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finding that counsel's failure to provide evidence of the victim's alternate source of sexual knowledge did not rise to the level of ineffective assistance of counsel because the defense strategy was not abandoned arbitrarily but in response to rulings from the trial court
Summary of this case from Cartwright v. StateOpinion
No. E2008-01278-CCA-R3-PC.
Assigned on Brief March 25, 2009.
Filed November 6, 2009.
Appeal from the Criminal Court for Knox County; No. 46373; Kenneth F. Irvine, Jr., Judge.
Judgment of the Criminal Court Affirmed.
Brandt Davis, Knoxville, Tennessee, for the appellant, Charles Ritter.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jeff Blevins, Assistant District Attorney General, for the appellee, State of Tennessee.
Joseph M. Tipton, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
OPINION
The Petitioner, Charles Ritter, appeals the denial of post-conviction relief in the Criminal Court for Knox County from his convictions for aggravated rape and aggravated sexual battery, for which he received concurrent sentences of forty years and twenty years. On appeal, the Petitioner contends that the trial court erred in finding that he did not receive the ineffective assistance of counsel based on (1) the Petitioner's conflicts with trial counsel or trial counsel's failure to consult with the Petitioner, and (2) trial counsel's ineffective investigation, preparation, and conducting the trial of the case. We affirm the judgment of the trial court.
I. BACKGROUND We take the following facts from this court's 1990 opinion affirming the Petitioner's convictions.
[The Petitioner] is the stepfather of the victim in this case. The [S]tate's proof established that over a period of about three years, he repeatedly sexually assaulted the victim in a variety of ways. He told her that if she told anyone what was happening, he would divorce her mother and be sent to jail. At trial, [the Petitioner] claimed that none of the incidents the victim described had ever happened, and he suggested that the victim's knowledge of sexual acts arose from sexual abuse at the hands of her cousin several years earlier. The victim's mother testified for the defense, saying that over a period of two years, the victim was alone with the [Petitioner] only once, despite the fact that the victim and the [Petitioner] continuously lived in the same household together.
State v. Charles Ritter (Ritter I), No. 1279, Knox County, slip op. at 1 (Tenn. Crim. App. Feb 16, 1990), perm. to app. denied (Tenn. May 14, 1990). At trial, the Petitioner sought to offer the testimony of Charles Tolliver, a cousin of the victim, who would have testified that he also had sexually abused the victim on multiple occasions. Id. at 4. The trial court excluded Mr. Tolliver's testimony because he had made a prior statement to the Department of Children's Services (DCS) that the sexual contact involved a single incident. Id. The jury convicted the Petitioner of aggravated rape and aggravated sexual battery.Id.
The Petitioner filed a petition for post-conviction relief in 1992 and an amended petition in 2003. See State v. Charles Ritter (Ritter II), No. E2003-03016-CCA-R3-PC, Knox County, slip op. at 2 (Tenn. Crim. App. Oct. 14, 2004). The Petitioner alleged, among other things, prosecutorial misconduct and ineffective assistance of counsel. The Petitioner changed attorneys three times between the filing of the original and amended petitions for post-conviction relief. Id. The State moved to dismiss in November 2003, alleging that the Petitioner had reset the matter sixty-seven times and that his delays constituted bad faith and an abuse of the post-conviction process. Id. The trial court granted the motion and dismissed the Petitioner's petition with prejudice on November 20, 2003, without making oral or written findings of fact or conclusions of law to explain its decision. Id. This court held that it was error for the post-conviction court to dismiss the petition without an evidentiary hearing and without making findings of fact or conclusions of law and remanded the case for an evidentiary hearing to determine whether there was a legitimate cause for the dismissal. Id. at 3. On remand, the trial court found insufficient evidence existed to dismiss the petition for failure to prosecute the case and conducted a hearing on the merits.
At the evidentiary hearing, the Petitioner testified that he met with trial counsel three or four times before trial and that his wife sometimes attended. He said that he had no problems with trial counsel before or during trial and that "there was no personal conflict with [trial counsel.]" He said that he did not believe an investigator had been appointed to assist with his case nor did he recall ever meeting with one. He said that he informed trial counsel of a witness who made the original allegations about the Petitioner but had later recanted. The State objected because the Petitioner had made no claim concerning this witness in his post-conviction petition for relief. The trial court sustained the objection.
