IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 7, 2005 Session

CHARLES GOODE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26257 Arthur T. Bennett, Judge

No. W2004-01577-CCA-R3-PC - Filed October 25, 2005

Petitioner, Charles Goode, appeals the trial court’s dismissal of his petition for post-conviction relief.

In this appeal, Petitioner argues that his counsel’s representation at trial was deficient because he

failed to adequately investigate Petitioner’s case and failed to effectively cross-examine the victim.

After a thorough review of the record, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL,J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN

E. GLENN, JJ., joined.

R. Price Harris, Memphis, Tennessee, for the appellant, Charles Goode.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;

William L. Gibbons, District AttorneyGeneral; and Lee Coffee, Assistant District Attorney General,

for the appellee, the State of Tennessee. 

OPINION

Following a jury trial, Petitioner was convicted of aggravated rape and was sentenced to

twenty-five years in the Tennessee Department of Correction. This Court affirmed Petitioner’s

conviction and sentence in State v. Charles Goode, No. W2000-02267-CCA-R3-CO, 2001 WL

1042145 (Tenn. Crim. App., at Jackson, Sept. 10, 2001), perm. to appeal denied (Tenn. Dec. 31,

2001). The facts surrounding the offense were summarized by this Court as follows:

In March 1999 Elizabeth Reed, the victim, was a resident of Mid-South Christian

Nursing Home in Shelby County, Tennessee. She was seventy (70) years of age and

had been crippled since birth due to cerebral palsy. Although she was able to feed

and partially dress herself, she was not able to move on her own. She also could not

participate in general activities, and was physically helpless. She had never lived

alone, residing at home until her mother's death in 1980, and at Mid-South since that

time.
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The defendant was a charge nurse at Mid-South, and was one of several persons who

regularly provided care to the victim. The victim testified that on the night of March

30, 1999, as she sat watching television, the defendant entered her room and

announced that it was time for bed. He then lifted the victim, placed her in her bed,

stripped her of her clothes, climbed on top of her, and digitally penetrated her vagina,

causing her to bleed profusely. During these events he also kissed the victim on the

mouth and told her he loved her. The victim testified that she did not consent to any

of the defendant's actions.

At the conclusion of these events the defendant observed that the victim was

bleeding, but told her that she would be all right. He began to change her bed linens,

but was interrupted when another caregiver entered the room. He left without

treating her injuries.

Roosevelt Nelson [“Rose”], a caregiver at the nursing home, testified that on March

30, 1999, [s]he was making regular rounds. When [s]he first entered the victim's

room, the defendant, a nurse, was also in the room. He was stripping linens from the

bed, a task he did not usually perform. Nelson offered to complete the task. The

defendant accepted the offer and left the room. He offered no explanation about why

the patient was bleeding.

Nelson stated that when [s]he entered the victim's bedroom [s]he was "kind of

shocked,” apparentlybecause of the blood [s]he observed. Nelson took the victim out

of bed, placed her in a wheelchair, and took her into the bathroom. The victim

seemed unwilling to have Nelson touch her. Nelson observed that the victim was

bleeding, and [s]he was unable to stop the flow of blood even after [s]he cleaned her.

[S]he placed a pad on her to contain the bleeding.

When Nelson returned the victim to the bed and continued to change the bed linens,

[s]he noticed that the fitted sheet normally placed over themattress had been replaced

by a flat sheet. The blue pad normally placed across the bed on top of the draw

sheets was located under the flat sheet covering the mattress, and was soiled with

blood.

Nelson then found the defendant, advised him that the victim was in pain, and asked

him to administer pain medication. The defendant responded that he already had

given her medication. The defendant did not provide any information about the

victim's injuries.

Later the same evening the victim was hospitalized because of her injuries. She

continued to bleed from her vaginal area.
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Marie Fizer, the victim's older sister, testified that she was called about midnight and

told of her sister's hospital admission. Because she did not drive at night, she was

unable to get to the hospital until the next morning. When she did arrive, she found

that the victim was very upset. The victim remained in the hospital for four days, and

then was moved to a different nursing home because she was afraid to return to MidSouth.

