Stevie Michael Irwin v. State of Tennessee ( 2021 )

10/13/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 27, 2021
STEVIE MICHAEL IRWIN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 110529 G. Scott Green, Judge
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No. E2020-01598-CCA-R3-PC
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The petitioner, Stevie Michael Irwin, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received the effective assistance of
counsel at trial and on appeal. After our review of the record, briefs, and applicable law,
we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and ROBERT W.WEDEMEYER, J., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Stevie Michael Irwin.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme Allen, District Attorney General; and Sara Keith, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On direct appeal, this Court summarized the facts surrounding the petitioner’s
convictions for two counts of rape of a child, two counts of attempted rape of a child, one
count of aggravated sexual battery, and one count of incest, as follows:
In April of 2011, [the petitioner] was charged in an eight-count
presentment by the Knox County Grand Jury with five counts of rape of a
child, one count of attempted rape of a child, one count of aggravated sexual
battery, and one count of incest for events occurring between February 1,
2007, and October 19, 2010. The charges were based on allegations made
by [the petitioner’s] daughter, the victim.1 Specifically, the presentment
alleged rape of a child in Count One by virtue of penile/vaginal penetration;
rape of a child in Count Two by penile/oral penetration; rape of a child in
Count Three by digital/vaginal penetration; rape of a child in Count Four by
object/vaginal penetration; attempted rape of a child in Count Five by
attempted penile/anal penetration; rape of a child in Count Six by causing the
victim’s step-brother to engage in penile/vaginal penetration; aggravated
sexual battery in Count Six by oral/breast contact; and incest in Count Seven
by penile/vaginal penetration of his daughter.
At the time the abuse started, the victim was approximately four years
of age. She lived in a trailer with [the petitioner], her mother, her older step-
brother, and her two younger siblings. The victim and the step-brother slept
on the couch at the time because the window in the victim’s bedroom was
broken.
The victim reported the abuse to her mother when she was
approximately eight years of age and in the third grade. She did not
remember exactly when the abuse started but stated that it happened almost
every day for a long period of time. Her mother, in turn, reported the abuse
to the Department of Children’s Services. The victim was taken to the
hospital where an exam was performed. Detective Brian Williams of the
Knox County Sheriff’s Office was assigned to the case. He interviewed [the
petitioner], the victim, the step-brother, and the mother. After a search of the
home, several items were seized: (1) two pairs of girl’s panties; (2) men’s
underwear; (3) bed sheets; (4) a pillow sham; (5) a blanket; (6) a comforter;
(7) five bath towels; and (8) a piece of plastic sheeting. Buccal swabs were
taken of all four people interviewed.
Jennifer Milsaps, a Special Agent forensic scientist in the serology
and DNA unit of the Tennessee Bureau of Investigation Crime Lab in
Knoxville, testified at trial. According to Special Agent Milsaps, the results
of testing the pair of green panties seized from the house indicated the
presence of the DNA of the victim and [the petitioner] in the crotch area. The
mother and step-brother were excluded as possible contributors. No other
items were submitted for testing. Special Agent Milsaps agreed that DNA
could be transferred from other clothing or from a towel to the panties. The
1
It is the policy of this Court to protect the identity of the victims of sexual abuse.
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vaginal swabs taken from the victim on the night she made the allegations
were negative for the presence of sperm.
The victim was twelve years old at the time of trial. According to the
victim, [the petitioner] started the abuse by “touching” her “breasts and
private parts” with his hands and mouth. [The petitioner] also touched her
vagina, using “his penis,” “his fingers,” and “his mouth.” The victim
testified that it went on “for like, a long time” and that her step-brother was
often home at the time of the abuse. The victim described being raped
“almost every day.” She vividly described [the petitioner’s] ejaculations as
“clear-ish, but yet like a - - clear-ish, white-ish, but yellow-ish stuff” that [the
petitioner] referred to as “baby juice.” [The petitioner] also put “just his
finger” inside her vagina, and she recalled him “sucking” on her breasts.
[The petitioner] also licked her vagina. On one particular occasion, [the
petitioner] sat on the victim while she was lying on her stomach and
attempted to put his penis in her “butt.” [The petitioner] was unsuccessful
because the victim was “moving.” The abuse happened in [the petitioner’s]
bedroom.
The victim also described an occasion on which [the petitioner] “tried
to make [her step-brother] do it with [her].” The victim’s step-brother
corroborated this particular episode, explaining that he was around twelve
years old at the time and both he and the victim were naked in [the
petitioner’s] bedroom. [The petitioner] was “giving instructions.” For
example, [the petitioner] told them to take off their clothes and instructed the
victim to give her step-brother oral sex. The step-brother was unable to “get
[it] up” and eventually “freaked out” and left. [The petitioner] implied that
he would have sex with the victim after the step-brother left the room.
