Roger Clayton Davis v. State ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
January 14, 2000
NOVEMBER 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
ROGER CLAYTON DAVIS, *
C.C.A. No. 03C01-9902-CR-00076
Appellant, *
McMinn County
v. *
Honorable Stephen M. Bevil, Judge
STATE OF TENNESSEE, *
(Post-Conviction)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
Julie A. Rice Paul G. Summers
P. O. Box 426 Attorney General & Reporter
Knoxville, TN 37901-0426
(On Appeal) Ellen H. Pollack
Assistant Attorney General
Thomas E. Kimball 425 Fifth Avenue North
Assistant Public Defender Nashville, TN 37243-0493
110½ East Washington Avenue
Athens, TN 37303 Jerry N. Estes
District Attorney General
William W. Reedy
Assistant District Attorney General
130 Washington Avenue, N.E.
P. O. Box 647
Athens, TN 37371-0647
District Attorney General
OPINION FILED: _____________________________________
AFFIRMED
ALAN E. GLENN, JUDGE
OPINION
The petitioner, Roger Clayton Davis, appeals as of right from the McMinn County
Criminal Court’s dismissal of his petition for post-conviction relief wherein he claimed
ineffective assistance of counsel in his 1988 trial, which resulted in his convictions of five
counts of rape and one count of aggravated kidnapping. Based upon our review, we affirm
the trial court’s dismissal of the petition.
PROCEDURAL BACKGROUND
The petitioner is presently serving consecutive sentences totaling eighty-five years
in the state penitentiary as a Range I standard offender. The offenses for which he was
convicted occurred in January 1987. Petitioner appealed his 1988 conviction by the
McMinn County jury, and this court affirmed the conviction but remanded for resentencing.
See State v. Roger Clayton Davis, No. 170, 1989 WL 112748 (Tenn. Crim. App., Knoxville,
Sept. 29, 1989), perm. app. denied (Tenn. 1990).
Following his resentencing, petitioner appealed the judgment of the trial court
sentencing him to one hundred forty years. That sentence was modified by this court to
eighty-five years as a Range I standard offender. See State v. Davis, 825 S.W.2d 109(Tenn. Crim. App. 1991), perm. app. denied (Tenn. 1992). Petitioner filed his first post-
conviction relief petition on January 4, 1993. This court sustained the trial court’s dismissal
of his petition without a hearing. See Roger Clayton Davis v. State, No. 03C01-9308-CR-
00265, 1993 WL 523654 (Tenn. Crim. App., Knoxville, Dec. 16, 1993), perm. app. denied
(Tenn. 1994). Petitioner filed a second petition for post-conviction relief on June 20, 1994,
which was dismissed by the trial court without a hearing. On appeal to this court, we held
“that the petition alleges a colorable claim for relief and that the trial court improperly
dismissed the petition without first appointing an attorney, allowing appropriate
amendments, and then determining if an evidentiary hearing was warranted.” Roger
Clayton Davis v. State, No. 03C01-9409-CR-00323, 1995 WL 509422, at *1 (Tenn. Crim.
App., Knoxville, Aug. 29, 1995).
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Following a remand to the trial court of the petitioner’s second petition for post-
conviction relief, a hearing was held on January 5, 1999. The second petition for post-
conviction relief was dismissed by order of the post-conviction court on January 22, 1999.
Petitioner timely appealed to this court, and it is this appeal which we now review.
FACTS
The opinion of this court following the petitioner’s direct appeal of his conviction set
out the facts of the case:
On a cold January evening the victim was walking along the
streets of Knoxville from her place of residence at a family
crisis center approximately one mile to her former apartment,
when she accepted the appellant’s offer to drive her to the
apartment. The victim protested immediately when Appellant,
whom she did not know, did not drive in the direction of her
destination. He drove to a trailer at a construction site in
McMinn County, where he forced her to disrobe. Then, he
drove her, naked and bound, to a convenience store, where
she escaped by crawling through the car window and obtaining
refuge inside the store while the appellant was buying beer.
En route to the trailer, at the trailer and in the convenience
store parking area, the appellant physically forced the victim to
perform five separate acts of fellatio.
