Kelvin DeWayne Golden v. State of Tennessee ( 2021 )

09/24/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 4, 2021
KELVIN DEWAYNE GOLDEN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-20-220 Roy B. Morgan, Jr., Judge
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No. W2020-01617-CCA-R3-PC
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After being convicted of aggravated sexual battery, Kelvin Dewayne Golden, Petitioner,
appealed his conviction and sentence. State v. Kelvin Dewayne Golden, No. W2018-
01477-CCA-R3-CD, 2019 WL 3412527, at *1 (Tenn. Crim. App. July 20, 2019), perm.
app. denied (Tenn. Oct. 14, 2019). They were affirmed on appeal. Id. He subsequently
sought post-conviction relief on the basis of ineffective assistance of counsel. The post-
conviction court denied relief after a hearing. Petitioner appeals. After a thorough review,
we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J. and D. KELLY THOMAS, JR., J., joined.
Joseph T. Howell, Jackson, Tennessee, for the appellant, Kelvin DeWayne Golden.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Jody S. Pickens, District Attorney General; and Al Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In January of 2018, Petitioner was indicted by the Madison County Grand Jury with
rape of a child. After a jury trial, Petitioner was convicted of aggravated sexual battery.
Petitioner was sentenced to ten years at 100 percent. On direct appeal from his conviction
and sentence, this Court determined that the evidence was sufficient to support the
conviction and that the trial court did not abuse its discretion in sentencing Petitioner to a
ten-year sentence. Id. at *4. The Tennessee Supreme Court denied permission to appeal.
Subsequently, Petitioner filed a timely pro se petition for post-conviction relief in
which he made various allegations of ineffective assistance of counsel. Specifically,
Petitioner alleged that trial counsel failed to discover and/or argue to the trial court that
there was a “fatal variance/constructive amendment” to the indictment; trial counsel failed
to present “Brady/impeachment information via mental health expert”; trial counsel failed
to seek exclusion of the testimony of L.B.1 at trial; and trial counsel failed to argue that
aggravated sexual battery was not a lesser included offense.
The post-conviction court appointed counsel. Counsel did not file an amended
petition. At an evidentiary hearing, when asked by post-conviction counsel, Petitioner
admitted that he failed to submit the original petition under oath but testified that the “facts
alleged in [the] petition [were] substantially true and correct.”
Petitioner explained that he was represented by counsel at trial and that he was found
guilty of aggravated sexual battery. His appeal was denied. Petitioner explained that trial
counsel “should have argued the fact that they didn’t have essential evidence” in the form
of injury or DNA to convict him.
Petitioner also complained that trial counsel failed to “give the alleged victim [L.P.]
a mental evaluation” because of inconsistencies in his testimony and statement. Petitioner
pointed out that L.B. “admitted that she had lied” and trial counsel failed to adequately
impeach her testimony at trial.
Petitioner was disappointed trial counsel did not mention the fact that even though
he was deemed competent to stand trial, he had “paperwork” to prove that he was
incompetent to stand trial. Petitioner claimed he told trial counsel he had previously gone
to a mental facility but that trial counsel failed to present that information at trial, telling
Petitioner “it could help or it could hurt.”
Petitioner also complained that trial counsel did not ask for a dismissal when the
trial court “dropp[ed the] case to a lesser included offense because aggravated sexual
battery is not a lesser included offense of rape of a child.” Petitioner also complained that
the wording of the indictment was confusing because it used the word “with”2 which
indicated that more than two people were involved.
1
It is the policy of this Court to identify minor victims of sexual abuse by their initials. While L.B.
is not the victim, we have chosen to use her initials to protect her identity.
2
According to the exhibit to the post-conviction hearing, the indictment alleged that Petitioner “did
intentionally, knowingly, and/or recklessly engage in sexual penetration with [the victim], . . . .”
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On cross-examination, Petitioner admitted that the jury found him guilty of
aggravated sexual battery after hearing the proof at trial and resolving any inconsistencies
in the testimony. Petitioner maintained that the wording of the indictment was misleading
because it seemed to indicate that the victim and Petitioner were having sex with a third
person because of the use of the word “with.”
Petitioner also claimed that trial counsel failed to properly investigate certain
aspects of the case, specifically with regard to asking Petitioner’s mother to speak with the
victim’s mother to determine whether the victim had a penchant for lying. Had it not been
for trial counsel’s ineffective representation, Petitioner thought that the case “would most
likely be dismissed.”
Trial counsel, an assistant public defender, was appointed to represent Petitioner at
trial. He recalled Petitioner was charged with rape of a child but convicted of aggravated
sexual battery.
Trial counsel described Petitioner as competent. He had represented Petitioner on
another case and recalled having discussions with Petitioner about various motions and
issues with regard to this case. Trial counsel felt that Petitioner understood the discussions
and “didn’t see a need” for “any other type evaluation.” Trial counsel was aware of
“treatment” that Petitioner may have had as a juvenile but did not “think it came to the
level of competency or insanity.”
Trial counsel acknowledged that it was not uncommon for witnesses to have
inconsistent statements. Trial counsel explained that “generally speaking[,]” he would
“point that out at trial to the jury.” Trial counsel remembered that there were some
“inconsistencies about who all was present” at the time of the incident.
