# FILED
June 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE AU GUST 1996 SESSION

RICKY TRIC E, ) ) Appellant, ) No. 01C01-9511- CR-00370

) ) Davidson C ounty v. ) ) Honorable J. Randall Wyatt, Jr., J udge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. ) For the Appell ant : For the Appell ee : Monte D. Watkins Charles W. Burson 176 2nd Avenue N orth Attorney Gen eral of Tennessee Nashvil le, TN 37201 and Cyril V. Fraser Counsel for the St ate 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Victor S. J ohnson, III Distric t Attorney General and Nicho las B aile y Assistant D istrict A

ttorney Gener

al W ashington Square Suite 500 222 2nd Avenue N orth Nashvil le, TN 37201-1649

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, R icky Tri ce, appeals as o f right from the D avidson Co unty Criminal C ourt’s deny ing him post- convicti on relief. The peti tioner is pr esently se rving concurrent twenty-five year sent ences in the D epartment of Corre ction for his t wo 1990 convicti ons for aggr

avated rape of hi s preschool- age daughter . He contends t hat he received the ineffective as sistance of appell ate counsel and th at plain err or occurred through the s tate’s prov ing, w ithout objecti on, collatera l bad acts. We affirm the trial court.
The petitioner’s claims rel ate to questi oning and ev idence in his trial about which hi s trial att orney did n ot object and to h is appellate attorney’s failure to pres ent authority on appeal to suppor t the claim that

his trial attorney w

as ineffective for not objecting. The particular s are in thi s court’s o pinion in the de fendant’s direct appeal of his convictions: In the next is s ue the appellant contends that the

prosecutor

was guilty of misconduct which denied him a fair trial and due process of law. Specifically he complains that the Assistant

District Attorney General used leading questions in examining the victim a nd that he probed i nto irrelev ant areas such as the appellant ’s acts of v iolence toward his former wife, his adulterousaffairs and his fa ilure to pay his child support in a timely manner. There was no obj ection to any of this testimony . Under the contemporaneous obj ection rul e, when there is no objection, errors of thi s type are waived

. State v. Sutt on , 562 S.W.2d 820, 825 (Tenn. 1978). This is sue was waived. Fina lly, the appellan t con tends that he was denied eff ecti ve assist ance of counsel because his counsel di d not object to the lea ding q uestions or t o the irrel evant and pr ejudicial questions a sked by the prosecutor. He als o contends that his couns el erred b y failing to specifically ask him w hether

he rap ed the v icti m. The ap pellant has not cited a sing le case or any other authority to support his

contention that it is ineffectiveness to fail to object to questions of these sorts or to specif ically ask a defendant if he is gui lty of the cr ime. Bald ass ertions unaccompanied by citati ons to authorit yamount to a waiver of3 the issues asserted. Rule 27(a)(7), Tenn. R. App. P., State v. Galloway , 696 S.W.2d 364, 369 (Tenn. Crim. App. 1985). This issue was

waived. State v. Ricky Trice , No. 01-C- 01-9105-CR- 00143, David son County (Tenn. Crim. App. Mar. 19, 1992) , app . denied (Tenn. July 29, 1992).

Relevant t o the issues on appeal, the petiti oner testified atthe postconviction hearing that the prosecutor had mentioned such things at the trial as him holding a kn ife to his ex -wife’s t hroat and kick ing her w ith cowboy boots. However, he acknowledg ed that the state’ s position at trial rel ated to his v iolent acts be ing seen by the victi m, the inference bei ng that the v ictim did not immediately disclose hi s sexual assaults becaus e of fear. In any ev ent, he was upset with his issues being waived on appeal.
The appellate atto rney testified that he could no t find any cases directly on po int a bou t the trial atto rney’ s tot al fa ilure to ob ject cons titu ting t he in eff ecti ve assistance of counse l or about the prosecutor’s actions con stituting misconduct. He testified that he found a federal case w hile the petit ioner’s cas e was pendin g revi ew by the Tennessee Su preme Court, but it indicated th at a total failure to object did not rise to the level of ineffective assi stance. Also, he acknowl edged that shor tly after the peti tion er’ s ca se en ded, he l earn ed of State v. John Wesley Hobbs , No. 02-C- 01-9104- CR-00056, Shel by County (Tenn. Crim. App. Nov. 27, 1991), whi ch he claimed “condemned a lot of the tactics” s imilar to th e ones used by the prosecutor

in the petitioner’s

case. The attorn ey testified that he did not bel ieve that th e rules gov erning appeals in the court of criminal appeals call ed for waiver just becaus e no authority was cited.

