Joshua Paul Lewis v. State of Tennessee ( 2017 )


Menu:
  •                                                                                           10/23/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs September 20, 2017
    JOSHUA PAUL LEWIS v. STATE OF TENNESSEE
    Direct Appeal from the Criminal Court for Cumberland County
    No. 10-0008       David A. Patterson, Judge
    No. E2016-01993-CCA-R3-PC
    A Cumberland County jury convicted the Petitioner, Joshua Paul Lewis, of two counts of
    rape of a child and one count of attempted rape of a child, and the trial court sentenced
    him to serve an effective sentence of twenty-five years. This court affirmed the
    Petitioner’s convictions and sentence. State v. Joshua Paul Lewis, No. E2014-00918-
    CCA-R3-CD, 
    2015 WL 795856
     (Tenn. Crim. App., at Knoxville, Feb. 25, 2015), no
    Tenn. R. App. P. 11 filed. The Petitioner subsequently filed a petition for post-conviction
    relief, alleging that he received the ineffective assistance of counsel. The post-conviction
    court held a hearing on the petition and denied relief. We affirm the post-conviction
    court’s judgment.
    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 NORMA MCGEE
    OGLE and TIMOTHY L. EASTER, JJ., joined.
    Jonathan R. Hamby, Crossville, Tennessee, for the appellant, Joshua Paul Lewis.
    Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
    Bryant C. Dunaway, District Attorney General; and Amanda M. Worley, Assistant
    District Attorney General, for the appellee, State of Tennessee.
    OPINION
    I. Facts and Procedural History
    A. Trial
    This case arises from the Petitioner’s multiple rapes of the victim, a nine-year-old
    boy, who was the child of the Petitioner’s friend. For these offenses, a Cumberland
    County grand jury indicted the Petitioner for two counts of rape of a child and one count
    of attempted rape of a child. When the Petitioner appealed his convictions and sentence,
    this court recited the following facts presented at the pretrial hearing and at trial:
    Investigator Jeff Slayton with the Cumberland County Sheriff’s
    Department testified that he was one of the officers who interviewed the
    [Petitioner] on December 9, 2009. He identified an “Admonition and
    Waiver and Waiver of Rights” document bearing the same date and signed
    by the [Petitioner]. The document also indicates a time of 9:07 p.m. This
    document was subsequently admitted into evidence.
    Investigator Slayton stated that, earlier that day, he had been in a
    “lengthy . . . vehicle pursuit” of the [Petitioner]. During the [Petitioner]’s
    apprehension, he was pepper-sprayed at some time late in the afternoon, but
    before 6:00 p.m. Investigator Slayton stated that he had been pepper-
    sprayed as part of his training and that the effects last from thirty to forty-
    five minutes.
    Investigator Slayton interviewed the [Petitioner] together with
    Investigator Chad Norris. A “DCS” agent, whose name he could not
    remember, was also present. The interview took place in the training room
    of the justice center. The [Petitioner] was in custody at the time.
    Investigator Slayton read the Admonition and Waiver to the
    [Petitioner], and the [Petitioner] then read the Waiver of Rights out loud.
    According to Investigator Slayton, the [Petitioner] had no trouble reading
    the document. The [Petitioner] did not complain about being unable to read
    because of the pepper-spray. After the [Petitioner] had read the Waiver of
    Rights out loud, he signed it. Investigators Slayton and Norris both
    witnessed the [Petitioner]’s signature.
    Investigator Slayton proceeded to question the [Petitioner] about the
    pursuit. He also questioned him about the instant allegations, of which
    Investigator Slayton had just learned. At no time did he promise the
    [Petitioner] a lower bond if he confessed to the sex offense charges. After
    Investigator Slayton finished his oral interview of the [Petitioner],
    Investigator Norris reduced the [Petitioner]’s statement to writing.
    On cross-examination, Investigator Slayton maintained that the
    [Petitioner]’s eyes were not “irritated” during the interview and that the
    [Petitioner] had been able to look at and focus on Investigator Slayton. He
    2
    also maintained that the [Petitioner] was “calm” and “understanding” while
    the Admonition and Waiver was read to him. Investigator Slayton
    described this information as the [Petitioner]’s Miranda rights. The
    [Petitioner] did not have on handcuffs, but Investigator Slayton did not
    remember if the [Petitioner] had on leg-shackles. According to Investigator
    Slayton, there was no audio-recording of the interview.
    Investigator Chad Norris with the Cumberland County Sheriff’s
    Department testified that he witnessed the [Petitioner] sign the Waiver of
    Rights. He also stated that he reduced the [Petitioner]’s statement to
    writing. He identified the document and explained his process for creating
    it:
    The way I do my statements is, I will write a portion of
    it, after what they’ve told me what they want to say, I’ll write
    their words and I’ll read back what I’ve wr[itten]; and then
    I’ll continue on with it, write a small—another portion of it,
    read it back, and all the time asking them, “Is this what you
    want me to say? Is this correct?” And I do that throughout the
    whole statement. Then I give them the statement and have
    them read over it.
