Marise E. Smith v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1999 September 2, 1999

Cecil Crowson, Jr. MARISE E. SMITH, ) Appellate Court Clerk C.C.A. NO. 01C01-9708-CR-00342 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT: FOR THE APPELLEE:

WESLEY MACNEIL OLIVER JOHN KNOX WALKUP Edwards, Simmons & Oliver Attorney General and Reporter 1501 S ixteenth A venue S outh Nashville, TN 37212 KIM R. HELPER Assistant Attorney General JENNIFER L. SMITH 425 Fifth Avenu e North Counsel for Appellant Nashville, TN 37243-0493 222 Se cond A venue N orth Suite 360, Mezzanine VICTOR S. JOHNSON Nashville, TN 37201 District Attorney General

MARY HAUSMAN Assistant District Attorney Washington Square, Ste. 500 Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

The petitioner, Marise E. Smith, appeals the order of th e David son Co unty Criminal Court de nying his p etition for po st-convictio n relief. The petitioner was convicted in 199 3 of on e (1) co unt of a ggrav ated b urglary, two (2) counts of attempted rape, one (1) count of aggravated rape and one (1) count of harass ment. He received an effective sentence of thirty-nine (39) years, eleven (11) months and twenty-nine (29) days for the offenses. In 1996, the petitioner filed the present petition alleging numerous constitutional issues. After an evidentiary hearing, the trial court denied the petition. On appeal, the petitioner raises the following issues for our review:

(1) whether the trial cou rt erred in failing to gran t the petition d ue to the state’s failure to respond to the allegations in the petition;

(2) whether the trial court erred in refusing to allow the petitioner to call an assistant district attorney as a witness at the post-conviction hearing;

(3) whether double jeopardy precludes the petitioner’s convictions for two (2) counts of attempted rape and one (1) count of aggravated rape;

(4) whether the indictment in this case was fatally deficient for failing to allege the requisite mens rea;

(5) whether the petitioner was denied the effective assistance of trial and appellate counsel; and

(6) whether the reasonable doubt jury instruction at the petition er’s trial was unco nstitutio nal.

After a thorough review of the record before this Court, we find no revers ible error. Th erefore, w e affirm the judgm ent of the tria l court.

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FACTUAL BACKGROUND

A. Trial

The petitioner was convicted in 1993 of one (1) count of aggravated burglary, two (2) counts of attempted rape, one (1) count of aggravated rape and one (1) coun t of harass ment. This Court affirmed the petitioner’s convictions on direct appea l. State v. S mith, 891 S.W.2d 922 (T enn. Crim. App. 1994). The Tennessee Supreme Court denied permission to appeal on October 3, 1994. To place this case in perspe ctive we w ill recite the facts at trial as set ou t by this Cou rt on dire ct app eal.

During the early morn ing hours of April 9, 1992, the appellant entered the residence of the victim through a dining room window. He remo ved his pants in the h allway a nd en tered th e victim ’s bedroom. The victim was awakened when she heard the bedroom floor “creak.” As she turned to look, she saw the figure of a person crouching next to h er bed . The a ppella nt imm ediate ly pinned th e victim to the bed. He had a cord in his hand. The victim could not determine if the cord was made of rope or leather. The appellant attempted to pene trate the victim ’s vagina, b ut his reproductive organ was no t sufficiently ere ct. After masturbating and obtaining an erection, he be gan to pene trate the victim’s anus . The v ictim asked the app ellant not to penetrate her anus. When she realized that she co uld not resist the appellant, and the appellant may kill her if she did not submit, the victim asked the appellant to penetrate her vagina. The appellant obliged the [victim] and engaged in vaginal intercourse with the victim.

The victim subsequently engaged the a ppella nt in conversation. The appellant told the victim that he had a hard time finding girlfriends. He also told her tha t he ha d take n a co urse in love psycho logy. Later, the appellant exited the residence through the open dining room window.

A nurse practitioner examined the victim on the date in question. The findings of the nurse practitione r were co nsistent w ith vaginal penetration. A forensic analysis of the vaginal swabs prepared by the nurse practitioner and the victim’s panties revealed the presen ce of spe rm. In ad dition, the police found that the fingerprints lifted from the dining room window matched the appellant’s fingerprints.

The appellant made several telephone calls to the victim’s residence. The numbers were recorded on a caller identification

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device that the victim had installed. The appellant’s voice was recorded on a ta pe co ntaine d in the victim’s answering machine. The victim identified the voice as the person who had raped her. She sta ted the ap pellant ha d a Florida accen t.

The telephone numbers recorded on the victim’s caller identification device were listed to an automobile dea lership in Franklin, Tennessee. The investigating officers took the answering machine tape to the automobile dealership where the general manager listened to the tape. The general manager identified the voice as that of the appellant, an employee of the dealership. The officers obtained a copy of the appellant’s employment records. The records revealed that the appellant had resided in Florida and had taken cours es in psycholo gy.