Sally DiScenza, a forensic sexual assault nurse, was called to examine the victim one

day after the assault. She testified that she observed an acute, recent hematoma

around the vaginal area, and bruising on the upper inner thighs. The victim also had

an acute laceration in the inner labia and vulva, caused by a sharp object. The victim

stated that the defendant had digitally penetrated her. As a post-menopausal woman

the victim was more prone to injury due to a lack of estrogen. Ms. DiScenza testified

that the victim's injuries were definitely caused by trauma, and were consistent with

sexual penetration. She also noted that although the victim was physically limited,

she was alert, oriented, cooperative, and able to describe what had happened to her.

Ruth Boring, former charge nurse at the Mid-South Christian Nursing Home,

testified for the defense. She stated that on approximately fifteen occasions over two

or three years she had observed the victim engaged in sexual masturbation using the

bristle end of a hairbrush. She acknowledged that she did not record or report these

incidents to anyone at the time she observed them. She stated that she wished to

preserve the victim's privacy. Boring also admitted that the victim had never

exhibited any visible problems with her vaginal area. She acknowledged that she

was fired from her position at Mid-South before this incident occurred.

Goode, 2001 WL 1042145, at *1-2.

I. Post-Conviction Hearing

Dr. Elbert Hines testified that he was the medical director of the Mid-South Christian

Nursing Home at the time of the offense. His responsibilities included overseeing the patients’

general health needs and treating them in time of acute illness. Dr. Hines said that he had known the

victim for five years, and that he medically evaluated her at least once every sixty days. Dr. Hines

said that the victim had suffered a fractured orbit when she fell out of her wheelchair in January

1999, but his records did not indicate any falls in March 1999, the date of the offense.

Dr. Hines was not on call when the victim was admitted to the hospital on March 30, 1999,

but he saw the victim the following day. The victim told Dr. Hines that she had been sexually

assaulted at approximately 10:00 p.m. the previous evening. The victim said that Petitioner had

digitally penetrated her and caused her pain. Dr. Hines said that the victim had a two-inch laceration

in the vaginal area and bruising which was consistent with a sexual assault. 
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Dr. Hines said that the victim had frequent urinary tract infections. Dr. Hines agreed that

urinary tract infections could cause bleeding, but he could not recollect whether the victim had

experienced bleeding as a result of her infections. Dr. Hines said that a Foley catheter had been

inserted into the victim by the time he examined her, but the laceration was located one-half to one

inch away from the catheter. Dr. Hines recalled that a medical report done at the time of the victim’s

admission to the hospital noted that the victim had also complained of rectal bleeding.

Dr. Hines said that he never talked to anyone from the public defender’s office prior to trial.

He did not remember, however, telling Lynn Davis, the director of nursing at the nursing home, that

he had any doubts about the victim’s explanation for her injuries.

On cross-examination, Dr. Hines said that the victim was bleeding profusely in the vaginal

area at the time of her admission which was not consistent with the insertion of a catheter or any

medication she was taking. Dr. Hines noted in his report that he did not believe that the victim’s

injuries were self-inflicted or could have been caused by a fall. Dr. Hines said the laceration was

about two inches long and would have been too painful for the victim to inflict upon herself.

On redirect, Dr. Hines agreed that it was impossible to tell whether the bruises and laceration

were incurred at the same time. He said that the victim had difficulty coordinating her movements.

Sally DiScenza, a nurse at the Sexual Assault Resource Center, saw the victim on March 31,

1999, at the request of the Memphis Police Department. She said that a rape kit was usually not

prepared when the sexual abuse allegation was based on digital penetration. Ms. DiScenza said that

she did not speak with anyone from the public defender’s office prior to testifying at trial. On crossexamination, Ms. DiScenza said that the victim told her that Petitioner had penetrated her with his

penis and ejaculated on March 26, 1999, but the incident was too far removed to be able to collect

a sperm sample.

Petitioner said that he met with his counsel three or four times prior to trial. Petitioner said

that counsel was not always on time for the meetings, and occasionally would miss a meeting.

Petitioner said that he gave his counsel a list of witnesses, but counsel did not interview them.

Petitioner said that Marilyn Malone, Loyce McCarthy and Judith Branch could have testified as

character witnesses. He conceded, however, that none of them knew anything about the incident.

Petitioner said that his counsel should have looked at his employment records and talked with other

employees. Petitioner said that his counsel was not forceful enough during his cross-examination

of the victim.

