The opinion
07/16/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 8, 2020
RAYMOND DENTON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 11-02711 Chris Craft, Judge
___________________________________
No. W2019-00500-CCA-R3-PC
___________________________________
The Petitioner, Raymond Denton, appeals the Shelby County Criminal Court’s denial of
his petition for post-conviction relief, seeking relief from his convictions of aggravated
rape, aggravated burglary, and physical abuse of an impaired person and resulting effective
ninety-year sentence. On appeal, the Petitioner claims that he received the ineffective
assistance of counsel because trial counsel failed to obtain an expert to rebut the State’s
expert regarding penetration; failed to object to medical opinions given by the victim’s
granddaughter, who was not an expert; and failed to object to the prosecutors’ improper
closing arguments. Based upon the record and the parties’ briefs, we affirm the judgment
of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ALAN E. GLENN, JJ., joined.
Robert Golder (on appeal) and Michael Working (at hearing), Memphis, Tennessee, for
the appellant, Raymond Denton.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd and Chris
Lareau, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
A Shelby County Criminal Court Jury convicted the Petitioner of aggravated rape,
a Class A felony; aggravated burglary, a Class C felony; and physical abuse of an adult, a
Class C felony, and the trial court sentenced him as a career offender to consecutive
sentences of sixty, fifteen, and fifteen years, respectively. See State v. Raymond Denton,
No. W2012-01686-CCA-R3-CD, 2013 WL 6529333, at *1 (Tenn. Crim. App. at Jackson,
Dec. 10, 2013). On direct appeal of his convictions to this court, this court gave the
following account of the crimes:
Generally, the State’s proof showed that on the night of November 8, 2010,
the 75-year-old victim was at her home watching television when Defendant
broke into her home by kicking in her back door. Defendant demanded the
victim’s money. When told by the victim that she had none, Defendant told
her he wanted to “f* * *” her. Defendant proceeded to sexually assault the
victim for at least two hours. In the course of this, the victim was injured and
as a result required hospitalization. When the nude Defendant fell asleep,
the victim crawled out from underneath him, got to her telephone, and called
9-1-1. When police arrived shortly thereafter, Defendant was still on the
floor asleep and was handcuffed and taken to jail. The victim was taken to a
rape crisis center and from there to a hospital.
As to the specific element of sexual penetration, the testimony was as
follows. Memphis police officer Brandon Berry was the first officer to arrive
at the scene. After the nude Defendant, who was asleep on the floor, had
been handcuffed and placed into a patrol car, Officer Berry spoke with the
victim. She appeared withdrawn, nervous, scared, frail, and her hair was out
of place. The victim told Officer Berry that Defendant, after breaking into
the house, pulled the victim from the chair in which she sat, took off her
clothes and his own clothes, and began the sexual assault on the floor. She
told Officer Berry that Defendant’s assault went on for a long period of time,
and that Defendant was choking and “smothering” her. Officer Berry
testified that the victim said that Defendant tried to put his penis in her but
he “couldn't get anywhere.”
The victim testified that she was watching television in her home late
on the night of November 8, 2010. She heard Defendant burst in her locked
back door. She did not know Defendant. He first demanded her money.
When she told him she had no money, Defendant said he wanted the next
best thing-he wanted to “f* * *.”
Defendant grabbed both of the victim’s arms and threw her on the
floor. He removed her clothing, which was her pajamas, and he removed his
own clothes. She testified that Defendant began “feeling” on her privates.
She specifically stated that, “after [Defendant] pulled my clothes off and
throwed me down on the floor, then he had sex with me.” Defendant was
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also choking the victim and she testified she was going “in and out” of
consciousness while defendant choked her.
The victim testified that Defendant had a difficult time maintaining an
erection and that he would rub his penis on her legs and her private areas
when he would lose an erection. During cross-examination, the victim, 75
years old at the time of the crimes, reiterated that Defendant was trying really
hard to rape her, but he was having a difficult time maintaining an erection.