Davis, 1989 WL 112748, at *1. On November 8, 1987, while the petitioner was being held
in the Loudon County Jail prior to his trial on the kidnapping and rape charges, he escaped
on his black Yamaha motorcycle and ran into a police car that was stopped to block his
escape. He was taken by helicopter to Fort Sanders Regional Medical Center for
evaluation and treatment. He subsequently claimed that he suffered from amnesia as a
result of the accident. The Fort Sanders Regional Medical Center report stated: “The
patient had an obvious fracture of the left hip and of the right wrist and of the left hand.
Multiple lacerations about the left ear with some blood in the ear as well as some other
lacerations. The patient was seen by Dr. Finelli, neurosurgeon, and received a thorough
neurological work up.”
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ANALYSIS
Petitioner presents the following allegations to support his petition for post-
conviction relief based on the claim of ineffective assistance of counsel:
1. Failure of counsel to take any remedial action based
on petitioner’s medical condition;
2. Failure of counsel to request a change of venue;
3. Failure of counsel to determine which of petitioner’s
prior convictions might be used to impeach him in
order that he might make an informed decision
whether to exercise his right to testify at trial;
4. Failure of counsel to call witnesses in his behalf; and
5. Failure of counsel to investigate the victim’s
background for the purpose of substantiating
petitioner’s claimed defense that the victim was a
prostitute who solicited him.
In order to determine the competence of counsel, Tennessee courts have applied
standards developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905
(Tenn. Crim. App. 1997), perm. app. denied (Tenn. 1998) (noting that the same standard
for determining ineffective assistance of counsel that is applied in federal cases also
applies in Tennessee). The United States Supreme Court articulated the standard in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that
counsel’s assistance was defective. The standard is firmly grounded in the belief that
counsel plays a role that is “critical to the ability of the adversarial system to produce just
results.” Id. at 685, 104 S.Ct. at 2063. 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.
Id. at 687, 104 S.Ct. at 2064. The Strickland court further explained the meaning of
“deficient performance” in the first prong of the test in the following way:
In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assistance
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was reasonable considering all the circumstances. . . . No
particular set of detailed rules for counsel’s conduct can
satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.
Id. at 688-89, 104 S.Ct. at 2065. Petitioner must, therefore, establish that “the advice given
or the service rendered was not within the range of competence demanded of attorneys
in criminal cases[.]” Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.), perm.
app. denied (Tenn. 1991).
As for the prejudice prong of the test, the Strickland court stated: “The defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694, 104 S.Ct. at 2068; see also Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994)
(holding that petitioner failed to establish that “there is a reasonable probability that, but for
counsel’s errors, the outcome of the proceedings would have been different”).
Finally, the Strickland court stated what it deemed a critical point:
Most important, in adjudicating a claim of actual
ineffectiveness of counsel, a court should keep in mind that the
principles we have stated do not establish mechanical rules.
Although those principles should guide the process of decision,
the ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.
Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Courts need not approach the Strickland
test in a specific order or even “address both components of the inquiry if the defendant
makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.
By statute in Tennessee, the petitioner at a post-conviction relief hearing has the
burden of proving the allegations of fact by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-210(f) (1997). A petition based on ineffective assistance of counsel
is a single ground for relief, therefore all factual allegations must be presented in one claim.
See Tenn. Code Ann. § 40-30-206(d) (1997). “A bare allegation that a constitutional right
has been violated and mere conclusions of law shall not be sufficient to warrant any further
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proceedings. Failure to state a factual basis for the grounds alleged shall result in
immediate dismissal of the petition.” Id.; see also Cone v. State, 927 S.W.2d 579, 581
(Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996) (holding petitioner’s claim that
issues raised in a second petition were “novel” failed as “vague and conclusory”).
Finally, we note that when post-conviction proceedings have included a full
evidentiary hearing, the trial judge’s findings of fact and conclusions of law are given the
effect and weight of a jury verdict, and this court is “bound by the trial judge’s findings of
fact unless we conclude that the evidence contained in the record preponderates against
the judgment entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App.), perm. app. denied (Tenn. 1990).
A. Petitioner’s Mental Condition
First, petitioner asserts that, while he was at the Tennessee State Prison in
Nashville prior to his trial, he was treated for attempted suicide and severe depression; he
was given multiple medications on a daily basis; and no medications were provided for him
during the time he was held in the McMinn County Jail at the time of his trial. He claims
to have brought this situation to the attention of counsel, but counsel failed to request a
continuance or request that he be provided with his medications.
