Paul Stackhouse v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 28, 2015 Session
PAUL STACKHOUSE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamblen County
No. 13CR112 John F. Dugger, Jr., Judge
No. E2014-01328-CCA-R3-PC – Filed July 17, 2015
A Hamblen County jury convicted the Petitioner, Paul Stackhouse, of aggravated sexual
battery, a Class B felony, and the trial court sentenced him to nine years in the Tennessee
Department of Correction. The Petitioner appealed, and this Court affirmed the
conviction. State v. Paul M. Stackhouse, No. E2010-01972-CCA-R3-CD, 2011 WL
5620925, at *1 (Tenn. Crim. App., at Knoxville, Nov. 18, 2011), perm. app. denied
(Tenn. March 7, 2012). Thereafter, the Petitioner filed a petition for post-conviction
relief, and, after a hearing, the post-conviction court issued an order denying the petition.
On appeal, the Petitioner maintains that he received the ineffective assistance of counsel.
After a thorough review of the record and relevant law, 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 D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.
Greg W. Eichelman, District Public Defender; and D. Clifton Barnes, Assistant District
Public Defender, Morristown, Tennessee, for the appellant, Paul Stackhouse.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Dan
E. Armstrong, District Attorney General; and Kimberly Morrison, Assistant District
Attorney General, for the appellee, State of Tennessee
OPINION
I. Facts
A Knox County grand jury indicted the Petitioner for aggravated sexual battery of
his granddaughter. This Court summarized the facts presented at trial as follows:
The State called the victim—one of the [Petitioner]‘s
granddaughters—as its first witness. The victim testified that in 2006, her
parents had been divorced for about two years. The victim testified that
although she lived with her mother, she still had visitation with her father,
and that her father lived with his parents, the [Petitioner] and his wife. The
victim testified that her visitation period included the entire summer, during
which time she was living in her own room in the [Petitioner]‘s house in
Hamblen County.
During this summer visitation period, the victim testified that
sometime during June of 2006, she had just finished taking a shower in the
bathroom connected to the [Petitioner]‘s bedroom when the [Petitioner]
entered the bathroom and started touching her breasts. She further testified
that he carried her into his bedroom, laid her down on the bed, and
performed oral sex on her. The victim specified that the oral sex included
the [Petitioner] placing his mouth on her vagina and licking her. The
victim testified that on this occasion, while the oral sex was occurring, the
[Petitioner]‘s wife, Doris Stackhouse, entered the room and saw them on
the bed. According to the victim, Doris Stackhouse was speechless, but a
surprised expression washed over her face before she ran out of the room.
The victim testified that after this interruption, the [Petitioner] stopped what
he was doing and chased after his wife. The victim testified that after the
[Petitioner] left, she dressed herself and ran down the hall to her own
bedroom.
On cross-examination, the [Petitioner]‘s counsel asserted that the
victim‘s father remarried in January 2006 and that he moved out of his
parents‘ house following his remarriage. Defense counsel asked the victim
whether the sexual contact she had just described had occurred before her
father had moved out of the home. The victim stated that she believed it
had but that, regardless of whether or not her father was still living there,
she spent considerable time staying at her grandparents‘ house during June
of 2006. The [Petitioner]‘s counsel brought to the victim‘s attention earlier
statements made to investigators and on the stand to the effect that the act
of cunnilingus at issue had occurred while her father was still living in his
parents‘ home. The victim then testified that if the sex act had not
happened in June of 2006, it must have happened in 2005. The
[Petitioner]‘s trial counsel proceeded to impeach the victim with statements
made to investigators in 2008 to the effect that nothing had happened
between her and the [Petitioner]. Finally, defense counsel raised the issue
of a letter written by the [Petitioner] in 2008 that seemed to indicate that the
sex act at issue had occurred three years earlier. The witness agreed that if
2
she made that statement in 2008, then it sounded correct to her that the sex
act would have occurred in 2005. Ultimately, the victim answered yes to a
statement made by the [Petitioner]‘s counsel that the sex act at issue did not
occur in June of 2006.
On re-direct examination, the victim testified that she was under the
age of thirteen when the sexual contact that was witnessed by the
grandmother occurred. The victim further testified that when investigators
initially questioned her regarding the incident she denied it on several
occasions because she was afraid of what might happen to her and to her
grandfather.
The State next called the [Petitioner]‘s wife, Ms. Doris Stackhouse.
