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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs October 2, 2001 BARTON L. HAWKINS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P-22204 W. Otis Higgs, Jr., Judge

No. W2001-00738-CCA-R3-PC - Filed January 18, 2002

A Shelby County jury convicted the Petitioner of rape, and the trial court sentenced him as a Range I violent offender to eight years and one day in the Tennessee Department of Correction. The Petitioner subsequently filed a petition for post-conviction relief. The trial court conducted a postconviction hearing and denied relief. The Petitioner now appeals the denial of post-conviction relief, arguing that he received ineffective assistance of counsel at trial. Specifically, he contends that his counsel (1) failed to aggressively question the victim regarding consent; (2) failed to object to the admission of expert testimony; (3) failed to aggressively cross-examine the prosecution's expert witness concerning her qualifications and her testimony in chief; (4) failed to prepare or investigate the case; (5) failed to object to "prejudicial witness examination and argument regarding the swapping of" a car battery; (6) failed to discuss defense strategy with the Petitioner; (7) failed to question the Petitioner about his knowledge of the victim's previous sexual behavior; (8) failed to review the transcript from the Petitioner's preliminary hearing; (9) failed to offer evidence of an injury to the Petitioner's hand; (10) failed to argue in closing the weight the jury should give testimony by the State's expert witness and failed to object to the State's definition of reasonable doubt in closing arguments; and (11) "failed to raise all probable issues on appeal." Having reviewed the record, we conclude that the Petitioner's representation was not deficient and therefore affirm the judgment of the trial court denying post-conviction relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH M. TIPTON , J., joined. Robert Little, Memphis, Tennessee, for the Appellant, Barton L. Hawkins. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

In 1997, a Shelby County jury convicted the Petitioner, Barton L. Hawkins, of rape. The trial court sentenced him as a Range I violent offender to eight years and one day in the Tennessee Department of Correction. On direct appeal, this Court affirmed the Petitioner's conviction and sentence. See State v. Barton L. Hawkins, No. 02C01-9711-CR-00430, 1998 WL 784743 (Tenn. Crim. App., Jackson, Nov. 12, 1998).1 On November 19, 1999, the Petitioner filed a pro se petition for post-conviction relief. Following appointment of counsel to represent the Petitioner in post-conviction proceedings, the Petitioner subsequently filed an amended petition for post-conviction relief and a second amended petition for post-conviction relief. On November 30, 2000, the trial court conducted a postconviction hearing. On February 27, 2001, the trial court entered its "Findings of Fact and Conclusions of Law on Petition for Post-Conviction Relief" and denied post-conviction relief. It is from the trial court's denial of post-conviction relief that the Petitioner now appeals. The Petitioner contends that he received ineffective assistance of counsel at trial. He argues that he is entitled to post-conviction relief because his attorney: (1) failed to aggressively question the victim regarding consent; (2) failed to object to the admission of expert testimony; (3) failed to aggressively cross-examine the prosecution's expert witness concerning her qualifications and her testimony in chief; (4) failed to prepare or investigate the case; (5) failed to object to "prejudicial witness examination and argument regarding the swapping of" a car battery; (6) failed to discuss defense strategy with the Petitioner; (7) failed to question the Petitioner about his knowledge of the victim's previous sexual behavior; (8) failed to review the transcript from the Petitioner's preliminary hearing; (9) failed to offer evidence of an injury to the Petitioner's hand; (10) "failed to argue in closing the weight the jury should give the State's expert witness's testimony" and failed to object to the State's definition of "reasonable doubt" in closing arguments; and (11) "failed to raise all probable issues on appeal." Having reviewed the record in this case, we conclude that the Petitioner was not denied effective assistance of counsel at trial and therefore affirm the judgment of the trial court. I. FACTS A. Facts Presented at Trial The facts underlying the Petitioner's conviction were summarized by this Court on direct appeal as follows: The victim testified that she was driving home when an unidentified man flagged her down to help the appellant, whose truck had broken down. The problem was apparently a defective battery. After a failed attempt to jump-start the truck, the victim agreed to drive the appellant to his home where he said he could get another battery. The victim stated that upon reaching the appellant's home, the appellant

An application for permission to appeal to the T enn essee Sup rem e Co urt was no t filed in th is case. See Tenn. R. App. P. 11.