She clarified that at the point when she was at the rape crisis center, when
she told that Defendant “tried” to rape her, she was unaware that Defendant
had in fact raped her. The victim testified that she knew Defendant had raped
her when she found out she “had that stuff on [my legs].” Further, during
cross-examination, Defendant’s attorney asked the victim, “so [Defendant]
couldn't get his penis in you, could he?” The victim responded, “Yeah, he
did, he would rub me.”
Frazel Bennett, a registered nurse and one of the victim’s
granddaughters, went to the victim’s home on the night of the crimes after
being called by the victim at 3:19 a.m. on November 9, 2010. She found the
victim sitting in her chair in a large pool of blood. The blood was from the
victim’s vaginal area. She and her sister took the victim to the rape crisis
center. Ms. Bennett observed the examination performed on the victim by
the nurse practitioner at the rape crisis center. Ms. Bennett saw a laceration
on the victim’s vagina “down like an episiotomy type of laceration.”
Sergeant Stephen Wilkerson of the Memphis Police Department
interviewed the victim on November 10, 2010. The victim told Sergeant
Wilkerson that Defendant did not penetrate her, saying Defendant “couldn't
get it in because it wouldn’t stay hard.”
Judy Pinson, a [nurse] practitioner employed at the Memphis rape
crisis center for twenty-five years, testified that she performed an
examination of the victim, who arrived at the rape crisis center on November
9, 2010, at 7:30 a.m. Ms. Pinson was permitted to testify at trial as an expert
witness as a forensic nurse practitioner with a specialty in the field of sexual
assault examinations. The victim told Ms. Pinson in general terms what had
happened during the assault, including stating that Defendant had, in Ms.
Pinson’s words, “attempted vaginal penetration.” This was written in Ms.
Pinson’s report. Ms. Pinson was unable to use a speculum to look inside the
victim’s vagina due to an attempt to do so was too painful for the victim. The
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standard report form did not have a place for the nurse practitioner to place
any expert medical related opinion.
During Ms. Pinson’s examination of the external area of the victim’s
private areas, she saw a superficial laceration of the labia majora. Also, Ms.
Pinson observed a laceration at least two inches long beginning at the
posterior fourchette which extended into the perineal area, which she testified
was the area between the vagina and the anus. Ms. Pinson noted that the
victim was bleeding from this laceration. The significance of Ms. Pinson’s
observations concerning the two-inch laceration is shown in this excerpt
from her direct examination by the State:
Q. Okay. This injury that you described, not the superficial
injury to - - but the laceration between her vagina or the
fourchette, up into the perineum, do you have an
opinion based on your education, thousands of exams
that you’ve done, as to whether or how that injury was
received, what mechanism?
A. There was penetration of her vagina. We many times
don’t see injuries in rapes or sexual assaults. It’s fairly
common not to see injury. And there aren’t very many
things that we can say for sure come from a penetrating
injury but this is one of them. Injuries to the posterior
fourchette don’t come from anything else except
something going into the vagina.
Q. Does the fact that [she] gave you a history of attempt
penetration, did that in any way change your opinion
about what had happened and what you saw and your
conclusions?
A. No. Because I don’t have - - I have no knowledge of
what somebody - - of what somebody’s definition of
penetration is. I don’t know if - - I don’t know what
[she] thinks penetration is. I don't know if - -
Q. What do you call penetration, because you called this a
penetrating, something penetrated the vagina?
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A. Something had to have gone into the vagina to make that
kind of injury. There’s no other way to get an injury
like that.
Q. And because you were not able to look inside her, do
you have any opinion at all about how far the something
had to go inside of her to cause the tear that was several
inches?
A. It only has to go in far enough to cause the injury and
because that area which is the posterior fourchette is the
first place that a penis would enter or anything would
enter that went - - to go inside of her, that’s why we say
that that’s - - that’s the only way that you - - that’s the
only time we see that kind of injury. It’s the first - - the
first plane of entry to the vagina.
