IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1998 SESSION FILED August 26, 1998
Cecil Crowson, Jr. ANTHONY J. ROBINSON, ) Appellate C ourt Clerk ) NO. 02C01-9707-CR-00275 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
BARBARA D. MACINTOSH JOHN KNOX WALKUP 474 Perkins Extended, Suite 205 Attorney General and Reporter Memphis, TN 38117-3803 MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
C. ALANDA HORNE Assistant District Attorney General 201 Poplar Ave, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The petitioner, Anthony J. Robinson, appeals the trial court’s denial of his
petition for post-conviction relief. Having been originally convicted by a Shelby
County jury of aggravated rape, he now contends in his post-conviction petition
that he was afforded ineffective assistance of counsel at his trial. The judgment
of the trial court is AFFIRMED.
I.
The petitioner was convicted of aggravated rape and sentenced to thirty-
seven (37) years. The conviction was affirmed on direct appeal. State v.
Anthony J. Robinson, C.C.A. No. 02C01-9210-CR-00245, Shelby County (Tenn.
Crim. App. filed July 14, 1993, at Jackson). The petitioner subsequently filed a
pro se petition for post-conviction relief. Counsel was appointed and an
amended petition filed. After a hearing, the trial court denied the petition for
post-conviction relief, making extensive findings of fact and conclusions of law.
This appeal followed.
II.
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.
Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a
jury verdict, and this Court is bound by the trial court’s findings unless the
evidence in the record preponderates against those findings. Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn.
Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).
This Court may not reweigh or reevaluate the evidence, nor substitute its
2 inferences for those drawn by the trial judge. Henley v. State, 960 S.W.2d at
578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the
credibility of witnesses and the weight and value to be given to their testimony
are resolved by the trial court, not this court. Henley v. State, 960 S.W.2d at
579; Black v. State, 794 S.W.2d at 755. The burden of establishing that the
evidence preponderates otherwise is on petitioner. Henley v. State, 960 S.W.2d
at 579; Black v. State, 794 S.W.2d at 755.
III.
The petitioner raises five issues concerning his claim of ineffective
assistance of counsel. They are as follows:
(1) trial counsel was inexperienced;
(2) counsel did not sufficiently confer with petitioner prior to trial;
(3) counsel failed to interview witnesses the petitioner provided;
(4) counsel failed to adequately investigate the case; and
(5) counsel failed to discover the victim’s medical reports.
This Court reviews a claim 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, 80 L.Ed.2d 674 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 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 at
899.
3 In reviewing counsel's conduct, a "fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at
689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt
the defense, does not, standing alone, establish unreasonable representation.
However, deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation. Goad v. State,
938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v.
State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).
A.
The petitioner claims counsel’s lack of trial experience constituted
ineffective assistance. The trial court noted the petitioner claimed, but presented
no evidence, that his was the first trial that counsel conducted. Further, the trial
court noted that inexperience, in itself, does not equate to ineffective assistance.
We concur. The petitioner must identify specific acts and omissions to support
the claim. The petitioner does not; therefore, this issue is without merit.
B.
The next allegation is that counsel failed to adequately confer with the
petitioner prior to trial. The trial court found counsel visited the petitioner
numerous times prior to trial, and the petitioner admitted that he had reviewed
the evidence with counsel. Contrary to the petitioner’s contention, the trial court
further found that co-counsel also met with the petitioner on two (2) separate
occasions. There is no evidence the petitioner did not have the opportunity to
fully explain his version of the facts to counsel. This issue is without merit.
4 C.
Petitioner’s third issue is that counsel failed to interview and present
witnesses provided by petitioner; namely: Leslie Johnson, Anthony Coleman,
and Brian Maxwell. Counsel testified the petitioner only gave him the names of
Leslie Johnson and Yamika Coleman. Counsel testified that he was unable to
find Leslie Johnson, and Yamika Coleman testified for the state. Counsel further
testified that he did not remember being given the name of Anthony Coleman,
and that Brian Maxwell’s name was only brought to his attention at the close of
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1998 SESSION FILED August 26, 1998
Cecil Crowson, Jr. ANTHONY J. ROBINSON, ) Appellate C ourt Clerk ) NO. 02C01-9707-CR-00275 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
BARBARA D. MACINTOSH JOHN KNOX WALKUP 474 Perkins Extended, Suite 205 Attorney General and Reporter Memphis, TN 38117-3803 MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
C. ALANDA HORNE Assistant District Attorney General 201 Poplar Ave, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The petitioner, Anthony J. Robinson, appeals the trial court’s denial of his
petition for post-conviction relief. Having been originally convicted by a Shelby
County jury of aggravated rape, he now contends in his post-conviction petition
that he was afforded ineffective assistance of counsel at his trial. The judgment
of the trial court is AFFIRMED.
I.
The petitioner was convicted of aggravated rape and sentenced to thirty-
seven (37) years. The conviction was affirmed on direct appeal. State v.
Anthony J. Robinson, C.C.A. No. 02C01-9210-CR-00245, Shelby County (Tenn.
Crim. App. filed July 14, 1993, at Jackson). The petitioner subsequently filed a
pro se petition for post-conviction relief. Counsel was appointed and an
amended petition filed. After a hearing, the trial court denied the petition for
post-conviction relief, making extensive findings of fact and conclusions of law.
This appeal followed.
II.
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.
Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a
jury verdict, and this Court is bound by the trial court’s findings unless the
evidence in the record preponderates against those findings. Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn.
Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).