On cross-examination, Petitioner testified that he made the decision not to testify at trial

because he felt that the jury had alreadymade up its mind to return a verdict of guilty. Petitioner said

that all of the State’s witnesses lied at trial, but he did not know why they did so. 
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On redirect, Petitioner said that the victim often told “wild tales.” He said that it made it

appear that the victim could not walk when she testified from her wheelchair. Petitioner said that

the victim could walk, and she “[put] on a good show” at trial.

Petitioner’s counsel testified that he had been practicing law for twenty-two years, mostly

with the public defender’s office. He was Petitioner’s third counsel, and began representing him on

August 18, 1999. Counsel said that the State provided him with its discovery material, and he gave

Petitioner copies of the documents.

Counsel said that he did not interview Ms. DiScenza prior to trial because he knew the scope

of her testimony from her medical report. He said that a rape kit was not warranted when the sexual

abuse was digital penetration. Counsel said that he interviewed the witnesses Defendant suggested,

and Ms. McCarthy and Ms. Branch were not on the list. If they had been, he would have interviewed

them. Ms. Boring was adamant that she had seen the victim masturbating with a hairbrush, so

counsel felt that he had to put her on the stand. Counsel said that he sensed some hostility from the

jurors during Ms. Boring’s testimony. Counsel interviewed Ms. Malone who said that she had not

seen anything occur in the victim’s room on March 30, 1999. Moreover, Ms. Malone said that Ms.

Boring’s masturbation story was “preposterous,” so counsel decided not to call her as a witness.

Counsel said that Petitioner told him that Petitioner had not seen the victim masturbating.

Ms. Boring explained that she did not record the incidents on the victim’s chart because she was

afraid the victim’s family would be upset if she did. Counsel said he did not ask for the victim’s

medical records because Petitioner told him there was nothing in the records to confirm Ms. Boring’s

testimony. 

Counsel met more than thirteen times with Petitioner’s wife. Counsel said she dropped by

his office so frequently he stopped recording her visits. When counsel’s investigator tried to

interview Ms. Goode, however, her daughter became hysterical. Ms. Goode’s daughter said that

Petitioner had sexually abused her when she was ten. Counsel believed that the daughter had spent

approximately six months in foster care as a result of the allegations, although Petitioner was never

charged with sexual abuse.

Counsel said that according to hisrecords he met with Petitioner thirteen times prior to trial.

He said that the State offered to recommend a sentence of twenty years at 100% in exchange for a

plea of guilty. Counsel suggested to Petitioner that they counter the State’s offer with an agreement

to plead guilty to the lesser offense of aggravated sexual battery in exchange for a sentence of eight

years. Petitioner did not authorize the “counteroffer” and decided to proceed to trial.

Counsel said that he did not feel it was necessary to interview Dr. Hines prior to trial because

he knew the scope of his testimony from his medical reports. Moreover, Dr. Hines’ report referenced

other sexual abuse allegations by the victim against Petitioner, and he wanted to avoid opening the

door to that testimony.
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Counsel said that he sent two letters to the district attorney’s office requesting the victim’s

latest address so that he could interview her before trial. He made three attempts to conduct the

interview but was refused access to the victim by the victim’s niece. On two different occasions

Counsel viewed the videotape of the victim’s deposition which was taken in connection with her

civil lawsuit against the nursing home so that he could get a feel for how the victim would handle

herself at trial.

The victim testified at trial from her wheelchair. Counsel described the victim as “pitiful,”

and it was “tortuous” for her to testify. During cross-examination, he attempted to ask background

questions in order to establish that the victim had some manual dexterity which would support

Petitioner’s defense that the victim’s injuries were self-inflicted. He said that he asked the victim

what types of activities she liked to engage in at the nursing home, and the victim responded that she

enjoyed reading her Bible. After that, counsel felt it was prudent not to continue this line of

questioning, and he concluded his cross-examination a short time later.

On cross-examination, counsel said that he was not aware that another male nurse was

working on the victim’s floor at the time of the offense. Nor was he aware that Lynn Davis, the

director of nursing at the nursing home, apparently made a note in her records that Dr. Hines, during

a conversation on April 1, 1999, expressed some doubt about the victim’s explanation of how she

was injured. Counsel said, however, he would still not have called Dr. Hines as a witness because

of the references to other incidents of sexual abuse in his notes. Counsel was also not aware that

Kammie Glen said she was working the same shift as Petitioner on March 30, 1999, and that she saw

nothing unusual occur that night. Counsel was not aware that Roosevelt Nelson [“Rose”] had

actually made two reports about the incident, instead of just one. He said that both reports, however,

were consistent with each other and consistent with Ms. Nelson’s testimony at trial.