Defendant did not testify or offer any other proof.
Id. at *2-4.
On direct appeal of his convictions, the Petitioner claimed only that the evidence
was insufficient to support the conviction of aggravated rape because the State failed to
prove the element of penetration. Id. at *1. This court found the evidence sufficient to
support the conviction of aggravated rape, explaining,
Any intrusion into the vagina, “however slight” is sufficient to meet
the statutory definition of sexual penetration, an essential element of
aggravated rape. [See Tenn. Code Ann. §§ 39-13-501(7), -502.] The victim
made some statements that Defendant attempted to rape her, and a jury could
infer from that statement that no sexual penetration occurred. On the other
hand, the victim testified that she initially believed Defendant had not raped
her when she was at the rape crisis center, but she clarified that she later
learned that he did, in fact, rape her. The victim testified that she was
“choked” and “smothered” by Defendant during the sexual assault which she
said lasted about two hours. She testified that she passed “in and out” of
consciousness. She was bleeding from a laceration in her vaginal area. An
expert witness conclusively stated that in her opinion the laceration had to
have been caused by penetration of the vagina.
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All of these facts were presented to the jury. Taken in the light most
favorable to the State, there is sufficient evidence of unlawful sexual
penetration to sustain Defendant’s conviction for aggravated rape.
Id. at *4. Accordingly, this court affirmed the Appellant’s convictions. Id. at *5.
Less than one month after this court filed its opinion, the Petitioner filed a pro se
petition for post-conviction relief, claiming that he received the ineffective assistance of
counsel. The post-conviction court appointed counsel, and post-conviction counsel filed
an amended petition for post-conviction relief. Relevant to this appeal, the Petitioner
alleged in the amended petition that trial counsel was ineffective because he failed to obtain
an expert to rebut Judy Pinson’s testimony regarding penetration; failed to object to
medical opinions given by Frazel Bennett, who was not an expert; and failed to object to
the prosecutors’ improper closing arguments.
The post-conviction court held evidentiary hearings on May 26, 2016, December 1,
2017, and October 19, 2018. At the first hearing, trial counsel testified for the Petitioner
that he began working for the public defender’s office in 1998 and was appointed to the
Petitioner’s case. Trial counsel talked with the Petitioner in court and in jail, and they “had
quite a lot of communication.” An investigator assisted trial counsel, and trial counsel
reviewed discovery. The sole issue was whether the Petitioner penetrated the victim, and
Judy Pinson testified for the State at trial about penetration. Trial counsel said he did not
consider using an expert to rebut Ms. Pinson’s testimony and explained as follows:
The problem in this case is, one, there were no pictures. So what the
expert - - if we were going to have an expert, the only thing they would have
been reviewing is the notes of the Rape Crisis nurse and her drawings.
And then the other problem is that the requirement for the State to
prove penetration in a rape case is so small that having an expert to discuss
whether penetration occurred at all can be very much a double-edged sword
because on cross-examination the [question] can be asked, “Well could
penetration have occurred and left nothing?” And, frequently, penetration
leaves no evidence of penetration because the requirement is so minimal that
it doesn’t require much.
Trial counsel testified that the perpetrator’s identity was not an issue and
acknowledged that the facts of this case were “difficult.” He noted that the Petitioner “was
arrested face down on her floor” and “was only wearing one sock when he was arrested.”
Trial counsel stated that he “vaguely” remembered reviewing the Rape Crisis Center report
with Ms. Pinson and that he thought he briefly discussed the case with Mark Alston, an
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attorney in the public defender’s office who also was a nurse. Trial counsel said Ms.
Pinson’s drawing “showed some scratches” in the victim’s vaginal area. There also was
testimony about blood in the victim’s vaginal area. Trial counsel said that he reviewed the
medical evidence before trial and that he concluded “an expert wasn’t going to help” the
defense.