The Petitioner testified that trial counsel had reviewed a videotape with him. He said the videotape showed a DCS interview with the victim in which the victim could not recall events and the DCS interviewer led the victim in her statements. The Petitioner could not recall that any DCS videotapes of the victim were used at trial. The Petitioner agreed that he felt that the videotape would have helped his defense if it had been shown to the jury.
The Petitioner testified that a plea offer had been made to him and that trial counsel had discussed it with him. He said that he turned down the plea offer. He said that he could not recall whether trial counsel had discussed discovery or anything that the State had disclosed. He said that juror number five stated that she was a close personal friend and former colleague of a State's witness. He said he believed the juror was employed by the Department of Human Services. He said he asked trial counsel to excuse the juror "right then and there." He said that during a recess he and trial counsel went outside and argued about whether to excuse the juror. He said that juror number five was not excused.
The Petitioner testified that he could not remember if trial counsel asked the child witness any questions relating to her competency to testify. He said he did not know if there was anything wrong with how counsel investigated his case, other than the videotape's not being introduced. He said counsel should have objected to the introduction into evidence of notes used to refresh the recollection of a witness, but he could not recall whether he and counsel discussed the matter. He said he believed that the witness's notes should not have been allowed into evidence. He said he recalled testifying at the trial that his sexual relationship with his wife was not normal after the allegations of abuse had been made. He agreed that a rebuttal witness testified that he had no sex life with his wife. He said he talked to counsel about his reasons for the lack of sexual relations in his marriage. He said he could not recall whether the rebuttal witness was asked about the time frame when she learned that his sex life was not good.
The Petitioner testified that he believed that the State made improper comments during closing argument concerning the victim's alternate source of sexual knowledge and the defense's failure to produce a witness. He said the State's closing argument led the jury to believe that there was no alternate source for the victim's sexual knowledge despite the trial court's ruling that excluded a witness who could have provided this evidence. He said he asked trial counsel to object to the State's closing argument but that trial counsel did not.
On cross-examination, the Petitioner testified that the State improperly alluded in its closing argument to a witness, Charles Tolliver, who was not allowed to testify. He said the State's comments on trial counsel's failure to produce evidence that the victim had suffered a traumatic experience that caused her to accuse her stepfather falsely of sexual abuse were improper. He disagreed that his claim of ineffective assistance of counsel based on trial counsel's failure to object to the State's closing argument was the same as his claim of prosecutorial misconduct. He said he remembered neither that the issue of whether Mr. Tolliver would be allowed to testify had been argued in a jury-out hearing nor that another witness had offered testimony rebutting Mr. Tolliver's testimony. He agreed that the record of the trial was accurate.
The Petitioner testified that he assumed trial counsel had called the Petitioner's wife to testify on his behalf and that she had testified about their sexual relationship. He said he disagreed with the timing of when the sexual relationship was put in issue at trial. He acknowledged that if the record showed that the sexual relationship was put in issue by counsel on his behalf, he could not disagree. He agreed that he could not remember if he and counsel discussed the examining nurse's notes being placed into evidence.
On redirect examination, the Petitioner testified that one claim against trial counsel concerned counsel's failure to object to or to ask questions of a rebuttal witness who testified that the Petitioner and his wife had no sex life. He said that he spoke with counsel about that. He agreed that if counsel had questioned the rebuttal witness, the jury would have known that the lack of sexual activity between the Petitioner and his wife arose after the allegations of sexual abuse. On recross examination, the Petitioner stated that he would not disagree with the record.
Trial counsel testified that the victim was a good, articulate witness who was adept at answering questions. He said he recalled the State's asking the victim questions that showed she could distinguish truth from lies. He acknowledged that it had been easy for the trial judge to determine that the victim was a competent witness.