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tried to kiss her. She resisted and a struggle ensued, ending with the appellant dragging her "kicking and screaming" into his house. Neighbors of the appellant corroborated that they heard a woman's screams coming from the appellant's home on the night of the rape. The victim testified that, once inside his home, the appellant held up a bandanna and ordered her to sit. The victim asked to use the restroom, and the appellant permitted her but entered the restroom with her to watch. He then ordered her to undress and took her to another room where he vaginally raped her. He also demanded oral sex, and the victim complied. In response to the defense's question why she did not fight or struggle during the rape, the victim stated that she was afraid the appellant would kill her. She stated that she did not consent. Immediately after the rape, the appellant hugged the victim and told her he was sorry. He then drove the victim, in her vehicle, to a gas station where he stopped and went inside, leaving the victim alone in the vehicle for approximately five to ten minutes. The appellant stated that he left the vehicle running with the keys in the ignition. There were other people around the station and the area was well lit. The victim did not attempt to escape or ask for help because, she said, she was afraid that the appellant would kill or hurt her. The appellant then drove the victim back to his truck, switched his battery for hers, and let her go. After reporting the incident some two hours later, the victim was taken to the Memphis Sexual Assault Resource Center where she was examined. Margaret Aiken, the examining nurse, testified that she found scratches on the victim's upper left arm and left clavicle. She also found genital trauma of the posterior fourchette and an abrasion or scrape of that area. These injuries, Aiken testified, were consistent with forced penetration and are not ordinarily associated with consensual sex. When pressed, however, Aiken could not rule out the possibility that such injuries could result from consensual sex. Aiken's examination revealed no further injuries. The victim, however, testified that she had also sustained bruises on her leg, chest, and arms; and the state introduced photographs of these bruises that had been taken two days after the rape. The appellant's version of the facts were that although he did attempt to have sex with the victim, it was consensual. He explained the scratches on the victim as the result of her becoming caught in his climbing rose bush. He explained her screams as the result of his dog frightening the victim. Id. at *1-2.

B. Testimony at Post-Conviction Hearing

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At the post-conviction hearing, the Petitioner testified that his attorney did not adequately investigate or prepare his case. He stated that his counsel "failed to investigate the plaintiff's history. Failed to investigate the plaintiff's friends. Failed to investigate the crime scene. Failed to investigate the personal injury." He specifically complained that his attorney did not interview Margaret Aiken,2 the nurse who examined the victim on the night of the crime, prior to trial. The Petitioner maintained that if his counsel had interviewed Aiken prior to trial, counsel would have fully understood Aiken's "opinion" about the genital trauma and abrasion that the victim sustained, and counsel could have more effectively cross-examined Aiken regarding the issue of "forced entry." The Petitioner also testified that his counsel should have sought an expert to rebut Aiken's testimony. In addition, the Petitioner testified that his attorney failed to discuss defense strategy with him. He stated that he and his counsel did not have a good rapport during trial preparations. He explained, "I felt [that my attorney] was dishonest. . . . I basically was wanting to get another lawyer." However, the Petitioner also admitted that their strained relationship "had a lot to do with [the Petitioner]." He admitted that he was not completely honest with his attorney, stating, "I didn't share with him what actually happened." The Petitioner further testified that he asked his attorney to obtain a copy of the preliminary hearing transcript so that he could examine it for inconsistencies in the victim's testimony. However, he claimed that his attorney failed to obtain the transcript. The Petitioner reported that the victim provided testimony at the preliminary hearing that was inconsistent with her testimony at trial regarding whether her keys were in her car after the crime; whether the Petitioner accidentally knocked her glasses off of her head during the incident; whether the Petitioner "dragged" her into a room in his house or whether she walked into the room; and whether the victim fought the Petitioner during the rape. The Petitioner testified that he asked his lawyer to suppress the statement that he made to police, but that his lawyer "refused to do that." He claimed that his attorney "just mentioned that it wouldn't do any good" and "didn't try." The Petitioner also maintained that his attorney should have objected to the admission of testimony by Margaret Aiken. He complained that his attorney did not object to the prosecution and the trial court referring to Ms. Aiken as "Dr. Aiken," stating, "She wasn't but a nurse. She had a Doctor's degree in mental health." The Petitioner insisted that the fact that all parties involved referred to Ms. Aiken as "Dr. Aiken" caused the jurors to think that "she was a medical expert." In addition, the Petitioner complained that his attorney should have objected to Aiken's testimony after Aiken admitted that she couldn't "rule . . . out" the possibility of consensual sex between the Petitioner and the victim. According to the Petitioner, Aiken testified, "I don't deal with people

We note that the nurse is referred to in the opinion of this Court on direct appeal as "Margaret Aiken," w hile she is referred to in the record of the post-conviction proceedings as "Margaret Akin." For the sake of consistency, we will use the sp elling o f M s. Aiken's n am e that w as used by this Co urt on direct appeal.