Trial counsel acknowledged that Frazel Bennett was present during the victim’s
forensic examination. Trial counsel also acknowledged that Ms. Bennett was a nurse and
that she testified at trial about her “personal observations” during the examination. Trial
counsel said he did not object to Ms. Bennett’s testimony because she was an “eyewitness”
and because “I don’t know what my objection would have been at that point.” Trial counsel
did not think Ms. Bennett’s testimony “really expanded things” against the Petitioner.
Trial counsel testified that the defense’s theory was lack of penetration. He said he
considered that theory “problematic,” though, because the State had some proof of
penetration and because the evidence the State needed to prove penetration was “almost
nothing.” Trial counsel stated, “[I]f someone spends three hours trying to rape somebody,
even with a flaccid penis, penetration pretty much has occurred multiple times.” Trial
counsel said that although the victim claimed the Petitioner “attempted” to penetrate her,
“we know that what a lay person says about attempted rape, from a legal perspective, often
is rape.” Nevertheless, trial counsel hoped the jury “would rely on what the victim actually
said.”
Trial counsel testified that during the State’s closing argument, the prosecutor was
“a little angry” but was “calm.” In trial counsel’s closing argument, he “went back point-
by-point through all the times [the medical records] said attempted rape, everywhere it said
attempted rape, and tried to focus on that instead of the actual medical proof.” Trial counsel
tried to be “very dispassionate” in his closing argument and tried to “take all the anger and
hate out of it that might have been direct towards [the Petitioner].” After defense counsel’s
closing argument, the second prosecutor “hopped up” and was “very aggressive and very
angry” in her rebuttal closing argument. Trial counsel said that the second prosecutor was
reacting to what trial counsel had argued and that the second prosecutor “played into [trial
counsel’s] hands” by being angry. However, at some point, the second prosecutor was
“kind of getting in [the Petitioner’s] face,” and the Petitioner looked “very, very angry.”
Trial counsel thought the second prosecutor was “making the courtroom unsafe,” so trial
counsel asked to approach the bench and advised the trial court that he thought the
Petitioner was going attack one of the prosecutors. Trial counsel said that some of the
prosecutors’ statements were objectionable and that the prosecutors “probably” expressed
personal opinion of the Petitioner’s guilt. Trial counsel did not object, though, because he
thought the second prosecutor’s demeanor helped the defense and helped trial counsel’s
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strategy. Trial counsel hoped the second prosecutor’s anger would cause the jury to think
about trial counsel’s closing argument and “take a calm, reasoned approach.”
On cross-examination, trial counsel testified that he graduated from law school in
1992 and began practicing civil law. Trial counsel’s first criminal trial occurred in 1999,
and the Petitioner’s trial was in April 2012. Trial counsel said that this case was “the most
factually difficult case” he had ever tried, noting that the Petitioner removed the victim’s
Depends undergarment during the incident.
Trial counsel testified that even if a defense expert had testified at trial that there
was no physical proof of penetration, he did not think the expert would have been helpful.
Trial counsel clarified that the victim’s injuries were “tears,” not “scratches.” He said that
he did not object to Ms. Bennett’s testimony because he thought she was testifying about
her observations. Trial counsel also “didn’t want to get too much into challenging” Ms.
Bennett, who was the victim’s granddaughter, because he did not want to anger the jury.
Trial counsel said he did not think Ms. Bennett’s testimony hurt the defense “that much”
because Ms. Bennett “was testifying as to what she saw.”
Trial counsel acknowledged that at the time of the Petitioner’s trial, he was
“intimately familiar” with the victim’s medical records. He also acknowledged that during
his closing argument, he pointed out to the jury that the victim’s medical records said
“attempted penetration” or “no penetration” eight times. Specifically, trial counsel argued
to the jury, “‘So let’s count them. One, two, three, four, five, six, seven, eight incidents,
attempted penetration, no penetration, no vaginal rape.’”