    Investigator Norris confirmed that he followed this process with the
    [Petitioner]’s written statement. He then read the statement into the record:
    I had several sexual contacts with [the victim] after he
    came on to me. I touched his penis several times, I’m not
    sure exactly how many times. He played with my penis
    several times as well. I never came/ejaculated while he
    played with my penis. When it first started we were both into
    it, but in the later part of the relationship [the victim] was
    more into it than me. I gave him a blow job more than one
    time, but I’m not sure exactly how many times. Most of the
    sexual acts occurred at Valerie D[]s’ house on Old Highway
    70. On one occasion while at the cemetery on POW Camp
    Rd not too far from Valerie’s house [the victim] wanted to
    have sex in Valerie’s van. He got in the back seat and took
    his pants off. He had his legs raised up and I had my pants
    unzipped with my penis out. I had a condom on and was
    about to put my penis in his butt, but decided [to] stop before
    we had intercourse. At a house on Old Mail Road where I
    3
    was doing work me and [the victim] laid on top of each other,
    but nothing happened there. I wish these things hadn’t
    happened and I would take them back if I could.
    Investigator Norris testified that the [Petitioner] signed this written
    statement at 10:45 p.m. He also testified that he did not promise the
    [Petitioner] a lower bond if he confessed to these crimes.
    On cross-examination, Investigator Norris stated that it was “typical”
    for him to write a suspect’s statement. Investigator Norris also affirmed
    that the [Petitioner] had been taken into custody on unrelated charges. He
    stated that he had previously interviewed the [Petitioner] on the instant
    charges on August 11, 2009, in the [Petitioner]’s driveway. He did not
    obtain a statement from the [Petitioner] on that day.
    The [Petitioner] testified at the suppression hearing that he had run
    from the police on December 9, 2009, because he had been told they were
    going to beat him up. He also stated that he “remember[ed] getting beat up
    by most of the sheriff’s department and maced a couple of times.” His eyes
    were burning, and he tried to rinse them with water, but “that made it a
    hundred times worse.” He did not remember at what time he was sprayed
    because he “was on Xanax,” but he stated that it was “dark out.” He
    described the sensation of being sprayed as “someone was jabbing a knife
    in [his] eye.”
    When asked about the interview, the [Petitioner] stated that all he
    could remember talking about was “running from the cops.” He did not
    remember Investigator Norris presenting him with the written statement.
    He acknowledged having signed some “papers” but stated that he was not
    sure what they were and that he did not read them. He testified that the
    officers told him “that if [he] signed the paper that they would make sure
    [he] got the lowest bond possible to get out.” He stated that he had not
    been capable of reading during the interview because his eyes were still
    burning. He also stated that he did not remember his Miranda rights being
    read to him.
    On cross-examination, the [Petitioner] stated that he was twenty-
    eight years old and could read and write. When shown his statement, he
    acknowledged that the signature “look[ed] pretty close to” his own. He
    also averred that he had bad eyesight, including “astigmatisms.”
    4
    The defense argued that the [Petitioner]’s statement was not
    voluntary. The trial court disagreed, ruling from the bench that “the proof
    is overwhelming in favor of [it] being a voluntary statement.” Accordingly,
    the trial court denied the [Petitioner]’s motion to suppress. At the
    subsequent jury trial, held in March 2011, the following proof was adduced.
    Valerie D., the victim’s mother, testified that she had three children:
    an elder son, who was twelve years old at the time of trial; the victim, ten
    years old at the time of trial; and a daughter, seven years old at the time of
    trial. In 2009, she and the children lived in Cumberland County on Old
    Highway 70. She was using methamphetamine at the time, but she had
    been “clean” for a year and a half preceding the trial.
    The victim’s mother identified the [Petitioner] and explained that she
    had met him in 2003 through Athena Donaldson, a mutual friend. She
    described the [Petitioner] as having been “very good with children.” Her
    sons were “very young at the time,” and the [Petitioner] “was very polite,
    very nice around them, and he would like to take them places.” She and the
    [Petitioner] both moved away, however, and she did not see him again until
    2009, when he began staying with Donaldson.
    After the [Petitioner] learned of the victim’s mother’s whereabouts
    in 2009, he began visiting her again. She described him as her friend at the
    time and a friend of the children. She testified that she trusted him, adding,
    He was really good with kids, and I trusted him
    enough to send them away with him, because he had his own
    business, and he mowed lawns, and I thought it would . . . be
    a good thing for the boys to get out of the situation at home
    and go have like a little part-time job, something they could . .