Counsel testified that he represented the Petitioner approximately one and one-half years before he became a public defender. He agreed that by the time of the Petitioner's trial, he and the assistant district attorney had served as opposing counsel in a half-dozen cases. He said he could not recall the details of what he did to investigate the Petitioner's case. He said he was confident he had filed a discovery motion and received any material that was discoverable. He said he recalled meeting with the Petitioner and the Petitioner's wife. He said he did not interview the victim or make any attempt to interview her. He said he could not remember whether he spoke with other witnesses.
Counsel testified that he thought both the victim's grandparents testified for the State. He said he met with the Petitioner more than once but could not recall an exact number. He said he felt that he and the Petitioner had discussed everything they needed to discuss. He said there was nothing he could think of that he "did not do, other than, perhaps, try to interview the little girl." He said he was familiar with the case of Pennsylvania v. Ritchie, 480 U.S. 39 (U.S. 1987), regarding discovery, but he stated that no issues regarding the victim's confidential DCS file would have required the trial judge to examine the file to determine whether it contained discoverable information. He said he did not object to the nurse's notes being passed to the jury because they stated the victim's hymen was intact. He said there had been testimony about digital penetration of the victim. He said that the nurse was questioned about the improbability of an intact hymen after digital penetration and that the fact was significant enough for the jury to see it written in her notes. He said that the nurse testified about the contents of her notes and that there was no harm to the Petitioner if the notes were passed to the jury.
Counsel said he did not remember testimony concerning the Petitioner's sexual relationship with his wife. He said that he did not remember calling the Petitioner's wife to testify but that he must have if her testimony was in the record. He acknowledged that rebuttal testimony to the Petitioner's wife's testimony would have been proper. He agreed that he had made an offer of proof through Mr. Tolliver's testimony, that the State had called a rebuttal witness, and that the trial judge had ruled Mr. Tolliver's testimony would not be allowed.
On cross-examination, counsel testified he was in private practice in 1989. He guessed that the Administrative Office of the Courts (AOC) was controlling appointed cases, funding, and payment at that time. He said he could not remember if the AOC was appointing or funding investigators then. He said he did not employ an investigator in this case. He said that having an investigator would have been nice, but he was not sure what else a private investigator could have done. He said he interviewed the Petitioner, the Petitioner's wife, and Mr. Tolliver, whom he had hoped to use as a rebuttal witness. He said that he talked to DCS personnel before the trial but that they did not share their notes. He said he was not aware of anything in the DCS records that would have helped the Petitioner's case. He said he was fairly certain he did not interview the nurse. He said he and the Petitioner got along "fine" before and during trial. He said he did not dispute the Petitioner's testimony, but he did not remember viewing videotapes. He said the difficult part of the case was that there was no satisfactory defense theory. He said that Mr. Tolliver would have been a key piece of the Petitioner's defense. He said he and the Petitioner anticipated that the victim would testify that she had no sexual contact with anyone other than the Petitioner. He said Mr. Tolliver was prepared to testify that during the same time period as the alleged offenses against the victim, he had sexually molested the victim in the same manner. He acknowledged that he and the State had argued extensively whether Mr. Tolliver would be allowed to testify. Counsel said he thought the trial judge ruled incorrectly when he excluded Mr. Tolliver's testimony. He agreed that the exclusion of Mr. Tolliver's testimony hampered the Petitioner's defense. He said he did not think it would have done any good to ask for a continuance when the trial judge ruled that Mr. Tolliver's testimony was not admissible. He said he did not believe that he considered asking for a continuance.
Counsel admitted that he probably should have talked to the district attorney about interviewing the victim but did not. He agreed that a plea offer of twenty-five years for a lesser offense had been made and that he had advised the Petitioner that it would be in the Petitioner's best interest to take it. He said he did not feel the defense had a compelling explanation for why the victim would allege sexual assault. He said he discussed the penalties if the Petitioner were convicted. He said that he had the Petitioner sign a document acknowledging the offer, that it had been explained by trial counsel, and that the Petitioner had chosen not to accept it. He said he thought he had been given every piece of discovery to which he was entitled.