At the second evidentiary hearing, Cari Caruso testified for the Petitioner as an
expert in sexual assault examination that she was “a board certified sexual assault nurse
examiner” whereas Judy Pinson was a nurse practitioner and was not board certified in
sexual assault.1 Ms. Caruso said that she had performed thousands of sexual assault
examinations but that she had never worked in Tennessee or performed an examination in
Tennessee.
Ms. Caruso testified that she reviewed Ms. Pinson’s report regarding the victim’s
forensic examination and Ms. Pinson’s trial testimony. Ms. Caruso said that it was
“standard procedure” to take photographs during an examination but that Ms. Pinson did
not take any photographs. Ms. Caruso stated that she also had “some issues” with Ms.
Pinson’s report. First, Ms. Pinson wrote in her report that a laceration was on the victim’s
posterior fourchette and that the laceration was “several inches in length.” Ms. Caruso
1
In the post-conviction court’s order denying post-conviction relief, the court noted that Caruso
testified via Skype.
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explained that the posterior fourchette was considered part of a woman’s external genitalia
and that the length of the posterior fourchette was about one inch; therefore, the victim’s
injury could not have been several inches in length. The second issue Ms. Caruso had with
Ms. Pinson’s report was that Ms. Pinson described “vaginal bleeding.” However, Ms.
Pinson did not quantify the amount of blood, so Ms. Caruso could not determine whether
the victim actually experienced bleeding from her vagina. Ms. Caruso noted that vaginal
tears sometimes required extensive treatment such as surgery but that the victim did not
need surgery. Ms. Caruso said Ms. Pinson should have been more specific about the
bleeding and should have photographed the bleeding. Ms. Caruso stated that she was not
saying the victim did not experience vaginal bleeding but that she did not have enough
information to make that determination.
Ms. Caruso explained that as a woman aged, her anogenital area became less
flexible and more vulnerable to injury by sexual contact or by general contact such as
rubbing with a washcloth. Therefore, the elderly victim could have been “quite easily
injured” during her encounter with the Petitioner. Ms. Caruso said that in her opinion,
photographs were “absolutely critical” in a sexual assault examination. She said, though,
that even if Ms. Pinson had taken photographs in this case, she would have been unable to
determine from the photographs whether the Petitioner penetrated the victim because
penetration did not always result in “findings” during an examination. Ms. Caruso stated
that penetration “very well could have occurred” in this case but that “I just can’t say one
way or the other.”
Judy Pinson testified for the Appellant that she had listened to Ms. Caruso’s
testimony. Ms. Pinson acknowledged that Ms. Caruso was correct in that the injury to the
victim’s posterior fourchette could not have been several inches in length. Ms. Pinson said
that she “misstated” the length at trial and that she “threw out inches when it’s not.” Ms.
Pinson stated that the victim was “very reluctant to have an exam” and that the victim
“seemed to be very embarrassed by the whole situation.” Therefore, Ms. Pinson decided
not to take photographs during the victim’s examination. Ms. Pinson said the “vaginal
bleeding” in her report came from the victim’s “history.” When Ms. Pinson wrote “vaginal
bleeding” in her report, she did not know from where the victim was bleeding. During the
victim’s examination, Ms. Pinson saw that the victim was bleeding from her posterior
fourchette. Ms. Pinson acknowledged that the victim’s injury was an external injury. On
cross-examination, Ms. Pinson agreed with Ms. Caruso’s testimony that photographs
would not have helped determine whether penetration occurred in this case.
At the third evidentiary hearing, the Petitioner testified that he met with trial counsel
when the Petitioner came to court. Trial counsel met with the Petitioner one time in jail
right before the Petitioner went to trial. The Petitioner said that trial counsel never
discussed obtaining an expert and that a defense expert could have contradicted the State’s
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expert regarding penetration. The Petitioner said that if trial counsel had hired a defense
expert, the outcome of his trial may have been different. The Petitioner used his own prison
money to hire Ms. Caruso to testify as an expert at the evidentiary hearing.