Ms. Stackhouse testified that she had been married to the [Petitioner] for
forty-seven years and was married to him in June of 2006. She further
testified that only herself and her husband were living in their home in June
of 2006, and that none of their grandchildren ever stayed with them, even
intermittently, during that time. The witness specifically testified that the
victim would never have stayed with them at any point during June of
2006. Following this testimony, the prosecution requested and received
permission to treat Ms. Stackhouse as a hostile witness. During the ensuing
cross-examination, Ms. Stackhouse denied that the victim ever visited the
residence during June of 2006, denied ever seeing her husband with the
victim in their bedroom, and denied ever seeing them together on a bed
while the victim was nude. Concerning whether she had ever walked in
and seen the victim naked on their bed, she stated that ―there is a possibility
that that may have happened, but it‘s not in my memory bank.‖
The State then questioned Ms. Doris Stackhouse as to whether she
could recall going to visit Dr. Kim Keinath (her therapist) on September 15,
2006. Ms. Stackhouse replied that she had been a patient of Dr. Keinath
―on and off‖ for some time but could not recall the specific dates of her
appointments. The State asked Ms. Stackhouse if she could recall ever
telling Dr. Keinath that she thought her husband was abusing the victim.
Ms. Stackhouse stated that she never made any such statement and
specifically denied telling Dr. Keinath that she had walked into the
bedroom and seen her granddaughter naked on the bed being fondled by her
husband.
The State then called Dr. Kim Keinath as a rebuttal witness. The
defense objected on grounds that this impeachment testimony was not
permissible during the State‘s case-in-chief and also objected on the
grounds that the witness‘s testimony would include allegations of crimes
3
that were outside of the one alleged in the Bill of Particulars. Following a
jury-out hearing, the trial court decided to allow the testimony.
Dr. Keinath took the stand and testified that she had a Ph.D. in
clinical psychology and had been treating Ms. Doris Stackhouse as a patient
since approximately 1993. The witness testified that on September 15,
2006, Ms. Stackhouse came in to a session with her and said, ―my life has
changed dramatically.‖ Ms. Stackhouse proceeded to tell her that she had
walked into her bedroom and seen her granddaughter lying on the bed,
partially unclothed, and that her husband was down between her
granddaughter‘s legs. Dr. Keinath further testified that Ms. Doris
Stackhouse stated: ―I think my husband has been sexually abusing my
granddaughter and I think this has been going on for a very long time.‖
Following this statement, the trial court instructed the jury that with regard
to the witness‘ testimony concerning ―something‖ going on ―for a very long
time,‖ they were not to consider anything concerning any other incidents
but were only to consider the particular incident that was alleged and
charged in the indictment.
Dr. Keinath stated that she advised Ms. Stackhouse to report this
incident to the Department of Children‘s Services (D.C.S.) and explained
that if she would not do so, then the doctor would report it herself. Dr.
Keinath testified that the rest of the session was spent discussing the
possibility of making a report to D.C.S. Dr. Keinath testified that Ms.
Stackhouse stated that while she was very angry with her husband and
would ensure that he was never around any of the children, she thought that
the [Petitioner]‘s behavior might be secondary to his dementia. At some
point after this session, when she concluded that Ms. Stackhouse was not
going to report the incident to D.C.S., Dr. Keinath stated that she called and
reported the incident herself.
On cross-examination, Dr. Keinath stated that nothing in her records
spoke to whether or not this sexual contact occurred in June of 2006.
Moreover, nothing in her records identified the victim as being the
particular granddaughter who was abused by the [Petitioner] during the
incident referenced by Ms. Stackhouse during her therapy session.
Following this testimony, the State presented the testimony of Dr.
Peter Reardon, an expert in pediatric gynecology. During a jury out
hearing, the defense objected to his testimony and report on the ground that
it was ―fraught with indications of other crimes.‖ Specifically, the
[Petitioner] complained that the doctor‘s report, which indicated that the
victim‘s hymen had been torn, indicated that this tearing could have been
4
the result of penetration by either a tongue or a digit. The trial court agreed
that Dr. Riordan could not opine regarding whether or not any digital
penetration of the victim‘s vagina had occurred, because this proof would
go beyond the crime specified in the Bill of Particulars.
When the jury returned, Dr. Riordan testified that he had performed
an examination of the victim in November of 2006, and that his
examination revealed that the victim‘s hymen had been torn at some earlier
point in time. Dr. Riordan further testified that the tearing of the victim‘s
hymen had healed. Over the [Petitioner]‘s objection, Dr. Riordan testified
that this tearing could possibly have been the result of oral sex or oral
penetration.