Counsel said that he did not remember that the victim said during her deposition that the

nursing home had a dog, even though the nursing home did not own any dogs. Counsel agreed that

he was aware that the victim’s description during the deposition of other incidents of sexual abuse

allegedly committed by Petitioner did not match her description of the alleged digital penetration.

Counsel observed, however, that he did not want to open the door to the fact that the victim had

testified in her deposition that Petitioner had penetrated her once anally, and made her perform

fellatio twice prior to the March 1999 incident. Counsel said that he did not review the nursing

home’s records or the victim’s medical chart.

The post-conviction court ruled from the bench at the conclusion of the evidentiary hearing.

Based on the evidence heard, the court found that counsel rendered effective assistance and denied

Petitioner’s request for post-conviction relief.

II. Standard of Review

Petitioner argues that the trial court erred in finding that counsel’s assistance before and

during trial was effective. Specifically, Petitioner contends in his appeal that counsel failed to
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articulate a “good reason” why he did not call Dr. Hines as a defense witness or why he did not use

the victim’s deposition to demonstrate her senility and the inconsistencies in her descriptions of the

types of alleged sexual abuse. Petitioner also contends that counsel was ineffective for failing to

request the personnel files of the other employees, for failing to bring out that the victim complained

of rectal, not vaginal, bleeding when she was admitted to the hospital, for failing to more vigorously

cross-examine the victim, and for failing to discover an alternative theory as to how the victim was

injured on March 31, 1999.

A petitioner seeking post-conviction relief must establish his allegations by clear and

convincing evidence. Tenn. Code Ann. § 40-30-210(f) (2003). However, the trial court’s

application of the law to the facts is reviewed de novo, without a presumption of correctness. Fields

v. State, 40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is

a mixed question of fact and law and therefore also subject to de novo review. Id.; State v. Burns,

6 S.W.3d 453, 461 (Tenn. 1999).

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must establish that counsel’s performance fell below “the range of competence

demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In

addition, he must show that counsel’s ineffective performance actually adversely impacted his

defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674

(1984). In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this

Court will not second-guess counsel’s decisions regarding trial strategies and tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a

particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged

from counsel’s perspective at the point of time they were made in light of all the facts and

circumstances at that time. Id. at 690, 104 S. Ct. at 2066.

A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on

a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

That is, a petitioner must not only show that his counsel’s performance fell below acceptable

standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either

prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the

components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at

2069.

Petitioner initially argues that the analysis in United States v. Cronic, 466 U.S. 648, 104 S.

Ct. 2039, 80 L. Ed. 2d 657 (1984), not Strickland, governs his ineffective assistance of counsel

claim. That is, Petitioner contends that his counsel’s representation was so deficient that there was

“an actual breakdown of the adversarial process during the trial of [his] case,” and prejudice is thus

presumed. Id., 466 U.S. at 657-58, 104 S. Ct. at 2046. In Cronic, the Supreme Court held that
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[t]he right to the effective assistance of counsel is thus the right to require the

prosecutor’s case to survive the crucible of meaningful adversarial testing. When a

true adversarial criminal trial has been conducted – even if defense counsel may have

made demonstrable errors – the kind of testing envisioned by the Sixth Amendment

has occurred. But if the process loses its character as a confrontation between

adversaries, the constitutional guarantee is violated.

Id., at 656-657. The Cronic Court acknowledged that there are some “circumstances that are so

likely to prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.” Id. at 658. Most notably, prejudice may be presumed when an accused is completely

denied access to an attorney or when the accused’s attorney is prevented from assisting the accused

“during a critical stage of the proceeding.” Id. at 659 n.25.

The Supreme Court later clarified that “[w]hen we spoke in Cronic of the possibility of

presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that

the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 686-87, 122 S. Ct. 1843, 1851,

152 L. Ed. 2d 914 (2002); see also Bell v. Quintero, ___ U.S. ___, 125 S. Ct. 2240, 161 L. Ed. 2d

506 (2005); Wallace v. State, 121 S.W.3d 652 (Tenn. 2003). Where a petitioner’s complaints are

based on specific errors that are sporadic in nature, rather than complete, then counsel’s performance

is subject to Strickland’s two-prong test based on performance and prejudice. Cone, 122 S. Ct. at

1851-52; Wallace, 121 S.W.3d at 660.