The only testimony introduced at the hearing to show that the petitioner lacked
capacity to stand trial because of depression or other medical problems was the testimony
of the petitioner’s mother and ex-wife. Petitioner’s mother testified that during the trial her
son “just wasn’t his self” and that “he didn’t act like he hardly recognized me. . . . He just
stared, and I take it it’s from the concussion that he had, or the medication they had him
on or something. He was not my son.” The petitioner’s ex-wife also testified that when she
saw him prior to the trial, “he wasn’t the same.”
The petitioner’s appointed counsel, whose legal service is the subject of this petition
for post-conviction relief, testified to the following during the hearing on this matter:
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Q [by General Reedy]. Okay. Now, memory loss or failure to
recall certain events that occurred sometime in the past is one
condition we can be familiar with, and I think everybody in the
general population is familiar with people who make those
claims, but as to what was played here by some of his family
members that he was disoriented, that he was not aware of the
events around him, not able to identify persons, just “out of it.”
Did you ever observe any of that before, during or after Mr.
Davis’ accident?
A. I never made that observation, General, but I did know this
much: that this issue that was raised here today would come
back to revisit at some future point, and so I took the
precaution of filing a motion for a mental evaluation because
I knew I would some day be put in the position of having to
explain why there was not much of a defense to offer a jury
based on this claim of amnesia. So I filed a motion for a
mental evaluation which resulted in the evaluation which has
been tendered I believe as Exhibit Number One.
The exhibit to which counsel referred is an outpatient psychiatric evaluation completed by
Dr. William M. Regan, a staff psychiatrist at the Middle Tennessee Mental Health Institute,
and Dr. Samuel N. Craddock, a licensed clinical psychologist. That report, prepared
following an evaluation of the petitioner on June 17, 1988, includes the following:
Mr. Davis’ professed inability to recall certain incidences
appears selective. He contends he does not recall prior
serious charges, the event that led to his present charge or
escaping from jail. However, interspersed among these
periods of forgetting, Mr. Davis is able to recall information
which places him in a favorable light. . . . Based upon the
above observations and Mr. Davis’ comments, he is
considered competent to stand trial. He does not appear to
have a mental illness or to lack the capacity to assist his
attorney if he so chooses. He is felt capable of following
courtroom testimony and aiding in his own defense.
We conclude that the petitioner has failed to show that counsel had any credible basis for
seeking a continuance or taking any other corrective action based on the petitioner’s
mental state.
B. Change of Venue
Second, the petitioner alleges that counsel’s failure to seek a change of venue was
an error of such magnitude as to constitute ineffective assistance of counsel. The
petitioner’s trial counsel did attempt to determine whether an impartial jury could be
obtained in McMinn County. Counsel filed a motion requesting that he be allowed to
conduct individual voir dire and attached various articles that had appeared in local tabloids
with respect to the pretrial publicity. The trial court held that its ruling would depend upon
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the responses of the prospective jurors. On voir dire, the trial court inquired of the panel:
“Do any of you folks know anything about these alleged crimes? Have you heard anything
about it? Have you read anything in the papers about it?” The only response was the
statement by one prospective juror who stated, “I’ve read about it in the papers.” Upon
further questioning by the trial court, the prospective juror stated that she could disregard
the news report and base her decision “solely and alone upon the evidence” presented at
trial. State v. Roger Clayton Davis, No. 170, 1989 WL 112748, at *1-2 (Tenn. Crim. App.,
Knoxville, Sept. 29, 1989). The trial court denied the motion for individual voir dire, and
there were no further questions of the jury concerning pretrial publicity. This court held,
“There is no showing that a significant possibility existed that the prospective jurors had
been exposed to potentially prejudicial material, mandating individual voir dire.” Id. at *2.
Additionally, the record includes a document dated July 21, 1988, signed by the petitioner,
which states, “The jurors seated are acceptable to me.” Thus, it is apparent that both
petitioner’s trial counsel and the trial court were aware of and dealt appropriately with the
pretrial publicity; and, at the time of the trial, the petitioner did not object to the jury. Based
on this, we conclude that the petitioner has failed to show that counsel had any credible
basis for seeking a change of venue and therefore this allegation is without merit.