The appe llant testified that he had consensual vaginal intercourse with the victim after meeting her in a local bar. After leaving the victim’s residence on the morning in question, he discovered that he had left his keys inside the [victim’s] residence. When the victim did not answer the door, he went to the dining room window, stood on a gas meter, and tapped on the window. According to the appellan t, the victim responded, opened the front door, and h e obta ined h is keys . He co uld no t explain why the victim claimed that she was ra ped. The appe llant op ined th at the vic tim was angry because he would not spend the remainder of the night with her. He exp lained the telephon e calls as a n attem pt to fulfill a promise to call the victim. When the victim did not answer the telephone, he continued to ca ll in an effort to contact her.

State v. S mith, 891 S.W.2d at 925-26.

B. Post-Conviction Hearing

The petitioner testified that his trial counsel was ineffective because counsel failed to object to various sta te witness es’ testim ony and failed to investigate the crime scene thoroughly. He stated that the assistant district attorneys repeatedly committed prosecutorial misconduct by misstating the evidence in closing and rebuttal arguments. The petitioner also believed that the state committed prosecutorial misconduct when it issued a superseding indictment charging additional offenses after he refused to accept a plea barga in offered by the state. Petitioner questioned the legality of the attempt convictions

-4-and stated that trial counsel was ineffective for failing to challenge such convictions.

Paul Newman of the Public Defender’s Office represented the petitioner at trial. He ha d work ed for th e Pub lic Defender’s officer for approximately eight (8) years at the tim e of the petition er’s trial. Newman testified that he met with the petitio ner several times prior to trial, and he and his staff conducted “extensive pretrial preparation.” As part of his investigation, he went to the crime scene and made photographs of the victim’s home. Although he did not take pictures of the inside of the victim ’s hom e, he did n ot think it was importa nt to take such photographs. He attemp ted to locate potential defense witnesses and interviewed all witnesses provided by the petitioner. He could not recall whether he interviewed all of the state’s witnesses.

With regard to the petitioner’s assertion that his convictions for attempted rape were barred by double jeopard y, Newm an testified that he an d appe llate coun sel, Jeffrey DeVa sher, researched and discussed the issue. However, he believed that the do uble jeop ardy claim was no t a viable issu e to raise at the trial level or on a ppeal.

Newman could not specifically recall any plea b argain discussions with the state in this case, but did not believe that the superseding indictment was the result of prosecutorial vindictiveness. In addition, Newman stated that he did not view the state’s closing argum ent as prose cutoria l misco nduc t and, th erefor e, did not objec t.

The petitioner attempted to call Assistant District Attorney Mary Hausman as a witness to testify regardin g his claim s of prose cutorial m iscondu ct. However, the trial court refused to exclude Hausman from the courtroom under the rule of sequestration becau se she was rep resenting the state in the post-

-5-conviction matter. The trial court then postponed Hausman’s testimony until another attorney c ould be prepare d to represent the state but subsequently made its ruling without Hau sman’s tes timony.

The trial court found that trial counsel spent an “enormous amount of time on this case.” The court found that Newman investigated the case and researched the issues thoroughly. The trial court noted that counsel “thought of every conceivable objection and issue that should’ve been taken up.” Therefore, the trial court found that trial counsel met the competency standards required of criminal defen se atto rneys and d enied the pe titioner’s claim of ineffective assistance of counsel. Furthermore, the trial court de termine d that the s eparate convictions for two (2) counts of attempted rape and one (1) count of aggravated rape did not violate the petitioner’s double jeopardy rights, the reasonable doubt instruction charged to the jury was constitutional, and the indictments were not fatally deficient for fa iling to allege the requisite mens era . Accordingly, the trial court denied the petition for post-conviction relief. From the trial court’s orde r, the petition er bring s this ap peal.

STANDARD OF REVIEW

In post-conviction proceedings, the petitioner bears the burden of proving the allegations raised in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f); Hicks v. S tate, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). Moreover, the trial court’s findings of fact are conclusive on appeal unless the evide nce pre ponde rates ag ainst the ju dgme nt. Tidwe ll v. State, 922 S.W .2d 497, 50 0 (Ten n. 1996 ); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn . 1995); Coop er v. State, 849 S.W .2d 744, 746 (Tenn. 199 3).

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STATE’S RESPONSE TO THE PETITION

In his first issue, the petitioner claims that the trial court erred in denying his petition when the state failed to respond to the petition in accordance with Tenn. Code A nn. § 40-30-2 08. He further a rgues that the state failed to make “crucial documents,” i.e., the transcripts of the jury charge and closing arguments, a part of the post-con viction record, thereby r endering the trial c ourt’s determination of certain issues, as well as appellate review of those issues, impossible. Thus, he cla ims th at the s tate’s failure to com ply with the 1 995 Po st-Convic tion Proc edure A ct warran ts a revers al of the trial co urt’s judgm ent.

Initially, we mu st agree with the sta te that the petitione r has w aived th is claim for fa iling to objec t to the state’s response at the post-conviction hearing. Otha Bom ar v. State, C.C.A. No. 01C01-9607-CR-00325, 1997 Tenn. Crim. App. LEXIS 1104, at *2, Davidson County (Tenn. Crim. App. filed October 30, 1997, at Nashville). Furthermore, the petitioner has not demonstrate d how he was prejudice d by the s tate’s allege dly deficien t respon sive plead ing. Id. at *2-3.