On cross-examination, the victim admitted that she had experienced a
wide variety of mental and personality problems since early childhood,
including visual and auditory hallucinations. The victim also reported that
she had been under the care of ten different therapists since being separated
from her family and that she had lived in a total of nine different facilities,
group homes, and/or foster homes in the four years since she reported the
abuse. The victim admitted various behavioral difficulties while in group
care, including kicking a pregnant foster mother and slamming someone’s
hand in a door out of anger. The victim also admitted that she previously
told case workers with the Department of Children’s Services that [the
petitioner] only touched her breast one time with his hand.
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The step-brother testified that he recalled hearing “noises” often
coming from [the petitioner’s] bedroom. These noises happened when his
mother was not present at the home. Some of the noises sounded like
“moaning.” He did not actually see anything happen between [the petitioner]
and the victim.
The step-brother admitted that he and the victim engaged in sexual
“penetration” on more than one occasion, starting around the time the victim
was five years old and he was eight. The step-brother learned about sexual
things from [the petitioner] and “this kid named T[].” He explained that [the
petitioner] taught him about sex, even making him a “penis growing pump”
out of a tube when he was eight or nine years of age. The first time anything
happened between the step-brother and the victim, the two were “literally
rubbing on each other.” The step-brother also admitted that he and “T[]” had
sex with the victim and that he had convinced the victim to have sex with
other people.
At the conclusion of the State’s proof, [the petitioner] moved for a
judgment of acquittal on Counts Two (alleging penile/oral penetration), Four
(alleging object/vaginal penetration), and Six (alleging penile/vaginal
penetration of victim by the step-brother at the direction of [the petitioner]).
The State conceded as to Counts Two and Four. The trial court agreed with
the concession and amended Count Six to attempted rape of a child based on
the proof presented at trial. [The petitioner] elected not to testify and did not
present additional proof.
The jury found [the petitioner] guilty of rape of a child in Counts One
(alleging penile/vaginal penetration) and Three (alleging digital/vaginal
penetration). Additionally, [the petitioner] was found guilty of two counts
of attempted rape of a child in Count Five (alleging attempted penile/anal
penetration) and Count Six (alleging attempted penile/vaginal penetration of
victim by the step-brother at the direction of [the petitioner]) as well as one
count of aggravated sexual battery in Count Seven (alleging oral/breast
contact) and one count of incest in Count Eight. The trial court sentenced
[the petitioner] to twenty-five years for each conviction for rape of a child,
ten years for each conviction for attempted rape of a child, ten years for the
conviction for aggravated sexual battery, and five years for the conviction
for incest. The trial court ordered partial consecutive sentences, imposing a
total effective sentence of thirty-five years.
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State v. Stevie Michael Irwin, Jr., No. E2015-01448-CCA-R3-CD, 2016 WL 2853875, at
*1-3 (Tenn. Crim. App. May 11, 2016), no perm. app. filed.
Following the denial of his direct appeal, the petitioner filed a timely pro se petition
for post-conviction relief. After the appointment of counsel, the petitioner filed an
amended petition for post-conviction relief, arguing trial counsel was ineffective in
advising the petitioner not to testify. An evidentiary hearing was held on October 16, 2020,
during which the petitioner and trial counsel testified.
Trial counsel testified that he was appointed to represent the petitioner in 2012,
approximately two years prior to trial. Trial counsel met with the petitioner multiple times
and reviewed all discovery, including the serology report and statements from the victim
and her step-brother. Because the victim had a history of auditory and visual
hallucinations, the defense strategy was to introduce evidence of her hospitalizations and
treatment in an effort to discredit her.
Trial counsel and the petitioner discussed at length whether the petitioner should
testify at trial. Although the petitioner did not have a prior criminal history, he had issues
with communication, and trial counsel was concerned that his testimony would be “more
detrimental because [his testimony] was not always clear.” Specifically, trial counsel noted
the petitioner was “very slow to process [and regurgitate] information,” and “there would
oftentimes be long pauses on questions” when trial counsel expected a quick response. At
trial, after the State rested, trial counsel had an additional conversation with the petitioner
about the possibility of testifying, and trial counsel informed the petitioner that, while it
was ultimately the petitioner’s decision, trial counsel believed “there was great danger in
[the petitioner] testifying.”