Trial counsel did not see “any issue with the language of the indictment.” Trial
counsel confirmed on cross-examination that the indictment tracked the language of the
statute.
Trial counsel also explained on cross-examination that if there were apparent
inconsistencies in testimony by a witness he “would have pointed out and argued that to
the jury.” Trial counsel admitted that there were “probably a lot of things [he] could have
done different[ly], but nothing . . . to reach a different result.”
At the conclusion of the hearing, the post-conviction court denied relief. The post-
conviction court determined that trial counsel was credible and was candid about “what he
did or didn’t do in the case.” With regard to Petitioner’s complaint that trial counsel failed
to present certain witnesses at trial, the post-conviction court noted that Petitioner failed to
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“offer any proof” at the hearing about which witnesses trial counsel failed to call or what
proof they would have offered. Additionally, the post-conviction court noted that
Petitioner did not show how testimony from these witnesses would have changed the
outcome of trial.
With regard to trial counsel’s failure to present evidence on Petitioner’s behalf, the
post-conviction court noted that Petitioner failed to present any evidence that would have
made a difference at trial or that trial counsel failed to present that would have changed the
outcome of the case. Similarly, the post-conviction court found that there was no indication
that Petitioner or the victim needed a mental health evaluation or that the outcome of the
case would have changed had there been a mental health evaluation performed. Likewise,
the post-conviction court found no deficiency with regard to trial counsel’s impeachment
of L.B.
The post-conviction court also determined that Petitioner failed to prove that trial
counsel was ineffective for failing to investigate or that there were discovery violations
prior to trial. With regard to the indictment, the post-conviction court determined that there
was no defect and that Petitioner was aware of the charges that he faced. Finally, the post-
conviction court determined that any other issues not raised were waived.
In a written order, the post-conviction court again denied relief. Petitioner appealed.
Analysis
On appeal, Petitioner argues the post-conviction court erred in denying the petition
for relief. Specifically, Petitioner complains that trial counsel’s representation was
deficient because he failed to research a fatal variance in the indictment, failed to have
Petitioner evaluated for competency, failed to investigate the victim’s credibility, and failed
to impeach the victim and other witnesses. The State insists that Petitioner has not provided
clear and convincing proof that trial counsel failed to provide him with constitutionally
competent representation or that deficiencies in representation led to prejudice.
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 152,
156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.” Hicks v. State,
983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-conviction court’s
findings of fact are conclusive unless the evidence preponderates otherwise. Vaughn v.
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State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence are to be resolved by the post-conviction court, and an appellate court may
not substitute its own inferences for those drawn by the post-conviction court. State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However, the post-conviction court’s
conclusions of law and application of the law to the facts are reviewed under a purely de
novo standard, with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001).
Ineffective Assistance of Counsel
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-prong
test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner must
prove that counsel’s performance was deficient and that the deficiency prejudiced the
defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel applied in federal cases
also applies in Tennessee). Because a petitioner must establish both elements in order to
prevail on a claim of ineffective assistance of counsel, “failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 697).
The test for deficient performance is whether counsel’s acts or omissions fell below
an objective standard of reasonableness under prevailing professional norms. Strickland,
466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the questionable
conduct from the attorney’s perspective at the time, Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982), and “should indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999).
Even if a petitioner shows that counsel’s representation was deficient, the petitioner
must also satisfy the prejudice prong of the Strickland test in order to obtain relief. The
question is “whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364,
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372 (1993). A petitioner must show that there is a reasonable probability “sufficient to
undermine confidence in the outcome” that, “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).
Here, Petitioner complained about trial counsel’s failure to point out a fatal variance
between the indictment and proof and that the use of the word “with” in the indictment was
confusing. However, Petitioner was convicted of a lesser-included offense and on direct
appeal, this Court determined that the proof was sufficient to support the conviction.
Kelvin Dewayne Golden, 2019 WL 3412527, at *2. The post-conviction court determined
that Petitioner failed to prove his allegations by clear and convincing evidence and we
agree. Moreover, Petitioner failed to show prejudice.
With respect to his own competency, Petitioner failed to present any evidence at the
post-conviction hearing, other than his own opinion, as to what a mental health evaluation
would have shown. Likewise, Petitioner failed to present any evidence about
inconsistencies in the victim’s testimony that would have affected the outcome at trial.
Finally, with regard to trial counsel’s alleged failure to investigate, Petitioner presented no
proof that trial counsel failed to prepare for trial or present witnesses.
[W]hen a petitioner contends that trial counsel failed to discover, interview,
or present witnesses in support of his defense, . . . the petitioner [must prove]
that (a) a material witness existed and the witness could have been discovered
but for counsel’s neglect in his investigation of the case, (b) a known witness
was not interviewed, (c) the failure to discover or interview a witness inured
to his prejudice, or (d) 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 petitioner.
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Petitioner has failed to
prove his allegations of ineffective assistance of counsel by any measure of competent
evidence, let alone clear and convincing evidence. Petitioner is not entitled to relief on this
issue.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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