In any even t, in its response to the petition for post-conviction relief, the state “denie[d ] the factual allegations contained in the petition and demand[ed] strict proof th ereof.” The s tate’s re spon se also spec ifically addressed the petitioner’s allegation concerning the language in the indictment. We hold that this respon se com plied ade quately w ith the requirements of Tenn. Code Ann. § 40-30-208 (d).

With regard to the pe titioner’s asse rtion tha t the sta te imp roper ly failed to make certain transcripts a part of the post-conviction record, we note that the 1995 Act does not mandate that the state file records and transcripts relevant to the proceeding, but merely states that “the district attorney general is empowered

-7-to obtain [the records or transcripts] at the expe nse of the state and may file them with the respo nsive p leadin g or with in a reasonable time thereafter.” Tenn. Code Ann. § 40-30 -208(b) (e mpha sis adde d); contra Tenn. Code Ann. § 40-30-114(b) (repealed 1995). Regardless, the record before this Court contains the transcripts of the jury instructions and closing arguments. This Court can review the substance of petitioner’s claims, and his argument in this regard is, accord ingly, withou t merit.

ASSISTANT DISTRICT ATTORNEY AS WITNESS

In his next issue, the petitioner claims that the trial court erred in denying his reque st to ca ll Assistant District Attorney Mary Hausman as a witness at the post-conviction hearing. He arg ues tha t Hausm an’s testim ony was relevant to his claim that the superseding indictm ent was the result of prosecutorial vindictiveness due to his refusal to accept the state’s plea bargain offer. The petitioner maintains that, in denying his request, the trial court denied him the opportunity to prove his claims by clear and convincing evidence.

The petitioner was originally indicted with one (1) count of aggravated rape with a deadly weapon, one (1) count of aggravated rape by bodily injury, one (1) count of especially aggrava ted burg lary and o ne (1) co unt of har assm ent. According to the petitioner, after he refused a plea bargain offered by the state, he was re-indicted with one (1) count of aggravated burglary, one (1) count of aggravated rape, two (2) counts of attempted rape, and two (2) counts of harass ment. Trial counsel could not recall the specifics of the plea barga in negotiations with the state. However, on cross-examination, the following exchange occurred:

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Q Now, the -- one of the issues that has been raised is that there was a superseding indictme nt, which charged Mr. Smith with additional offenses, espe cially the two attempted rapes and, I think, an additional count of harassment and changed the espe cially aggravated burglary c ount, which had been in the original indictme nt, to aggravated burglary.

Let me s ee if you ca n reca ll that, during our plea negotiations, I sent you a letter saying that this was the offer and that, if the offer was not acceptable, then what I was goin g to have to do, bas ed on m y work with the victim and talking to the victim and finding out exactly what had happened during the crime, was going to have to do a superseding indictment and charge him with two counts of attempted rape.

Do you rec all, now that I’ve sort of refreshe d --

A I believe --

Q -- your m emory on that?

A -- that do es so und fa miliar to me. I know that there wasn’t an y vicious thin g or anyth ing as a th reat; it was mo re matte r of fact, as I rec all it.

The trial court ruled on th e prosecutorial vindictiveness issue without hearing Hau sma n’s testimony. The court determined that the superseding indictment returned after failed plea negotiations did not constitute prosecutorial vindictiveness under Bordenkircher v. Hayes, 434 U.S . 357, 98 S .Ct. 663, 5 4 L.Ed.2d 604 (1977). We agree.

In Bordenkircher, the United States Supreme Court held that due process was not violated when a prosecutor re-indicted the defendant with more serious charges after the de fendan t refused to acce pt a ple a barg ain offer. 434 U.S. at 365, 98 S.Ct. at 669. The petitioner’s claim as alleged does not establish a denial of due proce ss, an d Hau sma n’s testimony would not have altered the trial court’s determination.

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The petitioner maintains that “the record in this case fails to dem onstrate that the prosecutor clearly expressed an intention to seek a superseding indictment at the time of the p lea ne gotiatio ns or, if so, tha t [petition er] was fully informed of the terms of the offer when he made the decision to reject plea bargain ing.” See Bordenkircher, 434 U.S. at 363-65, 98 S.Ct. at 667-69. Howeve r, the record does indicate that Assistant District Attorney Hausman sent a letter to defense counsel which outlined the term s of the plea o ffer, as w ell as the consequ ences of the p etitioner’s rejection of that offer. Moreover, the petitioner is in a better p osition tha n the ass istant district a ttorney to te stify whether he was “fully informed of the terms of the offer”. The trial court did not err in denying the petitioner’s request to call Hausman as a witness.

This issu e is withou t merit.

DOUBLE JEOPARDY

The petitioner alleges that his convictions for two (2) counts of attempted rape and one (1) count of aggravated rape are violative of his constitutional right against doub le jeop ardy. H e claim s that the three (3) convictions were based upon one (1 ) crimin al inten t. The refore , he cla ims th at he re ceived multip le punish ments for the same offense, and Counts Two and Three of the indictment charging him with attempted rape should be dismissed.

Initially, the state claims that this issue is waived for failure to assert the issue in a prior proceeding. Tenn. Code Ann. § 40-30-206(g) provides:

A ground for relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of compe tent juris diction in whic h the g round could have be en pres ented u nless:

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(1) The claim for relief is base d upo n a co nstitutio nal right not recognized as existing at the time of trial if either the federal or state constitution requires retroactive application of that right; or

(2) The failure to present the ground was the result of state action in violation of the federal or state constitution.