The petitioner testified that trial counsel was the second attorney appointed to
represent him on these charges. The petitioner and trial counsel had a cordial relationship,
and trial counsel was “probably one of the most understanding people that [the petitioner]
worked with in all of this.” Although the petitioner wanted to testify and deny the
allegations, trial counsel was worried the petitioner’s communication issues would be
exploited by the State to discredit him. The petitioner, who has offset Asperger’s, admitted
he has “a little bit of trouble when it comes to direct confrontational communication.” Trial
counsel practiced “mock trial situation[s]” with the petitioner to prepare him for the
possibility of testifying. However, because the petitioner tended to become angry when he
could not express himself clearly, “[the mock cross-examinations] would always end in
[trial counsel] telling [the petitioner] that [he] couldn’t . . . argue with the attorneys.”
During trial, after the State rested, trial counsel told the petitioner that the State “did
not have their stuff together” and that the petitioner should waive his right to testify. The
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petitioner was reluctant to do this because, during voir dire, one of the jurors had stated
that if a person is innocent they should testify on their own behalf. Ultimately, the
petitioner felt he should follow trial counsel’s advice and waived his right to testify during
a Momon2 hearing.
Had he testified at trial, the petitioner would have told the jury that his wife
manipulated the victim and her step-brother into making the accusations against him.
Regarding the DNA on the victim’s underwear, the petitioner would have testified that he
and his wife had sexual intercourse sometime before the police were called, and when his
wife went into the bathroom to clean up, she must have accidentally picked up the victim’s
underwear instead of a towel.
After its review of the evidence presented, the post-conviction court entered a
written order containing findings of fact and denying relief, and this timely appeal
followed.
Analysis
On appeal, the petitioner argues trial counsel was ineffective for advising the
petitioner not to testify. Specifically, the petitioner contends that he was “fully able to
express his denials of the accusations against him, when testifying at the post-conviction
hearing” and that his testimony at trial would not have undermined the strategy of
challenging the victim’s credibility. The State contends the post-conviction court properly
denied the petition.
The petitioner bears the burden of proving his post-conviction factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. See Ruff
v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel
presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
Thus, this Court reviews the petitioner’s post-conviction allegations de novo, affording a
presumption of correctness only to the post-conviction court’s findings of fact. Id.; Burns
v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
2
Momon v. State, 18 S.W.3d 152 (Tenn. 1999).
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To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:
First, the defendant 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 defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.; see
also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the Strickland test is
satisfied when the petitioner shows there is a reasonable probability, or “a probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. However, “[b]ecause of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
At the evidentiary hearing, trial counsel testified he and the petitioner discussed the
petitioner’s potential testimony at length. However, because the petitioner has issues with
communication, trial counsel believed there was “great danger in [the petitioner]
testifying.” Although trial counsel told the petitioner that he did not believe the petitioner
should testify, the petitioner was aware he would need to make the final decision. The
petitioner corroborated much of trial counsel’s testimony, stating that he and trial counsel
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discussed the possibility of the petitioner testifying and that trial counsel was worried about
the petitioner’s communication issues.
Implicit in the post-conviction court’s order denying relief is an accreditation of trial
counsel’s testimony, and nothing in the record preponderates against the post-conviction
court’s factual findings. See Tidwell, 922 S.W.2d at 500. Trial counsel and the petitioner
discussed the petitioner’s right to testify, and trial counsel advised the petitioner that,
because of the petitioner’s issues with communication, his testimony would likely be
“detrimental.” Based on our review of the record, trial counsel’s advice to the petitioner
not to testify was an informed and sound tactical decision based on adequate preparation.
Trial counsel’s performance was “within the range of competence demanded of attorneys
in criminal cases,” see Henley, 960 S.W.2d 572, 579 (Tenn. 1997), and did not “fall below
an objective standard of reasonableness under prevailing professional norms.” Goad v.
State, 938 S.W.2d 263, 369 (Tenn. 1996). The petitioner is, therefore, not entitled to relief.
Furthermore, during the trial, the trial court held a Momon hearing in which the
petitioner testified he understood that he had a right to testify and that the decision of
whether to testify was his to make. Trial counsel asked the petitioner whether they had
“talked about potential advantages and disadvantages associated with [testifying],” and the
petitioner answered, “That is correct.” It is well-settled that a petitioner’s “[s]olemn
declarations in open court carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977). Accordingly, the petitioner has failed to show that he is entitled
to post-conviction relief.
Conclusion
Based upon the foregoing authorities and reasoning, we affirm the post-conviction
court’s judgment denying the petitioner post-conviction relief.
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J. ROSS DYER, JUDGE
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