    . grow on, and have a little bit of money, and, you know,
    learn the value of a dollar. And so they would go with [the
    [Petitioner] to go and mow lawns and other things.
    The victim had turned nine years old in April of that year. The
    victim’s mother testified that her two sons were with the [Petitioner] most
    of the summer of 2009. However, toward the latter part of the summer, the
    [Petitioner] began spending more time with the victim, leaving the elder
    son behind.
    The victim’s mother became concerned about the discrepancy in the
    5
    time the [Petitioner] was spending with her sons. She took the victim to a
    park on a day near the end of July to speak with him privately. Based on
    this conversation, during which the victim was “[s]cared” and “crying,” she
    became very concerned. They went to the police station the next day.
    After this conversation, she decided not to allow the victim to be around the
    [Petitioner].
    On cross-examination, the victim’s mother acknowledged that she
    and the [Petitioner] used methamphetamine together while the children
    were asleep. She stated that the [Petitioner] took the victim without his
    brother “several times” during the summer of 2009. She denied having
    ever witnessed the [Petitioner] touch the victim inappropriately.
    Investigator Slayton testified at trial that he interviewed the
    [Petitioner] on December 9, 2009. Investigator Chad Norris was also
    present. Investigator Slayton identified the [Petitioner]’s written waiver of
    his rights and his written statement, and both were introduced into evidence
    without objection. He stated that, prior to the [Petitioner]’s signing the
    waiver, he read the [Petitioner] his Miranda rights. He even had the
    [Petitioner] read out loud the waiver of those rights. He witnessed the
    [Petitioner] then sign the Waiver of Rights. The [Petitioner] then agreed to
    speak with Investigator Slayton.
    Investigator Slayton testified that he then interviewed the
    [Petitioner] about the instant charges. After the verbal interview, a written
    statement was prepared, which the [Petitioner] then adopted and signed.
    Investigator Slayton read the written statement set forth above to the jury.
    Investigator Slayton testified that, at the time he gave his statement, the
    [Petitioner] “was very coherent and very understanding of everything that
    was going on in the room at that time.” According to Investigator Slayton,
    the [Petitioner] “began to tear up” during his statement and “seemed very
    remorseful for what he was telling [him] had happened.”
    On cross-examination, Investigator Slayton acknowledged that the
    interview lasted an hour and forty-five minutes and began shortly after nine
    o’clock in the evening. He denied having pressured the [Petitioner] “in any
    way.” He also stated that there was no audio or video recording of the
    interview. He acknowledged that the written statement was in Investigator
    Norris’s handwriting.
    The victim testified that he was currently ten years old. During the
    6
    summer of 2009, when he was nine years old, he lived in a house on Old
    Highway 70 in Cumberland County with his mother and siblings. The
    [Petitioner], whom the victim identified in court, came by and visited, and
    he spent some time alone with the [Petitioner] that summer.
    The victim testified that, during the summer, he went with the
    [Petitioner] to the state park in Crossville in the [Petitioner]’s car, a Firebird
    or a Thunderbird. The victim played at the park for a while and then went
    to use the bathroom. The [Petitioner] followed him into the restroom.
    There was no one else present. The victim went into a stall, and the
    [Petitioner] went into the stall with him. The victim found this “very odd”
    and, consequently, was “scared.” The victim stated that the [Petitioner] put
    the victim’s penis in his mouth.
    The victim next identified a photograph of a couch in the victim’s
    house. On a day during the summer of 2009, he was on the couch with the
    [Petitioner]. The victim was wearing pants. The [Petitioner] put the
    victim’s penis in his mouth.
    The victim next identified a photograph of Oaklawn Cemetery that
    the victim stated was in Cumberland County. The cemetery was close to
    the victim’s house. During the summer of 2009, the victim went there with
    the [Petitioner] in the victim’s mother’s van. They drove to a spot where
    the road was not visible and parked. The victim was in the front seat, but
    the [Petitioner] told him to get in the back of the van. The victim did so
    and saw the [Petitioner] put a condom on the [Petitioner]’s penis. The
    [Petitioner] then pulled down the victim’s pants and “tried to stick it up . . .
    [the victim’s] butt.” The victim testified that he was “scared.” The episode
    lasted “a couple of minutes.” The victim did not feel the [Petitioner]’s
    penis inside him, but he stated it was “close.” The [Petitioner] stopped,
    saying he thought he saw a light in a house nearby. They then left the
    cemetery.
    Later, the victim told his brother what had happened. His brother
    told their mother, and the victim then talked to his mother about it at a park.
    They went to the police station, and he “told this lady what happened.” The
    victim testified that the [Petitioner] had told him not to tell anyone or they
    “would crash into a brick wall.” They were in the [Petitioner]’s car when
    the [Petitioner] said this to the victim.