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involved with consensual sex as far as my personal knowledge in observing these injuries." The Petitioner asked, "[I]f she didn't have experience in any consensual sex, how could she know whether an abrasion occurred or not? How could she say . . . that it was consistent with forced entry?" The Petitioner also complained that his lawyer should have "asked for cautionary instructions" regarding Ms. Aiken's testimony which apparently would have stated that Ms. Aiken's testimony was her opinion and not that of an expert. The Petitioner further testified that his attorney failed to object to the prosecution asking him "over thirty" questions "on the [car] battery issue." He testified that he believed his lawyer's failure to object to the State's questions left the jury with the impression that after the incident, he abandoned the victim on the side of the road with a bad battery for her car. The Petitioner stated, "Her car was running, I just . . . switched batteries. I knew it would take her home . . . ." The Petitioner was questioned about an injury to his hand that he suffered prior to the crime. He responded, "I don't think it's relevant in this Post Conviction Hearing." He then declined to discuss the matter further. The Petitioner next complained that his attorney failed to make appropriate objections during closing arguments. He claimed that "in the closing argument the prosecutor misled the jurors and confused them, simply by taking the evidence that . . . the nurse gave [and] adding words to it." The Petitioner testified that while Margaret Aiken merely stated that "she couldn't rule it out that it could happen consensually," the State stated in closing arguments that "the only way this abrasion can occur is through forced entry." The Petitioner explained, "Therefore, it's not unmistakable proof and it's not the only way it happened." In closing, the Petitioner listed several objections that he believed his attorney should have made. He stated that his attorney "[f]ailed to object to the Court not allowing medical documents that were in plain English." The Petitioner also stated that his attorney "[f]ailed to object to the prosecutor misconduct, leading the witness, Nurse Atkins [sic]." He testified that his attorney "gave only two . . . contemporaneous objections in trial, that [he was] aware of." He stated, "I just didn't see him being an adversary in the trial at all." Finally, the Petitioner complained that his attorney failed to raise all issues on appeal that could have been raised. Specifically, he stated that his attorney did not raise as an issue the matter of "the nurse being called a doctor." On cross-examination, the Petitioner testified that his lawyer failed to investigate whether the Petitioner's relations with the victim were consensual. He also reported that his lawyer "only asked [the victim] a few questions" at trial. He maintained that his counsel "should have asked her was there any demand for sex. Was there any communication that he wanted to have sex with you?" The Petitioner testified that he could not recall whether he requested that his attorney ask these questions of the victim. However, despite his insistence that his lawyer erred by failing to question the victim regarding consent, the Petitioner also testified at the post-conviction hearing that he "took -5-