Because there is no indication th at the failure to prese nt this iss ue wa s the re sult of state action, the pe titioner’s double jeopardy issue is waived unless it is based upon a new constitutional rule that requires retrospective application. In Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989), the United S tates Su preme Court he ld that

[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States o r the Fed eral Go vernm ent. . . . To put it differently, a case announces a n ew rule if the res ult was not dictate d by prec edent e xisting a t the tim e the d efend ant’s convic tion be cam e final.

(Citations omitted) ; see also Mead ows v. Sta te, 849 S.W.2d 748, 751 (Tenn. 1993).

In 1996, our Supreme Court released its opinion in State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996), wh ich he ld that th e dete rmina tion of a doub le jeopardy issue rests on the following: (1) an analysis of the statutory offenses; (2) an analysis of the evidence used to prove the offenses; (3) a consideration of whether there were multiple victims or discrete acts; and (4) a comparison of the purposes of the resp ective statu tes. W hile relying in p art on existin g prece dent, the Court’s opinion in Denton changed prior law by requiring a more detailed analys is than simply the test announced in Blockburger v. United States, 284 U.S. 299, 30 4, 52 S.C t. 180, 182 , 76 L.Ed . 306 (19 32). See State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975). In other words, a double jeopardy analysis under our state constitution pursuant to Denton is more extensive than that under federal law pursuant to Blockburger.

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W e believe that Denton broke “new ground” un der Teague and Meadows and, therefore, conclude that the rule in Denton create d a ne w con stitution al rule of law.

Howeve r, this does not end our inquiry on this point. We m ust now determine whether the new constitutional rule established in Denton requires retroactive application. In Mead ows v. Sta te, our Supreme Court declined to apply the federal stand ard for retroactivity when d etermining w hether a new sta te constitutional rule of law should be applied retroactively to a claim for p ostconviction relief. 849 S.W.2d at 754-55. The Court stated:

newly anno unce d state cons titutiona l rules w ill be given retroactive application to cases which are still in the trial or appellate process at the time such rules are announced, unless some compelling reason exists for not so doing. State v. Robbins, 519 S.W.2d 799, 800 (Tenn. 19 75). In post-conviction proceeding s, we have considered retroactive application neces sary whe n the ne w state rule enhances the integrity and reliability of the fact finding process of the trial. Hellard v. S tate, 629 S.W.2d 4, 5 (Tenn. 1982). Stated another way, we have held retroactive application necessary when the old rule substantially impairs the truth-finding function of the trial and thereby raises serio us que stions ab out the ac curacy o f guilty verdicts in p ast trials. Id. at 7.

Id. at 754 (footnote o mitted).

Utilizing the Meadows retroactivity standard, we d o not believe that the rule anno unce d in Denton should be a pplied retroactively. The rule in Denton does not subs tantially e nhan ce the integrity and re liability of the fact-finding process but mere ly refine s a cou rt’s ana lysis for determining whether convictions arising out of one incident are permitted under state constitutional notions of what constitutes double jeopardy. Nor did the “old rule” impair the truth-finding function of the trial. The reliability of the jury’s fact finding function is not enhanced by retroactively applying the rule announced in Denton. See Meadows, 849 S.W.2d at 755. Thus, we conclude that the Denton rule should not be given retroactive application.

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The petition er, ther efore, is not en titled to p ost-co nviction relief on this basis. T his issue is without m erit.

SUFFICIENCY OF THE INDICTMENT

In his next issue, the petitioner contends that the indictment failed to allege the requisite mens rea for the offenses charged. He argues that the mens rea is an essential element of the char ged offe nse. Therefore, because the indictment failed to allege an essential element of the offense, no offense has been charged, and any furthe r proceeding s are a nullity.

The petitioner was charged in a multi-count indictment with one (1) count of aggravated burglary, 1 two (2) counts of attempted rape, one (1) count of aggravated rape and two (2) counts of harassment. Counts Two and Three of the indictment alleged that the petitioner “did attempt to engage in unlawful sexual penetration of . . . [the victim], and forc e or coercion was use d to accomplish this act in violation of T ennes see Co de Ann otated § 39-12-1 01, . . .” Count Four a lleged that the petition er “did engage in unlawful sexual penetration of [the victim] and [the petitioner] caused bodily injury to [the victim] in violation of Tenness ee Co de Ann otated § 39-13-5 02, . . .” Cou nt Six allege d that the petitioner “did place ano nymous telephone ca lls in an offensively repetitious manner and without a legitimate purpose and by this action annoyed and alarmed the recipie nt, . . . in violation of T ennes see Co de Ann otated § 39-17-3 08, . . .” 2

An indictm ent m ust “sta te the fa cts con stituting the offe nse in ordinary and concise language, without prolixity or repetition, in such a ma nner a s to en able

1 The p etitioner doe s not co ntest the v alidity of the agg ravated burglary co unt.

2 The p etitioner wa s originally con victed on Coun t Five of the indictm ent which charge d a sep arate count of harassment. However, at the hearing on the motion for new trial, the trial court determined that Counts Five and Six of the indictment charging harassment were multiplicitous and dismissed the petitioner’s conviction in Count Five.