    Investigator Norris testified that he first learned about the allegations
    7
    involving the victim in late July 2009. On that day, the victim’s mother and
    the victim came in and made a report. A Department of Human Services
    worker was assigned and interviewed the victim at the House of Hope.
    Investigator Norris watched this interview on television while it was being
    conducted and recorded. There was also a forensic medical exam
    conducted of the victim, but the results were inconclusive.
    After the victim was interviewed, Investigator Norris began looking
    for the [Petitioner]. They spoke over the phone and scheduled an interview.
    On August 11, 2009, Investigator Norris, accompanied by Investigator John
    Haynes, met the [Petitioner] at the [Petitioner]’s residence. They spoke
    outdoors. The [Petitioner] was advised of his Miranda rights and agreed to
    speak with them. When they informed the [Petitioner] that they were there
    because of the victim, the [Petitioner] “became emotional” and “requested
    to stop talking.” Investigator Norris told the [Petitioner], “[W]e’ll get back
    in touch,” and the two officers left.
    Investigator Norris testified that “two days or so after that,” he
    attempted to contact the [Petitioner] but was unsuccessful. Numerous
    subsequent attempts were also unsuccessful. In December, he learned that
    the [Petitioner] was at the Justice Center. The [Petitioner]’s interview and
    statement ensued. Investigator Norris identified places on the written
    statement that contained corrections requested by the [Petitioner] and
    bearing the [Petitioner]’s initials. Investigator Norris also signed the
    statement as a witness. The statement is dated December 9, 2009, at 10:45
    p.m. Investigator Norris explained that the time indicated the end of the
    interview and statement. Investigator Norris confirmed that he had written
    out the statement. He also opined that the [Petitioner] understood what was
    being recorded in the statement as Investigator Norris was composing it.
    The [Petitioner] did not appear to be under the influence of any drugs or
    narcotics. The [Petitioner] had told him, however, that he had been
    “maced” earlier. Investigator Norris stated that he had been sprayed with
    mace and knew it to be “not pleasant at all.” He added that, “by 30
    minutes, the main effects were gone from it.”
    The [Petitioner] testified at trial that he was currently twenty-nine
    years old. He worked as a landscaper. He had a prior conviction for
    driving on a revoked license. He described his relationship with the victim
    as “trying to be a friend of the family.” He took the victim to mow yards,
    go fishing, play laser tag, and they went to “Chuckles.” At the beginning of
    his friendship with the victim’s mother, when he was living with
    8
    Donaldson, the victim’s mother would bring her children over “and drop
    them off for days at a time.”
    The [Petitioner] acknowledged having signed the statement written
    by Investigator Norris. He testified that he “actually didn’t know what [he]
    was signing, but [he] was told [he’d] be able to bond out and get out of
    there. [He] was under a lot of stress, and [he] had been roughed up and
    maced prior to coming in.” About his initial August conversation with
    Investigators Norris and Hayes, he testified as follows:
    [W]e stood there and talked for quite some bit, and
    they just started getting into saying—talking about personal
    things, about, if I remembered how it was when I was nine
    years old when I woke up on my belly and had a hard-on. It
    was just questions like that, and I was starting to get upset
    about them. I didn’t really feel comfortable with them talking
    to me about stuff like that. And then they brought up [the
    victim], and I told them that I had no knowledge of anything–
    any of the accusations made towards me. I then told them
    that I didn’t want to speak with them anymore, that I’d like to
    get in touch with an attorney. And my niece c[a]me running
    out to me, and that’s when I ended the whole conversation
    and walked away.
    As to the interview at the Justice Center in December, the
    [Petitioner] stated that he had been handcuffed and shackled. He stated
    that, initially, there were three other people in the room, but the female was
    asked to leave after he kept denying the accusations. About midway
    through the interview, Investigator Norris left, and Investigator Slayton
    “got a little bit more fierce.” He stated that he did not remember signing
    the Waiver of Rights document.
    The [Petitioner] denied ever touching the victim inappropriately. He
    disagreed with the assertions in the written statement. He testified that the
    victim “asked [him] one time if he could call [him] dad and stuff, and it
    turned into kind of a father-son relationship after that.”
    On cross-examination, the [Petitioner] stated that, before he was
    “maced” on December 9, 2009, he had been fleeing from the police “in fear
    for [his] life.” He explained that the victim’s mother had told him that
    “something bad was going to happen to [him],” that her ex-boyfriend was
    9
    friends with an officer, and that “he was going to make sure that [the
    [Petitioner] didn’t make it to court.” He stated that Investigators Norris and
    Slayton had lied and that the victim had lied. He averred that he signed the
    written statement because he “wanted a bond, [he] wanted to get out of
    jail.” He testified that the investigators told him, “Once you sign this paper,
    you can go.” He said that he was not fully aware of what was in the written
    statement. He explained that he had a lot of medical problems with his
    eyes, that he had been “maced,” and that he was “on” Xanax and
    methamphetamine at the time.            He did not remember telling the
    investigators that he had not used drugs for three months and that he had
    not been drinking alcohol.