In the instant case, Petitioner does not contend that his counsel did not mount a defense,

interview witnesses, or cross-examine the State’s witnesses. The gist of his argument instead is that

counsel did not do some of these activities well. Because Petitioner has failed to demonstrate that

his counsel’s failure was complete, we will analyze Petitioner’s claims under the Strickland test for

“actual prejudice.” See Quintero, 125 S. Ct. at 2241-2242; Cronic, 466 U.S. at 659 n.26, 2039 S.

Ct. at 2047 n.26.

III. Failure to Investigate

Petitioner contends that counsel’s assistance was deficient because he failed to interview Dr.

Hines or Ms. Davis, and he thus was unaware that the victim had a history of urinary tract infections,

that she complained of rectal bleeding when she was admitted to the hospital, and that Dr. Hines had

expressed doubts as to the victim’s explanation of the cause of her injuries. Petitioner argues that

if counsel had done a more thorough investigation of the victim’s medical history, he might have

been able to launch a more effective defense. For example, Petitioner contends “that this

information would have allowed trial counsel to argue that the injuries were also consistent with

other explanations. . . such as that the victim personally scratched her vaginal area to try to alleviate

the itching and burning caused by a urinary tract infection.”

We begin this analysis by noting that “[s]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices
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made after less than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation. In other words, counsel has a duty

to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066. 

Counsel testified that he reviewed Dr. Hines’ medical report concerning his examination of

the victim after she was admitted to the hospital. The report was consistent with Ms. DiScenza’s

findings and the victim’s allegations. Counsel said that Dr. Hines’ report also noted that the victim

alleged that Defendant had sexually abused her in the past, and counsel felt that Dr. Hines’ potential

testimony at trial would have been detrimental to Petitioner’s defense. Counsel said that he was

“pleasantly surprised” that the State did not call Dr. Hines as a witness during its case-in-chief.

Counsel said that it would not have been beneficial to bring to the jury’s attention that the victim had

apparently also complained of rectal bleeding on March 30, 1999. 

At the post-conviction hearing, Dr. Hines said that it was his opinion that the laceration on

the victim’s vagina was not self-inflicted, nor was it caused by the insertion of the catheter. Dr.

Hines agreed that the victim was prone to urinary tract infections, but he could not recollect if she

had ever bled as a result of an infection. Dr. Hines said that the victim’s profuse bleeding at the time

she was admitted to the hospital was not consistent with any of her medications or the insertion of

a catheter.

In light of Dr. Hines’ testimony at the post-conviction hearing, we fail to see how Petitioner

was prejudiced by counsel’s decision not to call Dr. Hines as a witness. Dr. Hines adamantly denied

that the victim’s injuries were self-inflicted, which is the only theory of defense suggested by

Petitioner. Nor has Petitioner demonstrated that he was prejudiced by counsel’s failure to investigate

the victim’s complaint of rectal bleeding when she was admitted to the hospital. During her

deposition, the victim testified that “he put that thing in my mouth two times,” and “he tried to put

that thing in my tail hole.” Counsel’s decision to not pursue the victim’s complaint on March 30,

1999, of rectal bleeding was reasonable in light of the facts and circumstances of the case at the time

counsel was developing his trial strategy.

Petitioner contends that counsel’s assistance was ineffective because he failed to call Ms.

McCarthy, Ms. Branch and Ms. Malone as witnesses. Petitioner also argues that counsel should

have discovered that Kammie Glen, an employee of the nursing home, said that she did not see

anything unusual happen during her shift, and that another male nurse was working on the victim’s

floor that night. Petitioner contends that Ms. Davis would have testified that Dr. Hines expressed

doubts about the victim’s explanation for her injuries.

Petitioner’s counsel said that Petitioner did not include Ms. McCarthy and Ms. Branch on

the witness list he gave to counsel. Counsel said he interviewed Ms. Malone. Ms. Malone had not

seen anything occur in the victim’s room on March 30, 1999, and adamantly considered the

masturbation theory “preposterous.” Counsel said he attempted to interview the nursing home’s

director, but was unsuccessful.
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When a petitioner contends that his trial counsel failed to discover, interview or present

witnesses in support of his defense, these witnesses should be presented by the petitioner at the postconviction evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This

is generally the only way to show that the failure to identify or interview witnesses resulted in the

denial of evidence which prejudiced the petitioner. See id. None of these potential witnesses

testified at the post-conviction hearing. In addition, Petitioner concedes that neither Ms. Branch, Ms.