C. Petitioner’s Prior Convictions
Third, the petitioner alleges that counsel’s failure to determine which of petitioner’s
prior convictions might be used to impeach him amounted to ineffective assistance of
counsel in that the petitioner was unable to make an informed decision concerning whether
he should testify at trial. The admissibility of evidence is a preliminary question for the
court. See Tenn. R. Evid. 104. Both the State and petitioner’s trial counsel noted that a
jury-out hearing was conducted by the trial judge concerning the admissibility of evidence
of prior crimes. The petitioner’s criminal record reflected convictions for receiving and
concealing stolen property (1977); false imprisonment (Florida, 1980); and escape (1982).
The record reflects that the 1980 Florida false imprisonment conviction arose from his
abduction and sexual assault upon an eighteen-year-old woman.
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As for the petitioner’s decision not to testify, petitioner’s trial counsel testified to the
following:
A. I explained to him the danger of taking the witness stand,
and one of the things we had talked about was not only his
prior conviction in Florida, but this claim of amnesia, and I told
him that claiming amnesia would be a very dangerous step to
take on the witness stand because it could result in the DA,
which was you, General, who would call witnesses to testify
that he was not in fact suffering from amnesia –
Q. In the person of the two –
A. Correct.
Q. Psychiatrists who offered that report.
A. That’s correct. That remembering certain facts and not
remember[ing] certain others would obviously create a bad
impression in front of the jury. So with specific reference to
this testimony on his own behalf we discussed that in detail.
And not only this issue of amnesia, but also after we
conducted a jury out hearing, and Judge Mashburn had ruled
certain convictions inadmissible and certain convictions
admissible, we made the decision not to testify, but it was one
that was advised and one which we had discussed.
The court noted the following during the evidentiary hearing on the petition for post-
conviction relief:
[I]t was indicated that one of his convictions would have been
let in, the receiving and concealing, the other convictions
Judge Mashburn kept out, which I find it was very appropriately
done, but still there would have been a conviction, and with
that and the amnesia issue, as I have talked about, and then
the sudden recall of facts, it would have been very damaging
to Mr. Davis’ credibility, and there was nothing further brought
up by Mr. Davis of indicating any willingness to testify once that
discussion was had.
Petitioner was granted a 404(b) hearing during the trial of his case, in accordance with the
Tennessee Rules of Evidence, and therefore was able to make an appropriately informed
decision concerning his right to testify. Later, as the trial progressed, he “changed his
mind” and decided that he wanted to testify in his own behalf. However, he stated during
the post-conviction hearing that he did not inform trial counsel that he had changed his
mind and wanted to testify. We conclude that this allegation is without merit.
D. Failure to Call Witnesses
Fourth, the petitioner alleges that counsel failed to call witnesses in his behalf,
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specifically, counsel failed to call Joseph Corley. Corley testified at the post-conviction
hearing that he and the petitioner were co-workers. The trailer at the construction site
where the two men worked was the one in McMinn County where the petitioner took the
victim. A sawed-off shotgun was found under a mattress in the trailer by police. Mr.
Corley, an ex-husband of the petitioner’s mother, could have established in his testimony
that the petitioner, and any number of other individuals who worked at the construction site,
regularly entered the trailer and knew of the existence of the shotgun. The petitioner
alleges that this testimony would have been helpful to him. The post-conviction court
found that “the testimony would have been more damaging to the defendant than helpful
because the testimony would have shown that Mr. Corley as well as the defendant, and
anyone else that would have been [in] the trailer, would have known that the shotgun was
in the trailer. This testimony, the Court finds, would not have bolstered the claim of
consensual sexual conduct.” We agree with this statement. Additionally, we note that,
according to the rules of professional responsibility in effect in Tennessee at the time of
this trial, a lawyer could “[w]here permissible, exercise his professional judgment to waive
or fail to assert a right or position of his client.” Tenn. Sup. Ct. R. 8, DR 7-101(B)(1). 1
In this case, defense counsel has been a licensed attorney since 1975, practicing
both as an assistant prosecutor for a number of years and later in private practice. As for
not calling the petitioner’s ex-stepfather to testify, that was a tactical decision made by a
clearly experienced attorney. Our supreme court has held that a reviewing court defers to
counsel’s trial strategy or tactical choices if they are informed and based upon adequate
preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). We conclude that this
allegation is without merit.