    Lewis, 
    2015 WL 795856
    , at *1-7. The jury convicted the Petitioner on all three counts as
    charged. The trial court subsequently sentenced the Petitioner to twenty-five years on
    each of the two rape of a child convictions and to ten years on the attempted rape of a
    child conviction. The trial court ordered that the sentences run concurrently and be
    served in the Department of Correction. Id. at *8.
    B. Post-Conviction
    The Petitioner filed a petition for post-conviction relief, pro se,complaining that he
    had not received the effective assistance of counsel from his attorney (“Counsel”)
    because Counsel: (1) failed to introduce pertinent evidence at the suppression hearing; (2)
    failed to follow up with a witness; (3) failed to introduce inconsistent witness statements;
    and (4) failed to call a medical expert as a witness. The post-conviction court held a
    hearing on the petition, during which the following evidence was presented: the
    Petitioner testified that Counsel was appointed to his case after his initial attorney retired
    and that he only met with Counsel four or five times before his trial. The Petitioner told
    Counsel about being investigated by the police, giving them a statement, and then
    subsequently being part of a police chase during which he stated that the police
    physically beat him and used mace on him. Counsel told the Petitioner that his version of
    the police behavior would not help his case. The Petitioner told Counsel that, while
    being interrogated by the police, he requested an attorney. He recalled Counsel raising
    that fact at the suppression hearing.
    The Petitioner recalled that he discussed with Counsel a witness to his
    interrogation who could testify to the police’s behavior. The Petitioner testified that
    Counsel failed to try to locate the witness despite the Petitioner giving Counsel the
    witness’s address. The Petitioner also raised with Counsel the fact that the victim’s
    mother’s boyfriend, who was in jail at the time of the events related to the trial, had
    shown the victim and other children in the house his computer that contained sexual
    10
    images. He stated that Counsel had no reaction to this information. The Petitioner
    requested a lie detector test, and Counsel never responded to his request. The Petitioner
    specified that he wanted Counsel to bring up the images on the victim’s mother’s
    boyfriend’s computer to show the victim’s exposure to or knowledge of sexual behaviors.
    Counsel did not mention the computer at trial.
    The Petitioner told Counsel that if Counsel was unable to introduce at trial the
    forensic medical exam and forensic interview, then the Petitioner wanted another
    attorney. Counsel “never did anything with that.” The Petitioner recalled that the
    forensic exam revealed that everything was “normal” with the victim after the alleged
    incidents. The resulting reports from the exam and interviews had discrepancies that the
    Petitioner wanted Counsel to raise, but he did not. The Petitioner asked Counsel to
    contact a witness who had seen the police beating the Petitioner after their pursuit of him,
    but Counsel did not contact her about testifying. The Petitioner asked for an investigator
    to be assigned to his case, which also did not happen, although Counsel said he would
    “look into it.”
    The Petitioner testified that he did not feel prepared to testify at trial and that he
    and Counsel never developed a trial strategy. He stated that Counsel “encouraged” him
    to testify but did not prepare him to do so. The Petitioner recalled several inconsistencies
    in the police officers’ statements that Counsel did not explore at trial. Recalling the
    introduction at trial of his written statement and waiver of rights form, the Petitioner
    recalled that Counsel discussed their existence with him prior to trial but that he never
    knew they would be made “part of” the trial. The Petitioner stated, however, that
    Counsel told him to agree at trial that it was his signature on the documents, despite the
    Petitioner’s assertion that the two signatures did not match.
    When prompted by the post-conviction court, the Petitioner summarized his
    primary claims of ineffective assistance of counsel: Counsel did not have the Petitioner
    take a lie detector test; Counsel did not raise the issue of the victim’s mother’s “prior
    sexual abuse case against her friend[’s] . . . son”; Counsel did not arrange for a follow-up
    interview of the victim; and Counsel did not honor the Petitioner’s request to withdraw
    his representation “if [Counsel] couldn’t work [the Petitioner’s] case with the forensic
    interview . . . and forensic medical exam,” which contained discrepancies. As to the
    Petitioner’s request to get a second evaluation of the victim, Counsel told him that it
    would not help his case and neither would pointing out the discrepancies in the forensic
    exam and interview. When the Petitioner asked him to withdraw, Counsel “got upset”
    and left their meeting. The Petitioner “believe[d]” that he and Counsel had a consultation
    before trial but that it was “very, very brief.”