Counsel testified that he did not remember the Petitioner giving him names of other defense witnesses or asking him to interview them. He said he did not have any memory of Jamie Ramsey or his name being mentioned. When asked whether he cross-examined the Petitioner's mother-in-law about when she learned about the problems in the Petitioner's sex life, he stated, "I'm sure you have the transcript, so I presume I didn't ask her any questions. And if, in fact, I let that go by without any questions, that was probably in error." He said that it was his practice to consult clients about jurors and that if the Petitioner said they discussed juror number five, it was consistent with his usual practice. He said he did not recall such a conversation. He said that if the Petitioner had been forceful about a particular juror, he probably would have excused that juror. He acknowledged that he could have used a peremptory challenge to excuse juror number five. He remembered that a rebuttal witness testified that a complaint had been made to DCS about Mr. Tolliver and the victim and that Mr. Tolliver had denied any contact at that time. He said Mr. Tolliver's testimony and the rebuttal witness's testimony had been given in a jury-out offer of proof. He said he could not remember anything objectionable in the State's closing argument because he could not remember what he or opposing counsel said during those arguments.
At the close of the evidentiary hearing, the trial court found there was no prosecutorial misconduct, no ineffective assistance of counsel, and no due process violation, and it denied the Petitioner post-conviction relief.
II. ANALYSIS
On appeal, the Petitioner contends that the post-conviction court erred when it found that he had not shown the ineffective assistance of counsel. He argues that the convictions in his case were void or voidable based on a violation of his civil rights (1) due to pervasive and divisive conflicts with trial counsel or based on trial counsel's failure to consult with him on issues and defenses, and (2) based on the ineffective assistance of counsel in the investigation, preparation, and trial of his case. The State contends that the post-conviction court properly dismissed the Petitioner's petition for post-conviction relief because the Petitioner failed to show he received ineffective assistance of counsel.
The Post-Conviction Procedure Act in effect at the time the Petitioner filed his petition for post-conviction relief required the Petitioner to prove his grounds for relief by a preponderance of the evidence. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997) (citing Cooper v. State, 847 S.W.2d 521, 527 (Tenn. Crim. App. 1992)); see T.C.A. § 40-30-105 (1990 Supp. 1992) repealed by Tenn. Pub. Acts 1995, ch. 207, § 1, May 10, 1995. Post-conviction relief may be given only if a conviction or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-105 (1990 Supp. 1992). On appeal, we are bound by the post-conviction court's findings of fact unless we conclude that the evidence in the record preponderates against those findings. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). However, we accord the post-conviction court's conclusions of law no presumption of correctness, and we conduct a de novo review of the post-conviction court's application of law to its factual findings of ineffective assistance of counsel. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the Petitioner to show (1) that counsel's performance was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A showing that counsel's performance fell below a reasonable standard is insufficient. The Petitioner also must show that but for the substandard performance, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A petitioner will only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the Strickland test.Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show that counsel's representation fell below an objective standard of reasonableness or "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. The prejudice prong requires a petitioner to demonstrate that "there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability means a "probability sufficient to undermine confidence in the outcome." Id.
In Baxter v. Rose, our supreme court decided that attorneys should be held to the general standard of whether the services rendered were "within the range of competence demanded of attorneys in criminal cases." 523 S.W.2d 930, 936 (Tenn. 1975). Further, the supreme court stated that the range of competence was to be measured by the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973).Id. at 936. Also, in reviewing counsel's conduct, a "fair assessment of attorney performance 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 counsel's perspective at the time."Strickland, 466 U.S. at 689; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of ineffective assistance. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they are informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201;Hellard, 629 S.W.2d at 9.
A.
The Petitioner contends that trial counsel's performance fell below the range of reasonable competence because there were pervasive and divisive conflicts with trial counsel or because trial counsel failed to consult with the Petitioner on issues and defenses. However, the Petitioner states in his brief and testified that he met with trial counsel three or four times before trial. At the evidentiary hearing, the Petitioner testified that he had no conflicts with counsel before or during trial. Counsel testified that he explained the State's plea offer to the Petitioner and that the Petitioner signed an acknowledgment of the plea offer before the Petitioner rejected it.