On cross-examination, Dr. Riordan testified that it was not possible
to determine the exact time when the victim‘s hymen had been torn. He
testified that based on the hymen‘s healing process, he would assume that
the injury occurred more than two months prior to his examination, and
possibly three months. Dr. Riordan also testified that a number of different
things can break a hymen, including a fall, and that it was possible for a
hymen to be torn without any vaginal penetration. Following the doctor‘s
testimony, the State rested.
The [Petitioner] moved to have Dr. Riordan‘s testimony struck as
speculative. This motion was denied. The [Petitioner] also moved for a
judgment of acquittal on the basis that the State had failed to prove the date
of the crime as specified in the Bill of Particulars. The trial court ruled that
any discrepancy between the victim‘s testimony on direct examination that
the event happened in 2006 and her testimony on cross-examination that
the event happened in 2005 went to her credibility as a witness and was an
issue for the jury to decide. After denying the [Petitioner]‘s motion for a
judgment of acquittal, the trial court held a jury out hearing during which
the [Petitioner] was advised of and waived his right to testify in his own
defense pursuant to the procedures described in Momon v. State, 18 S.W.3d
152, 162-64 (Tenn. 1999).
The defense called Ms. Sheila Barnett, a child protective services
worker for the Department of Children‘s Services, as its first witness. Ms.
Barnett testified that she interviewed the victim alone at her school in
Cocke County on November 3, 2006. At this initial interview, the victim
denied being touched inappropriately by anyone. Ms. Barnett testified that,
during this interview, she told the victim that if she remembered anything
later or if she was afraid to talk about anything during the interview, the
victim should write her a letter. Ms. Barnett stated that at some point
5
following this interview, she was made aware that the victim had written a
letter that she wanted Ms. Barnett to read. That letter, dated December 1,
2006, stated that one day the [Petitioner] had licked her ―down there‖ and
that her grandma had come in and seen it. The letter indicated that this
event had happened three years earlier. The witness testified that, during a
subsequent interview concerning this letter, the victim confirmed to her that
the sexual contact described in the letter had occurred and claimed that it
happened about three years earlier (which would have placed it sometime
during December of 2003).
The second witness for the defense was the lead investigator of the
case, Detective Pam Taylor of the Hamblen County Sheriff‘s Department.
Upon being shown some notes she took during her investigation, she
identified a place on those notes that reflected that the particular sexual act
between the grandfather and the victim that was witnessed by the
grandmother occurred during the summer of 2005.
On cross-examination, Detective Taylor identified two additional
places in her notes in which the sexual contact that was witnessed by the
grandmother was labeled as having occurred during the ―summer of
2005/2006.‖ The detective further admitted that it was possible that the
sexual contact could have occurred in the summer of 2006. On redirect,
Detective Taylor re-read a portion of her notes, which stated that several
people were ―in the house when grandma caught grandpa performing oral
sex. [A male] was cooking, summer 2005.‖
The defense next called Ms. Doris Stackhouse as a witness. Ms.
Stackhouse testified that during most of June of 2006, she and her husband
were in Maryland and that at one point the [Petitioner] was hospitalized
there. Ms. Stackhouse testified that she had kept certain travel receipts for
tax purposes so that she could deduct the couple‘s trip to Maryland as a
business expense. Ms. Stackhouse testified that the victim was never in her
home in June of 2006, and that she had receipts dated June 2, 2006, through
at least June 14, 2006, reflecting that the couple was traveling out-of-state.
Ms. Stackhouse also testified that the [Petitioner] was hospitalized out-of-
state from June 10, 2006 to June 16, 2006, and she produced hospital
documents reflecting those dates. Ms. Stackhouse stated that the couple‘s
trip to Maryland continued until June 20, 2006, and that the [Petitioner] was
extremely ill when they arrived back at home. The witness testified that the
[Petitioner] was hospitalized again on July 3, 2006. She testified that,
during the intervening time, the [Petitioner] was a very sick man who
―couldn't lift his head off the pillow.‖
6
Following her testimony, the State called Mr. Teddy Collingsworth
of the District Attorney General‘s Office for the Third Judicial District as a
rebuttal witness. Investigator Collingsworth testified that he met with the
victim in the fall of 2007, in an attempt to figure out when the sexual
contact witnessed by the grandmother had occurred. According to his
testimony, the victim stated that the sexual contact at issue happened in the
summer between her seventh and eighth grade school years, which the
investigator stated would have been in the summer of 2006. On cross-
examination, however, the investigator stated that, according to his notes, if
the incident occurred between the victim‘s seventh and eighth grade years,
it would have occurred during the summer of 2007.