McCarthy nor Ms. Malone knew any information about the incident giving rise to the charges. Ms.

Malone’s view that Petitioner’s theory of defense was “preposterous” would certainly have been

detrimental. Petitioner has failed to demonstrate that he was prejudiced by counsel’s failure to call

these people as witnesses at trial.

Petitioner also suggests that counsel could have discovered whether the victim had lodged

similar complaints against other male employees or whether she was prone “to create dramatic

stories.” Petitioner also argues that there were other employees at the nursing home on March 30,

1999, who did not notice anything unusual occur in the victim’s room. Petitioner did not offer any

proof at the evidentiary hearing that the victim had made other complaints prior to the incident, nor

did he offer the testimony of any of the other employees at the nursing home at the evidentiary

hearing. We conclude that the evidence does not preponderate against the trial court’s finding that

Petitioner failed to show that his counsel’s assistance in this regard was ineffective.

Petitioner relied on the victim’s description of a nonexistent dog at the nursing home during

her deposition in her civil litigation as evidence of the victim’s senility. Petitioner contends that the

victim’s testimony during her deposition in her civil case “differs somewhat from the story she told

during the criminal trial” and thus could have been used for impeachment purposes.

In her deposition, the victim graphically described numerous incidents of sexual abuse

allegedly engaged in by Petitioner other than the incident giving rise to the charges. Counsel

testified at the post-conviction hearing that he did not believe that Petitioner’s defense would be

benefitted by bringing these allegations to the attention of the jury through the victim’s crossexamination. On appeal, this Court may not second-guess the tactical or strategic choices of counsel

unless those choices are based upon inadequate preparation, nor maywe measure counsel’s behavior

by “20-20 hindsight.” See Hellard, 629 S.W.2d at 9. Moreover, in light of the victim’s testimony

during her deposition, we fail to discern how Petitioner was prejudiced by his counsel’s decision not

to use the victim’s prior testimony for impeachment purposes.

Petitioner contends that counsel should have investigated further to develop an alternative

theory of defense. Petitioner does not specifically define those alternatives other than presenting

evidence that the injury was self-inflicted. "The reasonableness of counsel's actions may be

determined or substantially influenced by the defendant's own actions or statements." Strickland,

446 U.S. at 691, 104 S. Ct. at 2066. Counsel’s choice of defense was based on Petitioner’s witness,

Ms. Boring, who testified that she had seen the victim masturbating with a hairbrush prior to the

commission of the offense. The fact that the jury did not find Ms. Boring’s testimony credible does
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not render counsel’s decision ill-advised when viewed under the circumstances present at the time

of trial. Hellard, 629 S.W.2d at 9-10. Petitioner is not entitled to relief on this issue.

IV. Failure to Effectively Cross-examine the Victim

Petitioner contends that counsel’s conduct was below the standard demanded of criminal

attorneys when he failed to vigorously cross-examine the victim. Petitioner argues that counsel

should have demonstrated to the jury that the victim could be led during her testimony and that she

was given to “flights of fancy.”

Counsel testified at the evidentiary hearing that the victim testified from her wheelchair. The

victim was able to answer questions posed to her, but her communication was “tortuous.”

Nonetheless, counsel attempted during cross-examination to show that the victim had sufficient

manual dexterity to masturbate. He asked her what activities she enjoyed, and the victim responded

that her favorite activity was reading her Bible. Counsel said that he did not pursue this line of

questioning any further because he feared it would only increase the jury’s sympathy for the victim.

Petitioner’s allegations concerning counsel’s cross-examination relate to matters of trial

strategy or tactics. “Counsel has some discretion in conducting the defense and is entitled to use his

best judgment in matters of trial strategy or tactics.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn.

Crim. App. 1991) (citing McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim. App. 1983)). The

evidence does not preponderate against the trial court’s finding that Petitioner failed to prove that

his counsel’s assistance during the victim’s cross-examination was ineffective.

CONCLUSION

In view of the foregoing, we affirm the judgment of the post-conviction court.

___________________________________ 

THOMAS T. WOODALL, JUDGE