The Petitioner testified that he requested that trial counsel dismiss a juror who was a close friend of a State witness and an employee of the Department of Children's Services but that counsel refused. The Petitioner testified that he and counsel argued about it during a recess. The original trial transcript reflects that a recess was taken after four other jurors were excused. However, nothing else in that transcript supports his assertions. The trial court found that it could not render a decision on whether the failure to excuse a juror was ineffective assistance of counsel because there was no proof of how a different juror would have impacted the outcome of the Petitioner's trial. The Petitioner has failed to show how counsel's failure to dismiss juror number five falls below the range of competence demanded of attorneys in criminal cases. Nor has the Petitioner shown that but for the failure to dismiss the juror the outcome of his trial would have been different. Moreover, the Petitioner's claim is inaccurate. The record reflects that juror number five knew a State's witness casually because their children attended the same school and that the juror's daughter worked part-time for Child and Family Services at a group home.
The Petitioner testified that he asked trial counsel to object to comments in the State's closing argument that counsel had failed to prove what he had promised in his opening statement. We note that the opening statements are absent from the record. During closing argument, the prosecutor stated,
I made a note to myself, because [trial counsel] made a big deal — I remember this — in opening statement. His words . . . I can't write fast enough to write it all down, but we're going to show you that the reason this little girl is lying about this whole business is because she experienced a very traumatic experience early on in her life, and makes her into a — I don't know that — the only thing I can think of is experience some kind of really significant traumatic, terrible experience early in her life, and that's why she's lying about this. And I waited throughout the trial, because I figured, well, maybe the stepfather is going to tell us about this terrible, traumatic experience this child suffered that makes her into a chronic liar. But, no. And then I figured, well, maybe the mother is going to tell us about this terrible, traumatic experience that this child suffered that makes her into a chronic liar. No.
The only traumatic experience that this child has had that I have heard about throughout this whole trial is what [the Petitioner] did to her, how he traumatized her.
In the next section, we address whether trial counsel's failure to present evidence promised during opening statement constituted the ineffective assistance of counsel. Here, we limit our analysis to the issue of the Petitioner's alleged conflict with counsel concerning counsel's failure to object to the State's closing argument. The Tennessee Supreme Court has recognized that "argument of counsel is a valuable privilege that should not be unduly restricted." Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Attorneys have great leeway in arguing before a jury, and the trial court's broad discretion in controlling their arguments will be reversed only upon an abuse of discretion. Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be "temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent to the issues being tried." Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). We discern no improper closing argument in the record. The State was entitled to comment on the defense's failure to produce evidence that had been promised during the opening statement. The record supports the trial court's determination that counsel's failure to object to the State's comments during closing argument did not constitute the ineffective assistance of counsel. The record does not reveal any conflict between the Petitioner and trial counsel on this point, other than the Petitioner's testimony at the evidentiary hearing. Further, the Petitioner has failed to show how trial counsel's failure to object, whether or not the Petitioner asked him to do so, fell below the standard of competence demanded of attorneys in criminal cases or how this affected the outcome of his trial.
B.
The Petitioner also claims that he received the ineffective assistance of counsel in the investigation, preparation, and trial of the case. The trial court found that trial counsel investigated the Petitioner's case properly. It said that it could not find how counsel's performance fell below the standard expected of counsel and that there was nothing counsel should have done that he did not do. The court found that counsel had no basis to request the victim's confidential DCS file and that counsel's failure to request it was neither deficient performance nor did it prejudice the Petitioner. The record supports the trial court's determinations. Under Pennsylvania v. Ritchie, a DCS file may be submitted to a trial court for in camera review, and if a defendant is aware of specific information in the file, he may request it from the court and argue its materiality. 480 U.S. 39, 60 (1987). Counsel met with DCS personnel and discussed the case, although he did not request their notes. A DCS caseworker testified at trial. The Petitioner has failed to show that there was any exculpatory material in the DCS file, that counsel's failure to obtain the file fell below the expected standard, or that failure to obtain the file prejudiced his case.