Stackhouse, 2011 WL 5620925, at *1-5. After hearing the evidence, the jury convicted
the Petitioner of aggravated sexual battery, and the trial court sentenced the Petitioner to
serve nine years in the Department of Correction. The Petitioner appealed his conviction,
which was affirmed. Id.
The Petitioner filed a timely post-conviction petition claiming that he had received
the ineffective assistance of counsel because his attorney, (―Counsel‖), allowed Ms.
Stackhouse to be present at meetings with Counsel and the Petitioner and because
Counsel failed to ―advise petitioner of his right to testify under the Sixth Amendment and
[did] not conduct a proper ‗Momon‘ hearing.‖ The post-conviction court appointed the
Petitioner an attorney and held a hearing. At the hearing, the post-conviction court
admitted the trial transcript into evidence.
The Petitioner testified that he was seventy-seven years old at the time of the post-
conviction hearing. He stated that, during Counsel‘s representation of him, he spent
approximately fifteen or twenty minutes alone with Counsel. All of the other interactions
with Counsel included the Petitioner‘s wife. The Petitioner stated that, at the time of
Counsel‘s representation, the Petitioner had been diagnosed with Alzheimer‘s,
Parkinson‘s, diabetes, and high blood pressure. The Petitioner took medications for his
illnesses but said that the medications did not affect his ability to communicate with other
people. At the time of the post-conviction hearing, the Petitioner still took the high blood
pressure medication, but he no longer took the medications prescribed for Alzheimer‘s
and Parkinson‘s because ―the prison [ ] took them away.‖ Despite not taking these
medications, he stated that he ―[a]bsolutely‖ remembered the events surrounding the trial
clearly.
The Petitioner testified that Counsel arranged for a mental evaluation of the
Petitioner in August 2009 at ―Lakeshore Medical Facility.‖ Counsel told the Petitioner
that, while at the facility, he should ―be lethargic and not answer the questions.‖ The
Petitioner stayed at the ―Lakeshore Medical Facility‖ for seven days during this
7
evaluation. As a result of the evaluation, it was determined that the Petitioner was
competent to stand trial. The Petitioner stated that Counsel never explained to him why
he was to be evaluated, and he only learned of the evaluation through his wife.
The Petitioner testified that he had three one-hour ―sessions‖ with Counsel, during
which his wife always accompanied him. The Petitioner recalled that, during these
sessions when Counsel would ask a question, the Petitioner‘s wife would answer for him,
preventing the Petitioner from answering the questions. He said this was the ―general
pattern‖ of communication throughout Counsel‘s representation. At trial, Counsel told
the Petitioner that he ―did not want [the Petitioner] to testify.‖ Counsel further instructed
the Petitioner to sit at the table ―completely lethargic, not look around, not talk about
anybody,‖ or express ―any enthusiasm, or sadness or remorse.‖ The Petitioner said that
he complied with Counsel‘s instruction to ―[j]ust sit there and be a vegetable.‖
The Petitioner testified that Counsel never discussed with him his Fifth
Amendment right not to testify. He explained that he was only told that he was not going
to testify. The Petitioner recalled being asked by the trial court at trial about whether he
understood his Fifth Amendment rights and that he answered in the affirmative. He
maintained, however, that Counsel did not discuss his Fifth Amendment rights with him.
The Petitioner testified that he did not commit the crime for which he was
charged. He said that his wife was sitting with him when he told Counsel about what had
actually occurred, and his wife had agreed with his ―story.‖ The Petitioner stated that he
wanted to testify because he ―had nothing to hide‖ and was innocent of the charged
offenses. He said that Counsel would not allow him to communicate with Counsel at all
during the trial.
The Petitioner testified that he did not meet with Counsel at all in the month
leading up to his trial because he was out of town. He explained that Counsel told his
wife to ―get out of sight, travel so that the DA could not subpoena her.‖ The Petitioner
said that he did not hear this directly from Counsel, but it was conveyed to him through
his wife who had spoken with Counsel. He stated, ―All communications went through
my wife.‖
The Petitioner testified that, after the first couple of meetings with Counsel, he felt
as though Counsel represented his wife‘s interests and not his. He explained that all
telephone conversations took place between Counsel and his wife. Further, he thought
that his wife‘s admission to ―an institution‖ and the fact that she was ―declared mentally
insane‖ should have been presented to the jury since the State relied on his wife‘s
statements to her therapist to convict him.