In a written order, the post-conviction court denied the petition for post-conviction
relief. Regarding the Petitioner’s claim that trial counsel was ineffective for failing to have
a defense expert rebut Judy Pinson’s testimony, the post-conviction court found that a
defense expert would not have changed the outcome of the Petitioner’s trial because Cari
Caruso testified that even if Ms. Pinson had taken photographs during the victim’s forensic
examination, Ms. Caruso would not have been able to determine from the photographs
whether penetration occurred. As to the Petitioner’s claim that trial counsel was ineffective
for failing to object to Frazel Bennett’s testimony, the post-conviction court found that
although Ms. Bennett was never qualified as an expert witness, Ms. Bennett was not asked
to give an expert opinion and properly testified as a lay witness.
Finally, the post-conviction court addressed the Petitioner’s claim that trial counsel
was ineffective for failing to object to the prosecutor’s rebuttal closing argument. The
post-conviction court stated that the prosecutor’s rebuttal argument was “extremely
emotional, loud and passionate” and that she was “yelling and pointing at the petitioner.”
The post-conviction court noted that during the argument, trial counsel asked to approach
the bench because he was concerned the Petitioner was going to attack the prosecutor.
Nevertheless, the post-conviction court accredited trial counsel’s testimony that he did not
object to the prosecutor’s argument because her demeanor and anger were part of trial
counsel’s trial strategy. The post-conviction court explained as follows:
In a careful reading of [trial counsel’s] closing argument, he appeared
to pursue this theory to the letter. . . . [Trial counsel stated,] “It’s not about
yelling and screaming and getting revenge for [the victim].” He explained
that was not their job, and discussed the facts casting reasonable doubt on his
guilt of some of the elements. It is entirely understandable that when [the
prosecutor] began [the prosecutor’s] rebuttal with yelling and screaming in
anger that he did not object, as [the prosecutor] was proving his point,
reminding them that he was trusting the jury to remain dispassionate when
doing its job, as it could not trust the State to be dispassionate.
This court distinctly remembers this particular closing argument, as
this was one of the most hopeless cases this court has tried in over 40 years
as a defense attorney, prosecutor or judge, and this court was very curious as
to whether the defense attorney would be able to find anything to say that
would be of benefit to the petitioner. His closing argument was exceptional,
in this court’s opinion, and the State’s loud, angry rebuttal argument did seem
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to play right into the hands of the defense. However, it was not enough to
overcome the testimony of the victim and the facts of the case, which were
extremely powerful.
The post-conviction court stated that trial counsel’s decision not to object was “sound trial
strategy” and that the post-conviction court would not second-guess that strategy.
Accordingly, the post-conviction court denied the petition for post-conviction relief.
II. Analysis
The Petitioner claims that he received the ineffective assistance of counsel because
trial counsel failed to obtain an expert to rebut Ms. Pinson’s expert testimony regarding
penetration; failed to object to medical opinions given by Ms. Bennett, who was not an
expert; and failed to object to the prosecutors’ improper closing arguments. The State
argues that the Petitioner has failed to show that he received the ineffective assistance of
counsel. We agree with the State.
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled
to substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish deficient performance, the petitioner must show that counsel’s performance was
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below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,
[b]ecause a petitioner must establish both prongs of the test, a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
First, the Petitioner claims that trial counsel was ineffective because Cari Caruso’s
expert testimony would have been “crucial” to his defense. Specifically, the Petitioner
contends that Ms. Caruso “would have leveled the playing field by calling out” Ms. Pinson
for not taking photographs during the victim’s forensic examination and that Ms. Caruso
“would have raised suspicion” about Ms. Pinson’s measurement of the laceration on the
victim’s posterior fourchette. He also contends that Ms. Caruso would have emphasized
to the jury that the laceration was external and could have been caused by actions other
than sexual contact.
