IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1996 SESSION
December 9, 1997
Cecil W. Crowson
THOMAS NEWSOME, JR., ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9506-CR-00167
)
) Davidson County
v. )
) Honorable Ann Lacy Johns, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
J. Timothy Street Charles W. Burson
136 Fourth Avenue South Attorney General of Tennessee
Franklin, TN 37064 and
Clinton J. Morgan
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Roger Moore
Assistant District Attorney General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Thomas Newsome, Jr., appeals as of right from the denial
of his petition for post-conviction relief by the Davidson County Criminal Court. The
petitioner complains about his 1988 convictions for aggravated rape and aggravated
kidnapping for which he received an effective sentence of fifty-five years in the custody
of the Department of Correction. His sole claim in this appeal is that the trial court erred
when it determined that the petitioner received the effective assistance of counsel.
The petitioner’s first convictions for these offenses were reversed upon
direct appeal. State v. Thomas Newsome, No. 86-186-III, Davidson County (Tenn.
Crim. App. Dec. 12, 1986). He was convicted in a second trial, and the judgments of
conviction were affirmed on appeal. State v. Newsome, 798 S.W.2d 542 (Tenn. Crim.
App. 1990). It is from these convictions that he seeks relief.
The gist of the petitioner’s argument is that there are inconsistencies in
the testimony given by the victim in the first and second trials that her trial attorney in
the second trial should have pursued. These inconsistencies relate to such things as
what the victim said to the petitioner at the scene of the crime, where the petitioner hid
his gun on his person at the time of the kidnapping, and the specific timing of the
offenses.
The basic evidence provided by the victim was that she went riding with
two friends and as she got into the car, the petitioner, who she knew by name, yelled at
her not to get into the car. The victim got into her friends’ car, but the petitioner
followed in his car. Subsequently, both cars stopped, and the petitioner got out, saying
that she should get out of the car. She refused, but the petitioner pulled a gun. The
victim then got into his car. According to her, she was fearful of him and believed that
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she had no choice. They ended up in a parking lot, and the petitioner told her to take
off her clothes. After having intercourse with her, the petitioner took the victim to the
neighborhood where she lived and let her out of the car. Medical evidence was
consistent with rape.
At the evidentiary hearing, the petitioner acknowledged that the evidence
presented in both cases was basically the same. The trial attorney testified that she
saw nothing in the discrepancies that would have her question her performance at the
trial. The trial court concluded that the trial attorney’s performance was not deficient
and that, in any event, the inconsistencies would not have affected the outcome of the
trial. We agree.
Under the post-conviction law applicable to the petitioner’s case, the
burden was on him in the trial court to prove by a preponderance of the evidence the
factual allegations that would entitle him to relief. Brooks v. State, 756 S.W.2d 288,
289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial court’s findings
unless we conclude that the evidence in the record preponderates against those
findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,
the petitioner, as the appellant, has the burden of illustrating how the evidence
preponderates against the judgment entered. Id.
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel's
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied, as well, to the right to
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counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel's conduct, a "fair assessment of attorney performance 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, 466 U.S. at 689, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured
by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance. Deference
is made to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.
Also, we note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney's conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations of deficient
performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
We have reviewed the transcripts of the first trial, the second trial, and the
post-conviction evidentiary hearing. Although the discrepancies cited by the petitioner
do exist, we see nothing presented that indicates that the failure to raise them fell below
the range of competency demanded of counsel in criminal cases. Likewise, we view
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the discrepancies as matters of no consequence to the end result of the trial. Under
these circumstances, the evidence in the record on appeal does not preponderate
against the trial court’s findings and conclusions.
The judgment of the trial court is affirmed.
_________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
Paul G. Summers, Judge
___________________________
David H. Welles, Judge
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