On cross-examination, the Petitioner confirmed that it was on only one occasion
where he met with Counsel outside the presence of his wife. He agreed that he never
8
requested that he meet with Counsel without his wife. The Petitioner stated that he told
Counsel that he would prefer that Counsel call him directly and not his wife. The
Petitioner maintained that he was unable to meet with Counsel to prepare for the trial
because he was ―out of town‖ as Counsel had instructed. He said that his wife told him
that they were to leave town to avoid a summons, but he agreed that his wife had already
received a summons by the time they left town. When asked why he did not choose to
remain home and prepare for trial, the Petitioner explained that he went with his wife
because she did not have much experience with driving their ―motor home.‖
Counsel testified that he had practiced law in Morristown, Tennessee, since 1977
and handled ―many‖ criminal cases during his career. Counsel stated that he often met
with the Petitioner and his wife together because the Petitioner‘s wife drove the
Petitioner. He stated that he met with the Petitioner alone on more than one occasion but
could not recall a specific number. The Petitioner was indicted in January 2008, and the
trial was held in July 2010. Counsel initially met with the Petitioner frequently, but,
following his investigation of the case, Counsel met with him every two to three months.
As the trial date approached, Counsel once again met more frequently with the Petitioner
in preparation for trial.
Counsel testified that he discussed potential defenses with the Petitioner and his
wife. Counsel recalled that the State had ―problems‖ with the specific time of the
offense. He realized this during his investigation of the case and filed a motion for a bill
of particulars and a motion to exclude evidence of other crimes. Ultimately, Counsel
decided to pursue an alibi defense using the receipts from campgrounds and hotels
indicating the Petitioner and his wife were in another State during the time of the alleged
offense.
Counsel testified that he did not believe the Petitioner testifying against his
granddaughter was a ―good option.‖ He, however, advised the Petitioner that he could
testify at trial and ―the ultimate choice‖ whether to testify or not was the Petitioner‘s.
Counsel noted some concern that the Petitioner was not always ―coherent‖ during their
meeting but agreed that the Petitioner was evaluated as competent to stand trial. Counsel
confirmed that he explained the purpose of the evaluation with the Petitioner before the
Petitioner went to Lakeshore Mental Health Institute for the evaluation. Counsel denied
telling the Petitioner how he should behave during the evaluation. He further denied
advising the Petitioner to leave town the week before the trial. He explained that the
Petitioner and his wife asked if they could travel to Maryland to see their son. He told
the couple that it was ―fine‖ but to be back in town by the trial date.
On cross-examination, Counsel testified that he often spoke with the Petitioner‘s
wife on the phone. He said that he would call the Petitioner‘s phone, talk to the
Petitioner, and then the Petitioner would hand the phone to his wife. As to Mrs.
Stackhouse‘s attendance during his meetings with the Petitioner, Counsel explained that
9
Mrs. Stackhouse drove the Petitioner because he was not to drive while taking his
prescribed medications. Counsel agreed that Mrs. Stackhouse ―talked a lot‖ during the
meetings. Counsel agreed that even though the Petitioner‘s evaluation indicated he was
competent to stand trial, Counsel still questioned the Petitioner‘s competence. Counsel
confirmed that he was aware that the Petitioner was taking medication for Parkinson‘s
disease and Alzheimer‘s.
The Petitioner testified on rebuttal that he drove ―all the time‖ during the years
leading up to his trial. He stated that all communication with Counsel about the trip
before trial and his mental evaluation was done through his wife. His wife would speak
with Counsel and then convey the information to the Petitioner. The Petitioner stated that
after fifty-one years of marriage, upon his conviction, his wife sought a divorce.
In a written order, the post-conviction court made the following findings:
The Court finds Petitioner is not credible when he alleged that
[Counsel] never prepared nor discussed a defense with him. The evidence
clearly shows that [Counsel] filed a Bill of Particulars to get the State to
commit to a certain event or time frame for the offense. Ms. Stackhouse
had receipts and tax records to establish an alibi defense that Petitioner and
his wife were out of state at the time the offense was alleged to have
occurred. The Court finds that Petitioner knew he had the right to testify
because [Counsel] testified they discussed attacking the credibility of the
victim, Petitioner‘s granddaughter. In addition, on page 89 of Exhibit 2
(trial transcript) [Counsel] asked Petitioner outside the presence of the jury:
―And I have told the Court you‘re not going to testify. And do you agree
with that?‖ The [Petitioner] answered; ―Yes‖. [sic] It is clear to the Court
that Petitioner made an unequivocal response and decision that he was not
testifying.