The trial court found that the petitioner’s appellat e attorney was diligent in his researc h. Relativ

e to this cour

t’s decisi on in Hobbs , the trial court noted that it was4

decided before the appel late argument in the petitio ner’s case, but it conclud ed that the attorney’s

failure to dis cover it

did not render

his repres entation ineffective. As for the issue of prosecut orial misc onduct and the failure of the trial at torney to obj ect, the tria l court found that the i ssue did not con stitute plai n error and t hat the claim of the trial attorney’s

ineffectiveness

was prev iously det ermined in the di rect appeal.
To obtain relief, the petitioner had to show that his appellat e attorney’s performance was

deficient and that the deficient perfor mance prejudiced him in the context of him receiving an unfair resul t in the prosec ution. See Rhoden v. State , 816 S.W.2d 56 (Tenn. Crim. App. 1991). Strickland v. Washington , 466 U.S. 668, 686 -87, 104 S. Ct. 2052, 20 64 (1984); Evitts v . Lucey , 469 U.S. 387, 105S. Ct. 830 (1 985). In review ing the is sue, the finding s of fact of the trial court are conc lusive on appeal unless the ev idence preponderates against them. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990).
As for the appellate at torney’s conduct in the direct appeal, th e record supports the tr ial court’ s conclusion that it w as not ineffectiv e assistance o f counsel for the attorney not to discover the Hobbs decision ear lier. However, we are concerned about the appellate attorney’s apparent lack of understanding of the appellate rul es and apparent limit ation on the use of hi s research t o cases “dir ectly on poi nt.” The fact that citing no authorities in an appellate brief constitutes a waiver of the issue, as noted in this court’ s opinion in t he petitioner’ s direct appeal , is no new revelati on. And limiti ng appellate inq uiry to cases directl y on point w ould leave t he vast major ity of appell ate briefs wi thout any author ity to ci te. In this v ein, beside di ligent re search, analog y is any competent counsel’ s stock-i n-trade tool for legal arguments.
However, appellate counsel’s deficiencies avail the pet itioner nothing in this case. H e presents no aut hority or argument in h is brief that j ustifies us conc luding5

that the questi ons and eviden ce presented at h is trial constitute re versibl e error. As to his su bsta ntive issue s, th e pet itio ner o nly sta tes t hat h is ap pell ate a ttor ney “c ould have shown a rea sonable possibi lity that the allegat ions of viol ence contribute d to the convictio n,” citin g Hobbs . Moreover, he cites neither to the r ecord nor to aut hority th at would show

that the prosec utor’s conduc t constituted pl ain error.

In Hobbs , this court

reverse d a murder conv iction becausethe state introduced hear

say divorce record s that alleg ed violenc e and misconduct by the defendant against th e victim. In the present case, the petiti oner provi des us no specification of theevidence abou t which hecomplains, di vulges no context of the evidence that

would focus consideration up on the relativ e probativevalue and dang er of unfair prejudic e of that evidenc e, and presents a lmost no arg ument as to why the evidence con stitutes tr ial error , much less pl ain error. On the other hand, the prosecutor’s stated reason f or using evidence of the petitioner’s violent acts against his wife is, on its face, a valid one. Under these circ umstances and our independent rev iew of the trial record contained in the petitio ner’s dire ct appeal of his convictions , we find nothing that would have us conclude that the appellate attorney’s deficien cies in his brief constitut ed prejudice t o the petitioner ’s cause.

Finally , we agr

ee with the state’s arg ument in this appea l that the cla im of plain error in the convicting trial may not constitute a separate ground f or relief in this post-convi ction proceedi ng. It has no evident i ndependent constitut ional basis and the petitioner has

not divul ged one. To the ex tent it infers the ineffective as sistance of tri al counsel, it involves an issue previously determined in the direct appea l.

In considerati on of the foregoing and the record as a whole, the judgment of the trial cour

t is affirmed.6 _______________________________ Joseph M. Tipto n, Judge CONCUR:

____________________________ John H. P eay, Judge

____________________________ David H. W elles, Ju dge