State v. Larry Cawthon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1997 SESSION
July 29, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
LARRY J. CAWTHON, ) C.C.A. No. 02C01-9702-CR-00064
)
Appellant, ) SHELBY COUNTY
)
VS. ) HON. JOSEPH B. BROWN, JR.,
) JUDGE
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM C. GOSNELL JOHN KNOX WALKUP
217 Exchange Avenue Attorney General and Reporter
Memphis, TN 38105
DEBORAH A. TULLIS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
JOHN CAMPBELL
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:
AFFIRMED - RULE 20 ORDER
JOE G. RILEY,
JUDGE
ORDER
This is an appeal from the denial of post-conviction relief. Convicted of criminal
attempt to commit rape and sentenced to twelve (12) years as a Range III, Persistent
Offender, petitioner alleges he was deprived of effective assistance of counsel at his
trial. He further contends the indictment is void. We AFFIRM pursuant to Rule 20
of the Tennessee Court of Criminal Appeals.
Firstly, we note that petitioner does not make appropriate references to the
record in support of his argument as required by Tenn. R. App. P. 27(a)(7). The issues
are, therefore, waived. Rule 10(b), Tennessee Court of Criminal Appeals. We will,
nevertheless, address the issues.
As to petitioner’s allegations of ineffective assistance of counsel, the trial court
found that trial counsel conducted adequate discovery, conducted an appropriate
investigation, properly discussed the case with petitioner and adequately cross-
examined the victim regarding her identification of the defendant. The trial court
concluded that petitioner indeed received effective assistance of counsel at his trial.
The record supports this finding.
Petitioner also attacks counsel’s failure to request a special jury instruction on
eyewitness identification. State v. Dyle, 899 S.W.2d 607, 613-14 (Tenn.1995),
promulgated a new jury instruction on eyewitness identification; however, petitioner’s
case was tried and affirmed on appeal prior to the filing of the Dyle opinion. Counsel
was not ineffective for failing to request a special jury instruction on eyewitness
identification.
As to the sufficiency of the indictment, petitioner contends his trial counsel was
ineffective for failing to attack the indictment by pre-trial motion. This issue was waived
by the failure to present it to the post-conviction court. Tenn. R. App. P. 36(a).
Furthermore, petitioner’s allegation that the indictment is fatally deficient due to the
failure to allege the requisite mens rea is without merit. See State v. Phillip Ray
Griffis, C.C.A. No. 01C01-9506-CC-00201 (Tenn. Crim. App. filed April 30, 1997, at
Nashville); State v. David L. McClure, C.C.A. No. 01C01-9505-CR-00145 (Tenn. Crim.
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App. filed April 30, 1997, at Nashville); Turner v. Harrison, C.C.A. No. 02C01-9701-CC-
00025 (Tenn. Crim. App. filed April 17, 1997, at Jackson).
After a thorough review of the records, briefs, and the law governing the issues
presented for review, it is the opinion of this court that the judgment of the trial court
should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE
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