-13-a person of common understanding to know what is intended.” Tenn. Code Ann. § 40-13-2 02. “To satisfy our constitutional notice requirem ents, an in dictme nt . . . must provide notice of the offense charged, an adequate basis for the entry of a proper judgment, and suitable protection against double jeopardy.” State v. Trusty, 919 S .W .2d 30 5, 309 (Ten n. 199 6). “As a gen eral rule , it is sufficient to state the offens e charg ed in the w ords of th e statute, . . . or words which are equivalent to the words contained in the statu te.” State v. T ate, 912 S.W.2d 785, 789 (Ten n. Crim. App . 1995) (citations om itted).

In State v. Hill, 954 S.W.2d 725, 726-27 (Tenn. 1997), the Tennessee Supreme Court held that

for offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment which fails to allege such m ental state will be sufficient to sup port prosecution and conviction for that offense so long as

(1) the langu age of the ind ictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend, adequate basis for entry of a proper judg ment, and protection from d ouble jeopa rdy;

(2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and

(3) the mental state can be logically inferred from the conduct alleged.

Subseq uently, the Court extended its holding in Hill to offenses where the mental state is provided for in the statute. Ruff v. Sta te, 978 S.W .2d 95 (Ten n. 1998). In Ruff, the Court observed, “[w]e think that the reasoning in Hill applies with even greater force here because the mental state was provided by the statute cited in the indictment, thereby placing [the defendant] on notice that knowledge is an element o f the offense.” Id. at 99.

W e believe that the ind ictme nt in this case comp lied with the requirem ents of Hill. To begin, the indictment provided sufficient notice of the offenses for which the petition er was b eing cha rged, as well as su fficient notice to the trial

-14-court for the entry of a prope r judgm ent. Sec ondly, the indictme nt was a dequa te to prevent a subsequent reprosecution for the same offenses. Moreover, the indictment complies with the requirements of Tenn. Code Ann. § 40-13-202 in that it “state[d] the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of comm on unders tanding to kno w what is intende d.” Finally, we conclude that the requisite mental states can be “logica lly inferre d” from the co nduc t allege d in the counts of the indictment. As a result, the language in the indictment was legally sufficie nt.

This issu e has n o merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his next issue, the petitioner claims that he was denied his right to effective assistance of counsel at trial and on appeal. He argues that trial counsel was ineffe ctive for failing to investigate the crime scene , failing to interview state witnesses, failing to obje ct to witnes ses’ testim ony, failing to challenge the indictm ent and failing to challenge his convictions for attempted rape and aggra vated rape o n dou ble jeopardy grounds. He further asserts that appellate counsel was ineffective for failing to assert various issues on his direct appe al.

A.

The Sixth Am endm ent to the United States Constitu tion provide s, in part, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his d efense.” Sim ilarly, Article I, § 9 of the Tennessee Constitution guarantee s an accus ed “the right to be he ard by him self an d his counsel . . .” Additionally, Tenn. Co de Ann. § 4 0-14-102 p rovides, “[e]very

-15-person accused of any crime or misdemeanor whatsoever is entitled to counsel in all matte rs nece ssary for su ch pers on's defe nse, as w ell to facts as to law.”

The United States Suprem e Court articulated a two-prong te st for courts to employ in evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 66 8, 104 S.C t. 2052, 80 L.Ed .2d 674 (198 4). The Co urt began its analysis by noting that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S . at 686, 10 4 S.Ct. a t 2064. W hen challenging the effective assistance of counsel in a post-conviction proceeding, the petitioner bears the burden of establishing (1) the attorney’s representation was deficient; an d (2) the d eficient perform ance re sulted in p rejudice s o as to deprive the defen dant of a fa ir trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Powe rs v. State, 942 S.W .2d 55 1, 558 (Ten n. Crim . App. 1 996). T his Court is not required to consider the two prongs of Strickland in any particular order. Harris v. S tate, 947 S .W .2d 15 6, 163 (Ten n. Crim . App. 1996). “Moreover, if the Appellant fails to establish one prong, a reviewing court need not consider the other.” Id.

The test in T enne ssee in determining whether cou nsel provided e ffective assistance at trial is whether counsel’s performance was “within the range of comp etence demanded of attorne ys in criminal case s.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn . 1975); see also Harris v. S tate, 947 S.W .2d at 163 . In order to demonstrate that counsel was deficient, the petitioner must show that coun sel’s repres entatio n fell below an objective standard of reasonableness under prevailing profess ional norm s. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Harris v. S tate, 947 S.W.2d at 163.

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Under the prejudice prong o f Strickland, the petitioner must establish that “there is a reasonable probability that, but for coun sel's unprofessional errors, the result of the proceeding would have been differen t. A rea sona ble probability is a probab ility sufficient to underm ine confidence in the outcom e.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

In review ing co unse l’s cond uct, a “fa ir assess ment . . . 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 coun sel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The mere failure of a partic ular tac tic or strategy does n ot per se establish unrea sona ble represe ntation. Goad v. State, 938 S.W .2d 363, 369 (Tenn. 199 6). Howeve r, this Court will defer to coun sel’s tac tical an d strate gic cho ices on ly where those choices are informed ones predicated upon adequate preparation. Id.; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

B. Trial Counsel

(1) Failure to Inve stigate

The petitioner claims that trial couns el was ine ffective in failing to adeq uately investigate the crime scene. He argues that trial counsel should have requested access to the victim’s home and photographed the interior of the house. He m aintains th at coun sel’s failure to inspe ct the in terior of the victim ’s home left him unable to cross-examine the victim regarding her account of the incident.