This Court may not reweigh or reevaluate the evidence, nor substitute its
2 inferences for those drawn by the trial judge. Henley v. State, 960 S.W.2d at
578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the
credibility of witnesses and the weight and value to be given to their testimony
are resolved by the trial court, not this court. Henley v. State, 960 S.W.2d at
579; Black v. State, 794 S.W.2d at 755. The burden of establishing that the
evidence preponderates otherwise is on petitioner. Henley v. State, 960 S.W.2d
at 579; Black v. State, 794 S.W.2d at 755.
III.
The petitioner raises five issues concerning his claim of ineffective
assistance of counsel. They are as follows:
(1) trial counsel was inexperienced;
(2) counsel did not sufficiently confer with petitioner prior to trial;
(3) counsel failed to interview witnesses the petitioner provided;
(4) counsel failed to adequately investigate the case; and
(5) counsel failed to discover the victim’s medical reports.
This Court reviews a claim 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, 80 L.Ed.2d 674 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 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 at
899.
3 In reviewing counsel's conduct, a "fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at
689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt
the defense, does not, standing alone, establish unreasonable representation.
However, deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation. Goad v. State,
938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v.
State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).
A.
The petitioner claims counsel’s lack of trial experience constituted
ineffective assistance. The trial court noted the petitioner claimed, but presented
no evidence, that his was the first trial that counsel conducted. Further, the trial
court noted that inexperience, in itself, does not equate to ineffective assistance.
We concur. The petitioner must identify specific acts and omissions to support
the claim. The petitioner does not; therefore, this issue is without merit.
B.
The next allegation is that counsel failed to adequately confer with the
petitioner prior to trial. The trial court found counsel visited the petitioner
numerous times prior to trial, and the petitioner admitted that he had reviewed
the evidence with counsel. Contrary to the petitioner’s contention, the trial court
further found that co-counsel also met with the petitioner on two (2) separate
occasions. There is no evidence the petitioner did not have the opportunity to
fully explain his version of the facts to counsel. This issue is without merit.
4 C.
Petitioner’s third issue is that counsel failed to interview and present
witnesses provided by petitioner; namely: Leslie Johnson, Anthony Coleman,
and Brian Maxwell. Counsel testified the petitioner only gave him the names of
Leslie Johnson and Yamika Coleman. Counsel testified that he was unable to
find Leslie Johnson, and Yamika Coleman testified for the state. Counsel further
testified that he did not remember being given the name of Anthony Coleman,
and that Brian Maxwell’s name was only brought to his attention at the close of
proof at trial.
When a petitioner contends that trial counsel failed to discover, interview,
or present witnesses in support of his defense, these witnesses should be
presented by the petitioner at the evidentiary hearing. Black v. State, 794
S.W.2d at 757; see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App.
1996). As a general rule, this is the only way the petitioner can establish that (a)
a material witness existed and the witness could have been discovered but for
counsel’s neglect in his investigation of the case, (b) a known witness was not
interviewed, (c) the failure to discover or interview a witness inured to his
prejudice, and (d) the failure to have a known witness present or call the witness
to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner. Black, 794 S.W.2d at 757. Neither the trial court nor
this Court can speculate on what a witness’ testimony might have been if
introduced by counsel. Id.
Neither Leslie Johnson nor Anthony Coleman appeared at the post-
conviction hearing; thus, any allegation based upon their alleged testimony is
speculative and without merit. Counsel testified that he was only made aware of
Brian Maxwell’s testimony at the close of proof, and that Maxwell gave evasive
answers upon being interviewed by counsel. The trial court characterized
5 counsel’s decision not to present the testimony of Maxwell as “sound trial
strategy.” We agree. This issue is without merit.
D.
The petitioner’s fourth assignment of error is that counsel failed to make a
reasonable investigation of the facts. The trial court found there was no
evidence that counsel failed to adequately investigate the case. Counsel
testified that there was an adequate investigation. The evidence supports the
post-conviction court’s finding in this regard. Further, there was no showing as to
any beneficial information that further investigation would reveal. This issue is
without merit.
E.
Finally, the petitioner alleges counsel was ineffective for failing to discover
medical reports concerning the victim. Petitioner contends this failure prevented
counsel from fully investigating the prior sexual history of the victim.
The trial court noted counsel filed two (2) pre-trial motions seeking to
discover information about the victim’s sexual history. These motions were
denied by the trial court. The trial transcript reveals that counsel was aware of
the medical reports prior to trial. Furthermore, there was medical testimony at
trial indicating prior sexual activity of the victim. The petitioner does not specify
what information counsel failed to discover that would have been helpful to the
petitioner’s defense. The petitioner, therefore, has failed to prove that counsel
provided deficient performance or that he was prejudiced. This issue is without
merit.
CONCLUSION
6 The record in this case reflects model findings of fact and conclusions of
law by Judge W. Fred Axley. His findings addressed all grounds for relief
alleged by the petitioner. Those factual findings are contrary to petitioner’s
contentions and, for all practical purposes, foreclose any relief by this Court.
The trial judge was in a much better position than this Court to determine the
credibility of the witnesses. We yield to the trial judge’s determination as to
credibility.
The petitioner has failed to meet the burden for establishing ineffective
assistance of counsel as mandated by Strickland v. Washington, supra. The trial
court found that counsel’s performance was within the range of acceptable
professional assistance. Further, petitioner has failed to demonstrate that he
was prejudiced as the result of counsel’s performance.
Accordingly, the judgment of the trial court is AFFIRMED.
_________________________ JOE G. RILEY, JUDGE
CONCUR:
7 _________________________ CURWOOD WITT, JUDGE
_________________________ ROBERT W. WEDEMEYER, SPECIAL JUDGE