FILED

June 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE 

 AUGUST 1996 SESSION

RICKY TRICE, )

)

Appellant, ) No. 01C01-9511-CR-00370

 )

) Davidson County

v. ) 

) Honorable J. Randall Wyatt, Jr., Judge 

)

STATE OF TENNESSEE, ) (Post-Conviction)

) 

Appellee. )

For the Appellant: For the Appellee:

Monte D. Watkins Charles W. Burson

176 2nd Avenue North Attorney General of Tennessee

Nashville, TN 37201 and

Cyril V. Fraser

Counsel for the State

450 James Robertson Parkway 

 Nashville, TN 37243-0493

 

 Victor S. Johnson, III

 District Attorney General

and

Nicholas Bailey 

Assistant District Attorney General

Washington Square

Suite 500

222 2nd Avenue North

Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton

Judge
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O P I N I O N

The petitioner, Ricky Trice, appeals as of right from the Davidson County

Criminal Court’s denying him post-conviction relief. The petitioner is presently serving

concurrent twenty-five year sentences in the Department of Correction for his two 1990

convictions for aggravated rape of his preschool-age daughter. He contends that he

received the ineffective assistance of appellate counsel and that plain error occurred

through the state’s proving, without objection, collateral bad acts. We affirm the trial

court.

The petitioner’s claims relate to questioning and evidence in his trial about

which his trial attorney did not object and to his appellate attorney’s failure to present

authority on appeal to support the claim that his trial attorney was ineffective for not

objecting. The particulars are in this court’s opinion in the defendant’s direct appeal of

his convictions:

In the next issue 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 and that he probed into irrelevant areas

such as the appellant’s acts of violence toward his former wife,

his adulterous affairs and his failure to pay his child support in

a timely manner.

There was no objection to any of this testimony. Under

the contemporaneous objection rule, when there is no

objection, errors of this type are waived. State v. Sutton, 562

S.W.2d 820, 825 (Tenn. 1978). This issue was waived.

Finally, the appellant contends that he was denied

effective assistance of counsel because his counsel did not

object to the leading questions or to the irrelevant and

prejudicial questions asked by the prosecutor. He also

contends that his counsel erred by failing to specifically ask

him whether he raped the victim.

The appellant has not cited a single case or any other

authority to support his contention that it is ineffectiveness to

fail to object to questions of these sorts or to specifically ask a

defendant if he is guilty of the crime. Bald assertions

unaccompanied by citations to authority amount to a waiver of
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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, Davidson County (Tenn. Crim. App.

Mar. 19, 1992), app. denied (Tenn. July 29, 1992).

Relevant to the issues on appeal, the petitioner testified at the postconviction hearing that the prosecutor had mentioned such things at the trial as him

holding a knife to his ex-wife’s throat and kicking her with cowboy boots. However, he

acknowledged that the state’s position at trial related to his violent acts being seen by

the victim, the inference being that the victim did not immediately disclose his sexual

assaults because of fear. In any event, he was upset with his issues being waived on

appeal.

The appellate attorney testified that he could not find any cases directly

on point about the trial attorney’s total failure to object constituting the ineffective

assistance of counsel or about the prosecutor’s actions constituting misconduct. He

testified that he found a federal case while the petitioner’s case was pending review by

the Tennessee Supreme Court, but it indicated that a total failure to object did not rise

to the level of ineffective assistance. Also, he acknowledged that shortly after the

petitioner’s case ended, he learned of State v. John Wesley Hobbs, No. 02-C-01-9104-

CR-00056, Shelby County (Tenn. Crim. App. Nov. 27, 1991), which he claimed

“condemned a lot of the tactics” similar to the ones used by the prosecutor in the

petitioner’s case. The attorney testified that he did not believe that the rules governing

appeals in the court of criminal appeals called for waiver just because no authority was

cited. 

The trial court found that the petitioner’s appellate attorney was diligent in

his research. Relative to this court’s decision in Hobbs, the trial court noted that it was
4

decided before the appellate argument in the petitioner’s case, but it concluded that the

attorney’s failure to discover it did not render his representation ineffective. As for the

issue of prosecutorial misconduct and the failure of the trial attorney to object, the trial

court found that the issue did not constitute plain error and that the claim of the trial

attorney’s ineffectiveness was previously determined in the direct appeal. 

To obtain relief, the petitioner had to show that his appellate attorney’s

performance was deficient and that the deficient performance prejudiced him in the

context of him receiving an unfair result in the prosecution. 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, 2064 (1984); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985). In

reviewing the issue, the findings of fact of the trial court are conclusive on appeal

unless the evidence preponderates against them. Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990).

As for the appellate attorney’s conduct in the direct appeal, the record

supports the trial court’s conclusion that it was not ineffective assistance of counsel for

the attorney not to discover the Hobbs decision earlier. However, we are concerned

about the appellate attorney’s apparent lack of understanding of the appellate rules and

apparent limitation on the use of his research to cases “directly on point.” The fact that

citing no authorities in an appellate brief constitutes a waiver of the issue, as noted in

this court’s opinion in the petitioner’s direct appeal, is no new revelation. And limiting

appellate inquiry to cases directly on point would leave the vast majority of appellate

briefs without any authority to cite. In this vein, beside diligent research, analogy is any

competent counsel’s stock-in-trade tool for legal arguments. 

However, appellate counsel’s deficiencies avail the petitioner nothing in

this case. He presents no authority or argument in his brief that justifies us concluding
5

that the questions and evidence presented at his trial constitute reversible error. As to

his substantive issues, the petitioner only states that his appellate attorney “could have

shown a reasonable possibility that the allegations of violence contributed to the

conviction,” citing Hobbs. Moreover, he cites neither to the record nor to authority that

would show that the prosecutor’s conduct constituted plain error. 

In Hobbs, this court reversed a murder conviction because the state

introduced hearsay divorce records that alleged violence and misconduct by the

defendant against the victim. In the present case, the petitioner provides us no

specification of the evidence about which he complains, divulges no context of the

evidence that would focus consideration upon the relative probative value and danger

of unfair prejudice of that evidence, and presents almost no argument as to why the

evidence constitutes trial error, much less plain error. On the other hand, the

prosecutor’s stated reason for using evidence of the petitioner’s violent acts against his 

wife is, on its face, a valid one. Under these circumstances and our independent review

of the trial record contained in the petitioner’s direct appeal of his convictions, we find

nothing that would have us conclude that the appellate attorney’s deficiencies in his

brief constituted prejudice to the petitioner’s cause. 

Finally, we agree with the state’s argument in this appeal that the claim of

plain error in the convicting trial may not constitute a separate ground for relief in this

post-conviction proceeding. It has no evident independent constitutional basis and the

petitioner has not divulged one. To the extent it infers the ineffective assistance of trial

counsel, it involves an issue previously determined in the direct appeal.

In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed. 
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_______________________________

Joseph M. Tipton, Judge

CONCUR:

____________________________

John H. Peay, Judge

____________________________

David H. Welles, Judge