Newman testified tha t he too k pho tograp hs of th e exter ior of the victim’s home, but did not attempt to enter the victim’s home. He stated that he did not think photographs of the interior of the victim’s home would have been significant. The trial co urt agree d, stating “[t]he fact Mr. Ne wma n didn’t go into the house didn’t add anything to it. He had to know the State wa s going to

-17-provide a layout of the house and that that would be looked into thoroughly. I don’t know if he wo uld’ve seen anything different, had he gone in. And I certain ly would n’t let him -- have let him take the Defe ndant in.” Furthermore, the trial court fo und th at trial co unse l “obviou sly researc hed [the case], . . . investigated it and prep ared as thoroug hly as a law yer could possibly p repare it.”

Trial counsel’s decision not to enter and photograph the inside of the victim’s home was a tactical one, which this Court is not free to second-guess. Moreover, the petitioner has not shown how he was p rejudic ed by tr ial cou nsel’s failure to obtain photographs of the interior of the victim’s hom e. The m ere allegation that trial counsel might have discovered evidence with which to cross-examine the victim does not establish a reasonable probability that the result of the proc eeding would h ave bee n different.

This issu e is withou t merit.

(2) Failure to Interview State’s Witnesses

In his next allegation of ineffective assistance of counsel, the petitioner claims that trial counsel was ineffective for failing to “interview key witnesses who testified for the State despite the fact that credibility of witnesses was the most critical issue before the jury.” However, this issue was not presented in the petition for post-co nviction relief n or any of its subse quent a mend ments . Issues not raised in the post-conviction petition cannot be raised for the first time on appe al. See Jimm y Earl Lofto n v. State, C.C.A . No. 02C01-9603-CR-00073, 1997 Tenn . Crim. A pp. LEX IS 219, at *2, Shelby County (Tenn. Crim. App. filed March 7, 1997, at Jackson). A post-conviction petition “must necessarily rest upon and be determined by the factual allegations it conta ins.” Long v. S tate, 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974). This issue is, therefore, waived.

(3) Failure to Object

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The petitioner also claims that trial counsel was ineffective for failing to object to the testimony of various state witnesses in several respects. First, he argues that witnesses w ere improp erly allowed to testify conc erning the victim ’s reputation for truthfulness when her character for truthfulness had not been attacked. He furthe r conten ds that a s tate’s witne ss was allowed to testify concerning the workings of the victim’s alarm system as well as regarding the victim’s habits. Finally, the petitioner argues that se veral witnesses w ere improperly allowe d to give “fresh com plaint” testimony.

a.

With regard to the petitioner’s allegations that trial counsel was ineffective for failing to object to testimon y regarding the victim ’s credibility, the workings of the alarm system and the victim’s habit, these issues were not prese nted in the post-conviction petition and are, acc ordingly, waived. See Jimmy E arl Lofton v. State, 1997 Tenn. Crim. App. LEXIS 219, at *2.3

b.

The petitioner further argues that trial counsel was ineffective for failing to object to “fresh complaint” testimony. He specifically refers to the testimony of Lori Gold, Susan Hackney and Chuck Flood and contends that these witnesses were improp erly allowed to testify that the victim told each of them that she was raped. He ass erts that this “fre sh com plaint” testim ony wa s imp roper ly admitted and, therefore, im properly bolstered the victim’s credibility.

i. Lori Go ld

Prior to trial, defens e coun sel stated an objec tion to the state’s fresh complaint witnesses and requested a jury-out hearing for the trial cour t to determine whether such testimony was proper under the doctrine of fresh

3 The petitioner acknowledges that these issues were not in the post-conviction petition but urges this Court to find “plain error” under principles of due process. This we decline to do.

-19-comp laint. Prior to Gold’s testifying, the trial court conducted a jury-out hearing to determine whether her testimony qualified as “fresh complaint.” The cou rt allowed Gold to testify conc erning h er conve rsations w ith the victim the morning after the rape. The trial court then instructed the jury that G old’s te stimo ny cou ld be considered as corroboration of the victim’s testimony regarding the rape.

Under the doctrin e of fresh c ompla int, the fact tha t a rape victim made an imme diate complaint about the rape is admissible as corroborative evidence in the prose cution ’s case-in c hief. State v. Kendricks, 891 S.W.2d 597, 601 (Tenn. 1994). The petitioner conce des tha t trial counse l objected to Gold’s testimony as fresh complaint, but claims that trial counsel did not object to Gold’s testifying as to the details of the com plaint. He asserts th at the details of the com plaint are inadmissible pursuant to State v. Kendricks, 891 S.W.2d at 603.

