce it a llege d crim inal cond uct s uff icien tly to give Appellant notice of the charges against him. Moreover , the indictment informed Appellant of the p recise charge against him and used ordinary and concise lan guage so that a person of com mon understanding would know what was intended. The trial cou rt was able t o enter the approp riate judg ment and sentence, and the allegati ons protected Appellant agai nst any subs equent prosec ution for the same offense. A ppellant is not entitled to relief on this i ssue.
We conclude that Appellant was not denied effective assistance of counsel nor was the in dictment defective. The judgment of the post-convi ction court i s affirmed.

____________________________________ JER RY L

. SMI TH, JUD GE

CONCUR:

___________________________________-11-

JOE B. JONE S, PRES I DI NG JU DGE

___________________________________ JOSE PH M. TI PTON, JUD GE