    The Petitioner testified that Counsel misinformed him of his sentencing exposure
    11
    by giving him a range of years, but he conceded that knowing the exact amount of years
    he could have been sentenced to would not have affected his decision to go to trial.
    Counsel failed to cross-examine the victim about the inconsistencies between his
    statements to investigators and his trial testimony. Counsel explained to the Petitioner
    that the jury would take pity on the victim if Counsel questioned the victim too
    aggressively. During voir dire, Counsel did not question the prospective jurors about
    their opinions or views on children’s testimony and credibility.
    On cross-examination, the Petitioner testified that he also wanted Counsel to raise
    at the suppression hearing that he had requested an attorney during interrogation and was
    denied one during the investigation of his case. The Petitioner agreed, however, that
    Counsel asked him at the suppression hearing if he had any additional information he
    wanted to provide to the trial court. He also agreed that would have been an opportunity
    for him to raise the issue of having been denied representation and beaten by the
    investigating officers. The Petitioner agreed that he was questioned by the trial court
    about his decision whether or not to testify at trial and the advice he had been given by
    Counsel, and he told the trial court that he wanted to testify and was doing so of his own
    free will.
    Investigator Jeff Slayton testified that he worked for the sheriff’s department and
    investigated the Petitioner’s case and testified at his trial. He agreed that a report he
    made about the case and his recollection of his investigation differed and that Counsel
    pointed out a discrepancy between the two at trial.
    Counsel testified about the Petitioner’s claim that he was denied an attorney
    during the investigation of his case, specifically during an interview in December 2009.
    Counsel stated that the Petitioner never raised that as an issue despite being given the
    opportunity to do so at the suppression hearing and at trial. Counsel recalled that, in a
    previous August 2009 interview, the Petitioner requested an attorney. It was during the
    December 2009 interview that the Petitioner gave a statement that was ultimately read
    aloud to the jury at trial. Counsel agreed that he was told by the Petitioner that he was
    beaten and physically abused by the police, but he disputed that the Petitioner told him
    this occurred during the interview. Counsel recalled that the Petitioner told him it
    happened several hours after the interview. As to the Petitioner’s claim that Counsel
    failed to call a witness to the abuse to testify at trial, Counsel said he was not aware that
    the witness had actually seen any physical abuse during the interrogation. Had Counsel
    been aware of these grounds, he “absolutely” would have raised them at the suppression
    hearing.
    Counsel testified that he did not want a video recording of the forensic interview
    introduced as evidence because it was “particularly damning” for the Petitioner. In the
    12
    recording, the victim mentioned twelve different occasions involving sexual contact
    between the victim and the Petitioner, and he also mentioned two other child victims.
    The victim spoke in the interview with particularity about the sexual contact, including
    dates, locations, as well as identifying the Petitioner and what the Petitioner was wearing.
    Counsel said it was a “defense tactic” not to introduce the video and would have hurt the
    Petitioner’s case. As to the Petitioner’s allegation that Counsel failed to call a medical
    expert to testify, Counsel recalled that because the allegation was that the Petitioner had
    performed oral sex on the victim, a medical expert’s testimony would not have helped in
    any way to refute that allegation. He further stated that because there were no allegations
    of penetration with regard to the attempted rape of a child, a forensic medical examiner
    would not have found any evidence of sexual contact. Counsel also recalled that the
    forensic medical examiner had spoken to the victim and would have testified about the
    victim’s statements to her, further damaging the Petitioner’s defense.
    On cross-examination, Counsel stated that a jury-out hearing was held on the issue
    of introducing evidence that the victim’s mother’s boyfriend had a computer in the
    victim’s home that contained pornographic images. The trial court sustained the State’s
    objection to any testimony about the victim’s exposure to pornography. Counsel recalled
    that he called four character witnesses to testify on the Petitioner’s behalf. He did not
    recall the Petitioner requesting a lie detector test, but he would have advised the
    Petitioner that its results would not have been admissible in court.
    Counsel stated that, in his opinion, there was no need for an investigator in this
    case because there was no DNA evidence, no fingerprints, or other witnesses to the
    sexual acts. Counsel felt that he was able to investigate the case on his own by talking to
    witnesses, but there were not many witnesses to interview. As to the Petitioner’s claim
    that Counsel did not confront the victim with the inconsistencies between his prior
    statements and his testimony at trial, Counsel stated that he did not want to open the door
    to prompt the State to introduce the victim’s statements given in the forensic interviews.
    Counsel did not recall the Petitioner requesting an evaluation of the victim’s knowledge
    of sexual behavior. In his experience at the time, there were such experts who could
    evaluate a child’s sexual knowledge based on a forensic interview. Counsel testified that,
    at best, such testimony would be inconclusive.