Howeve r, Kendricks was n ot relea sed u ntil one year after the petition er’s trial. At the time of trial, the details of the com plaint were properly admissible. See State v. Lewis , 803 S.W.2d 260, 263 (Tenn. Crim. App. 1990) (stating that “the prosecution may prove details of the fresh complaint as a legitimate means of bolstering the victim’s testimony in a sex-related offense.”). Moreover, the holding in Kendricks was limited to the e xtent that the details of the co mplaint are admissible once the credibility of the victim has been attacked. Kendricks, 891 S.W.2d at 603. In this case, the victim testified previous to Gold, and the victim ’s credibility had been vigorously attacked through cross-examination. Therefore, trial counsel was not ineffective for failing to object to the details of the fresh complaint through the testimony of Lori Gold.

ii. Susan Hackney and Chuck Flood

The petitioner also claims that Susan Hackney and Chu ck Flood we re impro perly allowed to give fresh complaint testimony. However, neither Hackney nor Flood testified that the victim stated that she had been raped. The doctrine

-20-of fresh complaint was developed in order to admit evidence which otherwise would be exc luded unde r the he arsay rules. F resh c omp laint is not implicated unless the testimony is he arsay testimo ny. Both testified that they had a conversation with the victim , but did no t testify as to what the y convers ed abo ut. This testimony does not constitute fresh complaint, and trial counsel was not ineffective fo r failing to obje ct.

Both Hackney and Flood testified regarding the victim’s demeanor and behavior in the d ays follo wing th e incident. The petitioner claims that trial counsel should have objected to this testimony as well. However, evidence regarding the victim’s behavior after the incide nt is certainly relevant to the issue of rape versus consent. Tenn. R. Evid. 401. Such testimony is not inadm issible simp ly because it is unfavorable to the petitioner. This testim ony wa s prop erly admis sible, and trial couns el was no t ineffective for fa iling to objec t.

This issu e has n o merit.

(4) Failure to Secure Phone Logs

The petitioner n ext claims that trial coun sel was in effective for fa iling to review the victim’s telephone logs until the morning of trial. After the victim began receiving telepho ne calls from the petitioner, she recorded the date and time of every incoming telephone call to her residence. The state introduced these “telephone logs” into evidence in its case-in-chief. The petitioner argues that counsel provided deficient performance by failing to review these logs until the day of trial, even though su ch logs were made availab le by the state p rior to tria l. However, the petitioner has not demonstrated a reaso nable p robability that the result of the proceed ing would ha ve been different had counsel reviewed the logs earlier. Therefore, even if counsel was de ficient in failing to secure the telephone logs prior to trial, the petitioner has not demonstrated how he was prejudiced by this alleged deficienc y.

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This issu e is withou t merit.

(5) Failure to Challenge the Indictment

The petitioner further contends that trial counsel was ineffective for failing to challeng e the indic tment on seve ral grounds. First, he asserts that the indictment was deficient for failing to allege the requisite mens rea. Secondly, he maintains that the superseding indictment was the result of prosecutorial vindictivene ss. Finally, he urges that the indictment was improper under Tenn. R. Crim. P. 8(a ).

As previously stated, the indictment at issue wa s not defic ient for failing to allege the req uisite mens rea under State v. Hill, supra. Ther efore, c ouns el’s perfor man ce is no t deficie nt for failin g to ob ject on this ground. Similarly, there is no evidence of prosecutorial vindictiveness with regard to the superseding indictme nt. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1977). Counsel was not ineffective for failing to challenge the indictment on this gro und a s well.

Tenn . R. Crim . P. 8(a) pro vides, in pe rtinent part:

Two or more offenses shall be joined in the same indictment, presen tment, or information, with each offense stated in a sepa rate count, or conso lidated pu rsuant to Rule 13 if the offenses are based upon the same conduct or arise from the same criminal episode and if such offense s are known to the appropriate prosecuting official at the time of the return of the indictme nt(s), presentment(s), or information(s) and if th ey are within the jurisdictio n of a single co urt.

The Advisory Commission Com ments to the rule n ote that it “is de signed to encourage the disposition in a single trial of multiple offenses arising from the same conduct and from the same criminal episode, and sh ould ther efore pro mote efficiency and econ omy.” See also King v. Sta te, 717 S.W.2d 306, 307-08 (Tenn. Crim. App . 1986).

The petitioner fails to allege why the indictment was improper under Tenn. R. Crim . P. 8(a ), but m erely claims th at such is a possib ility. Regardless, Tenn.

-22-R. Crim. P. 8(a) does not preclude the state from seeking a superseding indictment prior to a defendant’s trial on the original indictment. We fail to see the impropriety in the original or superseding indictment under this rule, and trial counsel was not ineffective for failing to object to the indictment on this basis.

This issu e has n o merit.

(6) Failure to Challenge Convictions Under Double Jeopardy

The petitioner argues that his convictions for aggravated rape and two (2) counts of attempted ra pe were im proper und er principles of double jeo pardy; therefore, trial counsel was ineffective for failing to challenge Counts Two and Three of the in dictm ent on doub le jeopardy grounds. Newman testified at the post-conviction hearing that he researched the possibility that the attempt charges would be ba rred under princ iples of double jeo pardy. Furthermore, he discussed this issu e with a ppella te cou nsel, Jeffrey DeVasher. Newman further testified, “it was my interpretation that, based upon the facts that these were separa te acts with separa te intents, se parate orifices were -- were utilized, and that my un dersta nding of the la w then and m y unde rstand ing of th e law n ow is that they would co nstitute separate o ffenses.”

