State v. Robert Burton ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMB ER SESSION, 1998 March 12, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
ROB ERT J. BUR TON , SR., ) C.C.A. NO. 02C01-9807-CC-00226
)
Appe llant, )
) WEAKLEY COUNTY
V. )
)
) HON. WILLIAM B. ACREE, JUDGE
STATE OF TE NNE SSE E, )
)
Appellee. ) (POST -CON VICTIO N)
FOR THE APPELLANT: FOR THE APPELLEE:
KEN T F. GE ARIN JOHN KNOX WALKUP
317 South Lindell Street Attorney General & Reporter
P.O. Box 169
Martin, TN 38237 ELIZABE TH T. RY AN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
THOMAS A. THOMAS
District Attorney General
JAMES T. CANNON
Assistant District Attorney General
414 South Fourth
P.O. Box 218
Union City, TN 37281
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, Robe rt J. Burton , Sr., appe als the ord er of the W eakley C ounty
Circu it Court dismissing his pe tition for p ost-co nviction relief. In th is app eal,
Petitioner argues that his trial cou nsel was ineffec tive. After a careful review of the
record, w e affirm the judgm ent of the tria l court.
On September 8, 1994, Petitioner was convicted of one count of rape and one
count of incest. Petitioner was sentenced as a Rang e I Stand ard Offe nder to
concurrent sentences of twelve (12) years for the rape conviction and six (6) years
for the incest conviction. Petitioner appealed the convictions and this Court affirmed
both the conv ictions an d the sen tences . See State v. Robe rt J. Burton, Sr., C.C.A.
No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. App., Jackson, June 10,
1996). Petitioner filed a pro se petition for post-conviction re lief and the trial court
subs eque ntly appointed counsel to represent him at the hearing. On May 18, 1998,
the trial court entered an order denying Petitioner’s petition for p ost-con viction relief,
finding that he did receive the effective assistanc e of co unse l. In this ap peal,
Petitioner again contends that he did not receive the effective assistance of counsel
in that his trial cou nsel fa iled to in vestiga te and prepa re his c ase. S pecifically, he
contends that his counsel failed to interview the victim, the school guidance
couns elor, the victim ’s schoo l friends, an d other p ossible a libi witnesse s.
The pertine nt facts as set forth in this Court’s previous opinion are as follows:
On the afternoon o f Friday, March 25 , 1994, [Petitioner]
invited his thirteen-year-old daughter S.B. to accompany
him to his workshop. Once there, S.B. assisted
[Petitioner] in the repair of an air con ditioner. After some
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period of time, [Petitioner] approached S.B., pulled down
her shorts and underwear, and pushed her back onto a
couch. [Petition er] then unbu ttoned and u nzipp ed his
pants, kneeled down o n top of S .B., and vagina lly
penetrated her. Hav ing ejacu lated, [Pe titioner] return ed to
his work o n the a ir cond itioner. After ten or fifteen
minutes, [Petitioner] and S.B. left the workshop together
and returned home.
On the following Thursday, S.B. told Sherry Page, her
school guidance counselor, about the incident. At the
behest of Ms. Page, S.B. then told her mother. Ms. Page
contacted the Department of Human Services and asked
the agenc y to investiga te S.B.’s claim. The Department of
Human Services interviewed S.B. on the following Monday
and arranged for Dr. Susan Brewer, a pediatrician, to
examine her for signs of sexual abuse. During the
examination, S.B. again recounted the details of the
incident. The p hysica l exam ination revea led tha t S.B.’s
hymenal opening was enlarged for her age and that she
had significant vaginal scarring, as a result of “tears” in the
vaginal tissue. Dr. Brewer stated that these physical
characteristics indicate vaginal penetration.
In post-conviction proceedings, the petitioner has the burden of proving the
allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-
210(f). Wh en rev iewing the dis miss al of a post-conviction petition, this Court must
affirm the judgment of the trial court unless the evidence in the record preponderates
against the judgm ent. Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).
In determining whether counsel provided effective assistance at trial, the court
must decide whether counsel’s performance was within the range of competence
demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To succeed on a claim that his co unsel w as ineffec tive at trial, a
petitioner bears the bu rden o f show ing tha t his counsel made errors so serious that
he was not functioning as counsel as guaranteed under the Sixth Amendment and
that the de ficient re prese ntation preju diced the p etitioner res ulting in a failur e to
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produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.
2052, 80 L. Ed. 2d 674, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849
S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 199 0).
To satisfy the second prong the petitioner must show a reason able pro bability that,
but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le
doubt regarding p etitioner’s gu ilt. Strickland, 466 U.S. at 695. This reasonable
probab ility must be “sufficient to undermine con fidence in the ou tcome.” Harris v.
State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .
When reviewing trial coun sel’s ac tions, th is Cou rt shou ld not u se the bene fit
of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at
the time they were m ade in ligh t of all facts and circu mstan ces. Strickland, 466 U.S.
at 690; see Cooper, 849 S.W.2d at 746.
In determining whether this Petitioner has satisfied these requirements, this
Court must g ive the findin gs of the tria l court the weight of a jury verdict, and the
judgment of the tria l court w ill not be reversed unless the evidence contained in the
record prepon derates against the findings o f fact mad e by the trial c ourt. State v.
Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
W e have reviewed Petitioner’s various claims and we find that Petitioner has
failed to present any evidence that shows that his attorney represented him in any
other manner than competently. We should note that Petitioner did not tes tify at his
post-conviction hearing . Petitioner first claims that counsel’s failure to interview the
victim prejudiced his case. H owev er, Pe titioner fa iled to p rovide any pro of at his
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hearing that the victim would h ave agre ed to be interviewe d or that a pre-trial
interview would have provided counsel with any additional information.
Second ly, Petitioner claims that trial counsel failed to interview other witnesses
such as the school guidance counselor, the victim’s school friends, and the mother
and brother of Petitioner’s alibi witness. Petitioner claims that he was prejudiced by
trial counsel not interviewing these witnesses. However, none of these witnesses
were presented at the post-conviction hearing to state what they would have testified
to had the y been c alled at trial. There is no evidence that these witnesses’
purported testimony would have in any way helped Petitioner’s case. In its Order
dismissing Petitioner’s petition, the trial court stated the following:
What the petitioner means is that trial couns el failed to
produce alibi witness es. At the trial, one alibi w itness
testified. The petitioner now insists that the alibi witness’
mother and perhaps his brother could have corroborated
the alibi. These witnesses did not testif y at the po st-
conviction hearing, and it would be conjecture to conclude
that their testimony would have been of benefit to the
petitioner.
W e agree with the trial court’s findings. Petitioner cannot expec t this Cou rt to
speculate on the question of whethe r further inve stigation o f a witness or failure to
call a witne ss wo uld have pro duced evidenc e favorab le to this cas e. See Black, 794
S.W.2d at 757. Petitioner is not entitled to relief from h is conviction unless he can
produce material witness who would have te stified fa vorab ly in sup port of h is
defens e. See id. at 758.
In conclus ion, the evid ence c ontaine d in the record doe s not pre ponde rate
against the trial court’s finding that Petitioner received the effective assistance of
couns el.
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Accordingly, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
JOHN EVERET T WILLIAMS, Judge
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