    Counsel testified that, had the Petitioner asked him to withdraw his representation,
    he would have brought it to the attention of the trial court. Counsel said unequivocally
    that the Petitioner did not ask Counsel to withdraw. Counsel testified that he met the
    Petitioner in jail at least seven times and was present in court with him quite a few times
    before trial.
    Counsel recalled asking Investigator Slayton about the discrepancies in his reports
    13
    but did not emphasize them. Counsel prepared the Petitioner to testify by asking him
    every question he might be asked at trial.
    At the conclusion of the hearing, the post-conviction court denied the petition,
    stating the following:
    The [P]etitioner lies under oath. He tells the court that. And so the
    [P]etitioner’s testimony today is suspect. And [Counsel’s] testimony is not.
    [Counsel] hasn’t been impeached in any way.
    ....
    This was a case that had to do with the credibility of witnesses. . . .
    It boiled down to the testimony of a child against a man who had made a
    confession. He did not just make an admission, he confessed. The issues
    of whether that confession was voluntary, whether it was properly
    mirandized, whether it should come before the court had been decided by
    the trial level court and the Appeals Court. Both found it was a good
    admissible statement. . . .
    And this court has read the transcript of the suppression motion and
    finds that [Counsel] did a good job in his motion to suppress. He lost and
    the facts were against him. And the proof was that the [Petitioner’s]
    statement was voluntary, that it was not coerced, that it was not induced
    with promises, that it was properly [M]irandized, and it was a damning
    admission and confession to the very acts that were charged in the
    indictment.
    ....
    [Counsel] has given good reason why he did what he did. He has
    answered very easily, competently, and effectively all of the allegations and
    the issues that are brought before this Court today.
    The post-conviction court also pointed out that the Petitioner had failed to produce at the
    hearing the witness or witnesses he alleged should have been called to testify at trial. It
    noted that it was the Petitioner’s burden to locate any witnesses and present them to the
    post-conviction court.
    In a written order, the post-conviction court went on to state:
    14
    The Court accepts all testimony other than the Petitioner’s presented
    during this hearing as credible testimony. . . . Many of the allegations listed
    by the Petitioner and outlined in this Order were not supported by the
    testimony or other evidence, and the Court finds they are not a basis for
    post-conviction relief.
    ....
    The Court finds that the Petitioner has not shown by clear and
    convincing evidence that [Counsel’s] performance prior to or during trial
    was ineffective. [Counsel’s] testimony adequately explains sound reasons
    for his performance prior to and at trial and his advice to the Petitioner
    throughout representation.
    It is from the post-conviction court’s judgment that the Petitioner now appeals.
    II. Analysis
    The Petitioner contends on appeal that the post-conviction court erred when it
    denied his petition because he received the ineffective assistance of counsel when
    Counsel: (1) failed to introduce at trial evidence of the Petitioner’s prior request for
    counsel; (2) failed to introduce evidence of physical abuse suffered by the Petitioner at
    the hands of law enforcement during his interrogation; (3) failed to follow up with a
    witness to that abuse; (4) failed to introduce the video recording of the victim’s forensic
    interview; and (5) failed to call as a witness the medical expert who conducted the
    victim’s forensic exam. The State responds that the Petitioner failed to present at the
    post-conviction hearing any witnesses he claims should have been called to testify at trial
    and, thus, he is precluded from relief on that claim. The State further asserts that Counsel
    effectively represented the Petitioner and was found to be credible by the post-conviction
    court. Thus, the Petitioner has failed to meet his burden of proof. We agree with the
    State.
    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. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
    allegations in the petition for post-conviction relief by clear and convincing evidence.
    T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
    on appeal unless the evidence preponderates against it. Fields v. State, 
    40 S.W.3d 450
    ,
    456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
    evidence below; all questions concerning the credibility of witnesses, the weight and
    value to be given their testimony and the factual issues raised by the evidence are to be
    15
    resolved by the trial judge, not the appellate courts. Momon v. State, 
    18 S.W.3d 152
    , 156
    (Tenn. 1999); Henley v. State, 
    960 S.W.2d 572
    , 578-79 (Tenn. 1997). A post-conviction
    court’s conclusions of law, however, are subject to a purely de novo review by this Court,
    with no presumption of correctness. Id. at 457.
    The right of a criminally accused to representation is guaranteed by both the Sixth
    Amendment to the United States Constitution and article I, section 9, of the Tennessee
    Constitution. State v. White, 
    114 S.W.3d 469
    , 475 (Tenn. 2003); State v. Burns, 
    6 S.W.3d 453
    , 461 (Tenn. 1999); Baxter v. Rose, 
    523 S.W.2d 930
    , 936 (Tenn. 1975). The
    following two-prong test directs a court’s evaluation of a claim for ineffectiveness:
    First, the [petitioner] must show that counsel’s performance was deficient.