It is undisputed that double jeopardy law under our state constitution has evolved significantly since the pe titioner’s trial in 1993. Ou r Suprem e Court opinions in Phillips, Denton and Barney were not released until years after the petitioner was convicte d. Tria l coun sel tho rough ly resea rched the do uble jeopardy issue, but concluded that such was not a viable issue. Other jurisdictions adhere to the view that counsel should not be deemed ineffective for failing to assert error based upon law wh ich is unsettled . See Ex parte Welch 981 S.W.2d 183, 18 4 (Tex. C rim. App . 1998); Nuckle s v. State, 691 S.W.2d 211, 214 (Ind. Ct. Ap p. 1998 ); Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996); State v. Bayles, 551 N.W.2d 600, 610 (Iowa 19 96); Dom berg v. Sta te, 661

-23-So.2d 285 , 287 (Fla. 1995 ); State v. McMahon, 519 N.W .2d 621 , 628 (W is. Ct. App. 1994). We agree with such a view. Regardless of whether these cases would stand scrutiny under Denton, we refuse to find counsel ineffective for failing to fores ee ch ange s in the law wh ich occ urred years a fter the p etitione r’s trial.

This issu e has n o merit.

C. Appellate Counsel

In his next issue, the petitioner asserts that appellate counsel was ineffective for failing to as sert the ind ictment and double jeopardy issues on appe al. He furthe r claims th at appellate couns el was ine ffective for failing to contest the trial c ourt’s ru ling reg arding Lori G old’s fre sh co mpla int testimony. Howeve r, the pe titioner d id not c ontes t the effe ctivene ss of a ppella te cou nsel in his petition. The failure to assert this issue in the petition becomes partic ularly significant in that appellate counsel did not tes tify at the post-conviction hearing. The petitioner re cognize s this significa nce in his brief, stating, “the State failed to elicit testimony from appellate counsel at the post-conviction hearing, and th is Court may not assume that appella te cou nsel co nside red an d strate gically rejected these claims.” However, the state had no notice that ap pellate coun sel’s effectiveness was challenged due to the petitioner’s failure to raise this issu e in the post-con viction petition . Moreover, the trial court made no factual findings with regard to appellate counsel as a result of the petitioner’s failure to raise the issue in the petition or at the hearing. As a result, this Court is precluded from considering this issue.

REASONABLE DOUBT JURY INSTRUCTION

In his final issue, the petitioner conten ds that the “reaso nable doub t” jury instruction given b y the tria l court w as co nstitutio nally infirm because it included

-24-the phrase “moral c ertainty.” He relies on Rickman v. Dutton, 864 F. Supp. 686, 708-09 (M.D. Ten n. 1994), for the pro position that the ph rase “mora l certainty” uncon stitutionally low ers the sta te’s burde n of proo f.

The trial court instructed the jury as follows:

Reasonable doubt is a doubt based upon reason and common sense. It is a doubt which wo uld caus e a reas onable person to hesitate to act in a reasonable matter of importance in his or her personal life. Proof beyond a reason able do ubt mu st, therefore, be proof of such a convincin g chara cter that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. A reasonable doub t is not a cap rice or wh im; it is not a speculation or suspicion. It is not an excuse to avoid the performan ce of an unp leasant duty. An d, it is not sympathy.

Rea sona ble doubt is a high burden, but it does not mean proof to an absolute certainty. While absolute certainty of guilt is not demanded by the law to convict of any criminal charge, moral certainty is required as to eve ry element of the offense. Your mind must re st easily as to the certa inty of guilt.

In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the United States Supreme Court expressed criticism of the continued use of the “moral certain ty” phra se. Ho weve r, the C ourt did not ac tually ho ld that it was cons titutiona lly invalid. Instea d, the Co urt looked to the full jury ch arge to determine if the phrase was placed in such a context tha t a jury would understand that it meant certainty with respect to huma n affairs. 51 1 U.S. a t 13-17, 1 14 S.C t. at 1247-48. In particular, the Court was concerned with the terms “grave uncertainty” and “actual substan tial doubt.” Cage v. Louisiana, 498 U.S. 39, 41, 111 S.C t. 328, 329 -30, 112 L.Ed.2d 339 (19 90).

Although the phrase “moral certainty” was included in the “reasonable doubt” jury instruction, the terms of particular concern to the United States Supreme Court were not included in the charge. This Court h as co nsiste ntly uphe ld similar instructions as congruous with cons titutional princ iples. Pettyjohn v. State, 885 S.W.2d 364, 365-66 (Tenn . Crim. A pp. 199 4); State v. Hallock, 875

-25-S.W.2d 285, 294 (Tenn. Crim. App. 1993). Moreover, our Supreme Court has held that “the use of the phra se ‘mo ral certainty’ b y itself is insufficien t to invalidate an instruction on the m eaning of reas onable dou bt.” State v. Nich ols, 877 S.W .2d 722 , 734 (T enn. 19 94), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). The charge given by the trial court, although containing the phrase “moral certainty,” was constitutionally valid.

This issu e is withou t merit.

CONCLUSION

After thoroug hly reviewin g the rec ord befo re this Co urt, we conclude that the trial court properly denied the petition for p ost-con viction relief. Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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