[the victim] in the house against her will." He stated, "I didn't want her to leave me. I remember that." The Petitioner testified that he met with his attorney "five, six, seven times," both while he was in custody and out on bond. He complained that his lawyer never conveyed to him any plea offers from the State. He testified, "[My attorney] asked the prosecutor at the day of trial, as we . . . was [sic] walking in toward the courtroom . . . what is your offer. And [the prosecutor] looked at him and said, there ain't one." However, the Petitioner also admitted, "I pretty much didn't want to plead guilty" and stated that soon after his arraignment, he told his attorney to set his case for trial. With regard to the complaint in his post-conviction petition concerning his attorney's failure to inquire about the Petitioner's knowledge of the victim's sexual behavior prior to the crime, the Petitioner testified that he did not know the victim before the crime, had never engaged in sexual relations with her, and did not know anyone who had engaged in sexual relations with her in the past. He stated, "[T]hat's why I didn't bring that issue up . . . here." Concerning the complaint in his postconviction petition that his attorney failed to allow him to present all relevant issues when he testified in his own defense, the Petitioner admitted that his attorney did not prevent him from testifying about any issues while he was on the stand. The Petitioner's attorney responded to the Petitioner's allegations at the post-conviction hearing. Counsel testified that he had been an attorney since 1974 and estimated that he had tried at least one hundred cases over the span of his career. He stated that he was in private practice and also worked part-time as a Public Defender. Counsel reported that he was appointed to the Petitioner's case in his capacity as a Public Defender. Counsel recalled that he had trouble maintaining contact with the Petitioner prior to trial. He testified that after the Petitioner was released on bond, there were long periods of time when he did not hear from the Petitioner. Counsel stated that he sent two letters to the Petitioner in which he informed the Petitioner of his impending trial date. In the first letter, counsel wrote: "It appears that you made bond on March the 7th, 1997, but since I haven't heard from you I can only assume you've employed private counsel and no longer need the service of the Public Defender's Office." In the second letter, counsel wrote: "If you plan on being represented by the Public Defender's Office you need to call me immediately." Counsel testified, "[J]udging from those letters and the best of [my] recollection, I had very little contact with [the Petitioner] during" the late spring and summer prior to the Petitioner's trial. He also stated that the Petitioner told him "at some point in time that he was going to try to hire private counsel." Counsel testified that he did not represent the Petitioner in General Sessions Court, but he reported that he received a copy of notes taken by the attorney who represented the Petitioner at his preliminary hearing. Counsel also did not recall receiving a letter from the Petitioner in which the Petitioner requested that counsel obtain a copy of the preliminary hearing transcript, and he could not recall whether he ever obtained a copy of the preliminary hearing transcript or listened to an audio tape of the hearing. Although he could not recall whether the Petitioner requested that he -6-

obtain a copy of the preliminary hearing transcript, counsel stated, "[there's] no reason why I wouldn't have [gotten a copy of the transcript] if . . . it was available." Nevertheless, counsel reported that he impeached the victim at trial using her testimony from the preliminary hearing. He stated that he had no "independent recollection" of doing so, but reported that the impeaching questions he asked were reflected in the trial record. He further testified that in February 1997, prior to the Petitioner's first trial date, he gave the Petitioner copies of all discovery documents that he had in his possession. With regard to the Petitioner's allegations concerning the nurse that examined the victim following the incident, counsel testified that he was familiar with Margaret Aiken. He stated that she was a nurse from the Memphis Sexual Assault Resource Center and had been qualified as an expert in court many times. He acknowledged that Aiken had a Ph.D. in the area of health administration. Counsel stated that he did not object to Aiken's qualifications because he did not know of a reason to do so. He also testified that he did not recall the Petitioner asking him to object to Aiken's qualifications. Counsel testified that he did not remember discussing the issue of trauma with the Petitioner prior to trial. He recalled, however, that the defense which he and the Petitioner decided to pursue at trial was that the sexual encounter between the victim and the Petitioner was consensual. He stated, "[T]he best of my recollection [is] that the victim had several opportunities to leave or escape or whatever you want to call it and she didn't." Counsel testified that he did not seek out an expert in the area of "trauma" because he "didn't think one was necessary." Counsel stated that he did not represent the Petitioner on appeal. On cross-examination, counsel testified that he never spoke to the victim prior to trial, and he was not sure whether anyone from the Public Defender's Office spoke to her before trial. However, he reported that he asked an investigator to determine whether the victim had a criminal record, and the investigator found no criminal record of any type. Counsel also reported that he viewed photographs of the crime scene. Counsel testified that, to the best of his recollection, he did not interview Margaret Aiken prior to trial. He further testified that he never discussed with the Petitioner hiring a medical expert for the defense. In addition, counsel testified that he reviewed a copy of the victim's rape crisis report prior to trial. Counsel was asked about the Petitioner's statement that was introduced into evidence at trial. Counsel testified that he could not recall if he considered having the statement suppressed prior to trial and that he did not recall the Petitioner ever asking him to file a motion to suppress the statement. He also stated, "I don't recall that we ever had a suppression hearing."

II. ANALYSIS

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The Petitioner now contends that he is entitled to post-conviction relief because he received ineffective assistance of counsel at trial. In order to obtain post-conviction relief, a petitioner must show that his or her conviction or sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.

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