The trial court found that trial counsel's failure to object to the State's leading of a young witness or to the trial judge's determination that the child witness was competent to testify did not constitute the ineffective assistance of counsel. Our rules of evidence presume all persons, including children, are competent to testify, and they permit leading questions of a child witness on direct examination where necessary to develop testimony. Tenn. R. Evid. 601, Advisory Comm'n Cmts, 611(c) (2009); see Swafford v. State, 529 S.W.2d 748, 749 (Tenn. Crim. App. 1975). The court also found that counsel's failure to object to proper rebuttal proof was not the ineffective assistance of counsel. The court rejected the Petitioner's complaint that counsel did not question the rebuttal witness as beyond the scope of the petition. The record reflects the Petitioner raised the issue of his sexual relationship with his wife, and it was not improper for the State to offer evidence to rebut this testimony. The evidence in the record does not preponderate against the court's findings. The Petitioner has failed to show that counsel's failure to object to leading, witness competency, or rebuttal proof were deficient or that he was prejudiced by any deficiency.
The trial court accredited trial counsel's testimony that the examining nurse testified completely as to her notes and that there was no harm in giving them to the jury. The court found that counsel's decision was a tactical one because the notes contained evidence helpful to the defense. The evidence in the record does not preponderate against these findings. The Petitioner has failed to show that counsel's performance was deficient and that he was prejudiced by counsel's allowing the nurse's notes to be passed to the jury.
The trial court accredited the Petitioner's testimony that the videotapes showed the child victim being led through an interview and that she was not able to remember certain things about her sexual assault. However, the court said that counsel had sufficient reason for not introducing the videotape because it would have been damaging to the Petitioner's case for the jury to hear the child talk about her abuse, even if she were being led through the interview. The court found that it was not ineffective assistance of counsel to fail to introduce the videotape and that "[i]t might be ineffective assistance to actually put it in." The record supports the court's determinations. The Petitioner has failed to show that counsel's performance fell below the expected standard of conduct and that he was prejudiced such that the outcome of his trial would have been different.
The trial court found that trial counsel was not ineffective for failing to introduce proof concerning the victim's alternate source of sexual knowledge. The court found that counsel did everything he could to have the evidence admitted but that he was unsuccessful. This court has held that in certain circumstances the failure to present evidence promised during the opening statement constituted ineffective assistance of counsel. State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn. Crim. App. 1991). "`The trial attorney should only inform the jury of the evidence that he is sure he can prove. . . . His failure to keep [a] promise [to the jury] impairs his personal credibility.'"Id. at 225 (quoting McCloskey, Criminal Law Desk Book, § 1506(3)(O) (Matthew Bender, 1990)). Our supreme court noted that in Zimmerman, it was counsel's sudden, unwarranted change in trial strategy that resulted in the deficient performance.King v. State, 989 S.W.2d 319, 332 (Tenn. 1999) (citingZimmerman, 823 S.W.2d at 224, 226). However, the supreme court held that a change in defense strategy did not rise to the level of the ineffective assistance of counsel when it occurred in response to surprise testimony or other change in the proceedings. See id. at 332. The record does not contain counsel's opening statement, but it does reflect that during a motion in limine, counsel urged the court to allow Mr. Tolliver to testify. The court excluded Mr. Tolliver's testimony but permitted counsel to ask the victim, in the jury's presence, whether Mr. Tolliver had performed any sexual acts with her. The victim testified in the negative, and counsel then made a jury-out offer of proof. Counsel's defense strategy was to attack the victim's credibility and to show that the victim could have obtained her sexual knowledge from the abuse by Mr. Tolliver and not the Petitioner. Counsel did not arbitrarily abandon his defense strategy. See id. Counsel's failure to produce evidence of the victim's traumatic experience after promising it in his opening statement may have impaired his credibility. We do not believe that under the circumstances of this case, counsel's failure to provide evidence of the victim's alternate source of sexual knowledge rose to the level of ineffective assistance of counsel.
III. CONCLUSION
The record supports the trial court's determinations that the Petitioner was not denied the effective assistance of counsel. The trial court ruled on each of the Petitioner's claims in the original and amended petitions and made written findings of fact and conclusions of law. The Petitioner has failed to show that trial counsel's performance was deficient or the Petitioner was prejudiced. We hold that the trial court did not err in denying the Petitioner relief. Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.