The post-conviction court concluded that Ms. Caruso’s testimony would not have
changed the outcome of trial. We agree with the post-conviction court. Ms. Caruso stated
that she could not say the Petitioner did not penetrate the victim. She also stated that
although Ms. Pinson should have taken photographs during the victim’s examination, she
would have been unable to determine from the photographs whether penetration occurred.
At trial, Ms. Pinson testified that she observed the laceration to the victim’s posterior
fourchette during her external examination of the victim and that the injury could not have
been caused by anything but penetration of the victim’s vagina. Although the victim
reported to the police and Ms. Pinson that the Petitioner tried to penetrate her, even trial
counsel was of the opinion that over the course of the Petitioner’s hours-long attack of the
victim, penetration had to have occurred. Therefore, we conclude that even if trial counsel
was deficient for not presenting Ms. Caruso at trial, the Petitioner has failed to demonstrate
that he was prejudiced by the deficiency.
Next, the Petitioner claims that trial counsel was ineffective for failing to object to
Ms. Bennett’s testimony. He contends that Ms. Bennett’s testimony “transcend[ed] to
realm of ordinary experience, and invaded the province of the jury” because she testified
about the nature, source, and cause of the victim’s bleeding; used medical terms such as
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“episiotomy”; and testified about the victim’s other injuries, such as her heart condition,
which probably existed before the attack.
At the evidentiary hearing, trial counsel testified that he did not object to Ms.
Bennett’s testimony because she was an eyewitness to the victim’s examination and did
not give an expert opinion. The post-conviction court found that the Petitioner was not
entitled to relief, explaining,
The prosecutor made a point in her questions of stating she would not ask
Ms. Bennett for an expert opinion and didn’t. Ms. Bennett testified that the
victim went to the hospital for three weeks because of her bruising and heart
attack symptoms, and then started “throwing blood clots,” so that eventually
her health deteriorated to such an extent that she was sent to a nursing home
and never again was able to go back to her home with help as she had been
doing. Ms. Bennett was never qualified as an expert and was never asked to
give an expert opinion. As a lay witness, her testimony was correctly
“limited to those opinion or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the
witness’s testimony or the determination of a fact in issue” pursuant to Tenn.
R. Evid. 701(a). This allegation has no merit.
The Petitioner has not cited to any portion of the trial transcript in which Ms. Bennett
allegedly gave expert opinion testimony and has not provided this court with any examples
of such testimony. Ms. Bennett, who was the victim’s granddaughter and a registered
nurse, personally witnessed the victim’s forensic examination and could describe what she
saw during the examination. Moreover, we do not think her use of common medical terms,
such as “episiotomy,” elevated her testimony to that of a medical expert. Therefore, we
conclude that the Petitioner is not entitled to relief.
Finally, the Petitioner contends that trial counsel was ineffective for failing to object
to the prosecutors’ closing arguments. We note that at the evidentiary hearing, post-
conviction counsel focused on the State’s rebuttal closing argument, and the post-
conviction court only addressed that portion of the argument in its written order. See Tenn.
R. App. P. 36(a). Trial counsel testified that not objecting to the second prosecutor’s
aggressive and angry demeanor was part of his trial strategy in that he was hoping her
demeanor would cause the jury to “take a calm, reasoned approach” to his own closing
argument. The post-conviction court accredited trial counsel’s testimony. Moreover, the
post-conviction court found that the trial transcript supported trial counsel’s testimony and
refused to second-guess trial counsel’s strategy. Likewise, this court may not second-guess
the tactical or strategic choices of counsel unless those choices are based upon inadequate
preparation, nor may we measure counsel’s behavior by “20-20 hindsight.” See State v.
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Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). Accordingly, the Petitioner has failed to
demonstrate that he is entitled to relief.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the
post-conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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