Petitioner alleged that [Counsel] told him to get out of town with his
wife before trial and to act nonresponsive at the mental evaluation and trial.
The proof clearly shows that Ms. Stackhouse told her husband how to act
and Petitioner followed her instructions. Petitioner cannot complain about
his conduct when he willingly acted a certain way to deceive everyone.
The Court finds that [Counsel] is a very experienced trial attorney.
[Counsel] was faced with a difficult case where a young girl testified how
her grandfather sexually abused her and Petitioner‘s wife walked in during
the sexual abuse and reported it to her psychiatrist, Dr. Keinath. [Counsel]
counseled with Petitioner, investigated the case, filed the appropriate
motions and did the best he could to represent Petitioner. Under the
guidelines of Baxter v. Rose, 523 S.W.932 (Tenn. 1975) and Strickland v.
10
Washington, 466 U.S. 668 (1984), the Court finds that Petitioner received
effective assistance of counsel by his attorney, [Counsel].
For the foregoing reasons, the Court finds that Petitioner failed to
carry the burden under Tennessee Code Annotated § 40-30-110(f) of
proving by clear and convincing evidence the alleged ground in his Petition
for Post-Conviction Relief.
It is from this judgment that the Petitioner appeals.
II. Analysis
The Petitioner asserts that he received the ineffective assistance of counsel
because Counsel ―failed to meet with [P]etitioner one on one.‖ He further asserts that
Counsel was ineffective for ―not allowing petitioner to testify‖ and for failing to advise
the Petitioner of his right to testify. The State asserts that the Petitioner has waived
review of his issues for failure to cite to the record in his argument and, in the alternative,
that the Petitioner has failed to show he is entitled to post-conviction relief.
Counsel risks waiver by failing to cite in his brief to the exact portion of the
original trial record where Counsel‘s alleged deficient conduct occurred. ―Failure to cite
to any relevant authority in support of his argument and his failure to cite to appropriate
references to the record constitutes waiver.‖ State v. Maurice Leonard, No. M2006–
00136-CCA-R3-CD, 2007 WL 957199, at *6 (Tenn. Crim. App., at Nashville, March 27,
2007) (citing Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b)). However, in the
interest of justice, we will address the Petitioner‘s argument.
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 (2012). 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) (2012). 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
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court‘s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court‘s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court‘s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.
11
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 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
12
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 evidence does not preponderate against the post-conviction court‘s findings.
The Petitioner attended meetings with Counsel with his wife, who drove him to the
meetings. The Petitioner admitted that he never told Counsel that he did not want his
wife present during these meetings. Counsel testified that, on some occasions, he met
with the Petitioner alone and when he would call the Petitioner‘s telephone, the Petitioner
would hand the phone to Ms. Stackhouse. Therefore, the Petitioner has not proven by
clear and convincing evidence that Counsel was ineffective in this respect.
As to the Petitioner‘s decision whether to testify at trial, Counsel testified that he
discussed the Petitioner‘s right to testify with him and the post-conviction court found
Counsel‘s testimony credible. Counsel stated that he did not think it best for the
Petitioner to testify against his granddaughter but that it was the Petitioner‘s decision
whether or not to testify. The record of the Momon hearing supports Counsel‘s testimony
and the post-conviction court‘s findings on this issue. Therefore, the evidence does not
preponderate against the post-conviction court‘s findings as to the Petitioner‘s decision
not to testify at trial.
It appears that the Petitioner also asserts that Counsel failed to ―conduct a proper
‗Momon‘ hearing.‖ This issue is not raised in the Petitioner‘s petition nor was it
addressed during the post-conviction hearing. Because has not been previously raised,
this Court will not now address it. See Cone v. State, 747 S.W.2d 353, 356 (Tenn. Crim.
App. 1987).
Accordingly, the Petitioner has failed to show by clear and convincing evidence
that Counsel was deficient and that the deficiency prejudiced the defense. The Petitioner
is not entitled to relief.
III. Conclusion
13
After a thorough review of the record and relevant authorities, we conclude that
the post-conviction court properly dismissed the Petitioner‘s petition for post-conviction
relief. Accordingly, we affirm the judgment of the post-conviction court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
14