    This requires showing that counsel made errors so serious that counsel was
    not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
    Amendment. Second, the [petitioner] must show that the deficient
    performance prejudiced the defense. This requires showing that counsel’s
    errors were so serious as to deprive the [petitioner] of a fair trial, a trial
    whose result is reliable. Unless a [petitioner] makes both showings, it
    cannot be said that the conviction or death sentence resulted from a
    breakdown in the adversary process that renders the result unreliable.
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); see also State v. Melson, 
    772 S.W.2d 417
    , 419 (Tenn. 1989).
    In reviewing a claim of ineffective assistance of counsel, this Court must
    determine whether the advice given or services rendered by the attorney are within the
    range of competence demanded of attorneys in criminal cases. Baxter, 
    523 S.W.2d at 936
    . To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
    that counsel’s representation fell below an objective standard of reasonableness.” House
    v. State, 
    44 S.W.3d 508
    , 515 (Tenn. 2001) (citing Goad v. State, 
    938 S.W.2d 363
    , 369
    (Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing
    court should judge the attorney’s performance within the context of the case as a whole,
    taking into account all relevant circumstances. Strickland, 
    466 U.S. at 690
    ; State v.
    Mitchell, 
    753 S.W.2d 148
    , 149 (Tenn. Crim. App. 1988). The reviewing court should
    avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s
    challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
    conduct.” Strickland, 
    466 U.S. at 689-90
    . In doing so, the reviewing court must be
    highly deferential and “should indulge a strong presumption that counsel’s conduct falls
    within the wide range of reasonable professional assistance.” Burns, 
    6 S.W.3d at 462
    .
    Finally, we note that a defendant in a criminal case is not entitled to perfect
    16
    representation, only constitutionally adequate representation. Denton v. State, 
    945 S.W.2d 793
    , 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
    ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
    what is constitutionally compelled.’” Burger v. Kemp, 
    483 U.S. 776
    , 794 (1987) (quoting
    United States v. Cronic, 
    466 U.S. 648
    , 665 n.38 (1984)). Counsel should not be deemed
    to have been ineffective merely because a different procedure or strategy might have
    produced a different result. Williams v. State, 
    599 S.W.2d 276
    , 279-80 (Tenn. Crim.
    App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense, does
    not, standing alone, establish unreasonable representation. However, deference to
    matters of strategy and tactical choices applies only if the choices are informed ones
    based upon adequate preparation.” House, 
    44 S.W.3d at 515
     (quoting Goad, 
    938 S.W.2d at 369
    ).
    If the petitioner shows that counsel’s representation fell below a reasonable
    standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
    demonstrating there is a reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
    694; Nichols v. State, 
    90 S.W.3d 576
    , 587 (Tenn. 2002). This reasonable probability
    must be “sufficient to undermine confidence in the outcome.” Strickland, 
    466 U.S. at 694
    ; Harris v. State, 
    875 S.W.2d 662
    , 665 (Tenn. 1994).
    The Petitioner did not present as a witness at the post-conviction hearing the
    individual or individuals who he claims should have been called to testify at trial. This is
    required for him to show Counsel’s representation prejudiced him, as “this is the only
    way the [P]etitioner can establish that . . . the failure to have a known witness present or
    call the witness to the stand resulted in the denial of critical evidence which inured to the
    prejudice of the [P]etitioner.” Black v. State, 
    794 S.W.2d 752
    , 757 (Tenn. Crim. App.
    1990). Thus, he is not entitled to relief on his claims that certain individuals should have
    been called as witnesses.
    As to the Petitioner’s remaining claims, the evidence does not preponderate
    against the post-conviction court’s findings. Counsel testified that he was unaware that
    the Petitioner had made a request for an attorney that went unheeded and that his
    understanding was that the Petitioner had not been physically abused by the police during
    his interrogation. The Petitioner presented no evidence to the contrary, and the post-
    conviction court accredited Counsel’s testimony. As to Counsel’s decision not to
    introduce at trial the victim’s interview or have the victim’s examiner testify, Counsel
    stated that these were strategic decisions designed to shield the jury from further
    exposure to the victim’s statements about his sexual abuse by the Petitioner. Counsel’s
    strategy also prevented the jury from hearing evidence that the Petitioner had sexually
    abused other children. We conclude that these were sound tactical decisions that served
    17
    the Petitioner’s interests at trial, and we will not second guess them. Counsel provided
    the Petitioner with effective representation. Accordingly, we conclude that the Petitioner
    is not entitled to relief.
    III. Conclusion
    In accordance with the aforementioned reasoning and authorities, we affirm the
    post-conviction court’s judgment.
    ________________________________
    ROBERT W. WEDEMEYER, JUDGE
    18