1
Our Supreme Court has adopted the Code of Professional Responsibility to “assist and
guide lawyers in their relationships with clients and others.” Zagorski v. State, 983 S.W.2d 654,
658 (Tenn. 1998). Additionally, in Zagorski v. State, our Supreme Court stated:
Generally, the client has exclusive authority to make decisions about
his or her case, which are binding upon the lawyer if made within the
framework of the law. . . . Counsel’s role in a criminal case is to
assist the defendant in making a defense and to represent the
defendant before the court.
Id. (citations omitted).
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E. Failure to Adequately Investigate and to Present Defense
Fifth, the petitioner alleges that counsel failed to adequately investigate the victim’s
background in order to present evidence at trial that would support the petitioner’s claim
of consensual, paid-for sexual conduct. Specifically, the petitioner alleges that counsel
should have determined if the victim had a record of prostitution; should have called an
unnamed Knoxville law enforcement officer to testify that Magnolia Avenue, the street
where the petitioner encountered the victim, was a known area for prostitution; and should
have verified the victim’s claim that she was living at a shelter.
The record shows that, while the petitioner testified as to the facts of the incident in
detail at the post-conviction hearing, 2 prior to the trial on his charges, he had provided
counsel with only a “general denial” with some indication that the victim was a prostitute.
Counsel’s handwritten notes from an interview with the petitioner on September 9,
1987—prior to his escape from jail, motorcycle accident, and claim of amnesia—were
admitted into evidence at the post-conviction hearing. According to those notes, the
petitioner stated that the victim told him she would like to ride naked and asked him to tie
her up and said that she had done this with her boyfriend before.
The petitioner does not recognize the difficult position that his trial counsel was in
at the time of trial. Although prior to the trial, he had told counsel in general terms of his
version of the events, he was claiming, by trial time, that he was “unsure” of “what actually
happened.” Thus, although the petitioner now claims that his defense was that the victim
solicited him, he does not advance a theory as to how this defense could have been more
2
Petitioner testified at the post-conviction hearing that he and the victim got in a fight at the
trailer when the victim tried “to roll” him and announced she was not going to leave and would cry
rape. He put the naked victim and her clothes in his car and drove to the convenience store to get
them both a beer to “calm down.” While he was in the store, the victim came “storming in the place
saying that I tried to rape her.” The following is an exchange with the prosecutor:
Q. She came running into the place where you were trying to buy
her a beer that she said she wanted, and she was naked and she
was screaming that you had raped her.
A. Yeah.
Q. And what happened next?
A. I turned around and walked out.
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effectively presented, since he elected not to testify, both because of claimed amnesia, as
well as one of his prior convictions being used for impeachment purposes. Trial counsel
was faced with a positive identification of the petitioner and a victim who refused to talk
with him. Counsel did go to Knoxville to try to find a record on the victim of any prior
convictions for offenses of prostitution. He found none. The post-conviction court stated:
[I]t appears to the Court, based on what I’ve heard, that he did
the best job with what he had. He did attempt to investigate,
he talked to the witnesses there at the convenience store, he
went to Knoxville and tried to look up the record of this alleged
victim to see whether or not she did have a record of
prostitution and tried to do these things. . . . As everyone
knows a person is not entitled by the constitution or the law of
the land to a perfect trial and not entitled to a lawyer that can
work magic, but a lawyer that can do the best job he can with
the facts and the law, and he’s entitled to a fair trial and
entitled to have every issue raised that can possibly, legally
and ethically be raised in his behalf.
We agree with the post-conviction court in this regard and conclude that this allegation is
without merit.
CONCLUSION
In all his challenges to the effectiveness of his counsel, the petitioner has failed to
meet his burden of demonstrating that counsel’s performance was not within the range of
competence demanded of attorneys in criminal cases. It is, therefore, unnecessary for us
to consider any possible prejudice to the petitioner. For these reasons, we hold that the
petitioner’s ineffective assistance of counsel claim is without merit. We affirm the
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dismissal by the trial court of the petition for post-conviction relief.
_____________________________________
ALAN E. GLENN, JUDGE
CONCUR:
__________________________________
DAVID G. HAYES, JUDGE
___________________________________
JOE H. WALKER, III, SPECIAL JUDGE
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