Lizandro Guevara v. State of Tennessee

05/06/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 10, 2021 Session
LIZANDRO GUEVARA v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2009-D-3488 Steve R. Dozier, Judge
No. M2020-00118-CCA-R3-PC
In 2011, a Davidson County jury convicted the Petitioner, Lizandro Guevara, of eight
counts of aggravated sexual battery and four counts of rape of a child, and the trial court
sentenced him to sixty-nine years of incarceration. The Petitioner appealed, and our
court affirmed the convictions. State v. Lizandro Guevara, No. M2015-01719-CCA-R3-
CD, 2016 WL 5266552 (Tenn. Crim. App., at Nashville, Sept. 21, 2016), perm. app.
denied. Subsequently, the Petitioner filed a petition for post-conviction relief, claiming
that he received the ineffective assistance of counsel, which the post-conviction court
denied after a hearing. The Petitioner appealed, and, after review, 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 JOHN EVERETT
WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
Jonathan W. Turner, Franklin, Tennessee, for the appellant, Lizandro Guevara.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; Jan Norman and J. Wesley
King, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Facts and Background
This case originates from the Petitioner’s sexual abuse of the minor victim, his
wife’s daughter, in the home they shared. Based on these events, a Davidson County
grand jury indicted the Petitioner for eight counts of aggravated sexual battery and four
counts of rape of a child.
A. Trial
This court summarized in its opinion the facts presented at trial:
A.C. was eleven years old at trial. [The Petitioner] was married to
A.C.’s mother [“Mother”]. Neither A.C. nor her younger brother was [the
Petitioner’s] biological child. She began living with [the Petitioner] when
she was approximately four or five years old. Eventually, Mother and [the
Petitioner] had a daughter together.
Mother and [the Petitioner] moved in together on April 15, 2005,
and they shared a house with other family members. A.C., her younger
brother, and her younger sister (once born) lived downstairs with Mother
and [the Petitioner]. [The Petitioner’s] sister, her three children, and her
husband lived upstairs. The upstairs and downstairs portions of the home
were separated.
A.C. recalled that the first instance of abuse occurred when she was
five years old while her mother was assisting her little brother in the
bathroom. [The Petitioner] called A.C. to him while he was sitting on “the
big sofa” in the living room. When A.C. went to [the Petitioner], he
touched her genital area with his hands on the outside of her clothes. [The
Petitioner] did not say anything to A.C., and no one else was in the living
room. [The Petitioner] stopped touching A.C. when her mother exited the
bathroom.
[The Petitioner] then began routinely molesting A.C. A.C. described
three different occasions on which [the Petitioner] touched her genital area
with his penis. One time in the living room, [the Petitioner] “used his
bottom private part, and he put it in [her] private part.” [The Petitioner]
touched her with his penis both inside and outside her clothes. One time in
A.C.’s bedroom, [the Petitioner] touched her genital area “inside [her]
clothes, on the skin with his penis.” One time in [the Petitioner’s]
bedroom, [the Petitioner] used his penis to touch the outside of A.C.’s
genital area “kind of both” inside and outside her clothes.
A.C. recalled these encounters happening more than twice in each
room. On all of these occasions, [the Petitioner] would initiate the contact
by touching A.C.’s breasts, buttocks, and genital area with his hands. Other
than the first time, A.C.’s mother would be at work when the incidents
occurred.
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When A.C. was six or seven, they moved to a different house. At
this residence, [the Petitioner’s] brother and his girlfriend lived with them,
as well as [the Petitioner’s] mother. A.C. testified that [the Petitioner]
touched her on numerous occasions in his bedroom. He would touch her
buttocks with his hands and “usually” would touch her genital area with his
penis. [The Petitioner] would touch her with his penis both on the outside
and inside of her clothes but “usually” the contact was on the outside of her
genitalia. However, the victim stated that, on more than one occasion, [the
Petitioner] penetrated the inside of her genitalia.
These encounters occurred less frequently than every day but more
than once a week. During the encounters, [the Petitioner] would ask A.C. if
what he was doing to her felt good. On occasion, [the Petitioner] ejaculated
onto A.C.’s genital area, and she would “go to the bathroom and wipe it
off.” Sometimes, [the Petitioner] would move A.C’s hand along his penis,
and sometimes A.C. touched his penis on her own.
A.C. and her family moved again in early 2009, and [the Petitioner]
continued the same behavior, but in that house, he would use his bedroom
and his brother’s bedroom. When they moved to this third location, [the
Petitioner] began making A.C. wear “skirts without shorts,” although she
also wore panties. [The Petitioner] touched A.C.’s genital area with his
penis underneath her clothing on more than one occasion in his brother’s
bedroom, but the victim was “not sure” if he ever penetrated her in that
room. Inside his own room, [the Petitioner] routinely touched A.C.’s
genital area with his hands and his penis underneath her clothing. At least
once, he penetrated her, but A.C. could not recall where they were in the
house.
At the second and third houses, [the Petitioner] also made A.C.
“suck his private part.” When this happened, A.C. would “usually taste
some nasty stuff” that came out of his penis. If [the Petitioner] tried to
make A.C. “suck it” and she did not want to, he would pull her hair. In
response to specific questioning, A.C. confirmed that [the Petitioner]
penetrated her with his penis and also penetrated her with his hand in his
bedroom at the second house. A.C. also confirmed that on more than one
occasion, [the Petitioner] put his private part “inside” her buttocks, but she
could not recall where that happened. A.C. said that there were occasions
when her younger brother walked into the room when she was in bed with
[the Petitioner]. A.C. remembered that her last encounter with [the
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Petitioner] was the same week that she disclosed the abuse.
When A.C. was eight or nine years old and in the third grade, she
saw a “play about a guy trying to touch a girl.” Afterward, she told a friend
what [the Petitioner] was doing to her, and the friend encouraged her to tell
the counselor at school. Pat Kellogg was the school counselor at A.C.’s
elementary school. She organized and attended the awareness presentation
in the school cafeteria and watched the reaction of the students after the
play. She noticed A.C. crying and approached her with one of the
actresses. A.C. “was just very shaken up, and she couldn’t really talk very
well.” The actress said that A.C. had some things to tell Ms. Kellogg, but
A.C. was “crying so hard . . . her body was shaking.”
A.C. went with her friend to tell the counselor, and “a whole bunch
of people came to the school and started asking [her] questions.” A.C.
explained that she waited to tell someone what was happening “because
[the Petitioner] made [her] momma happy, and . . . he was the father to
[her] sister.”
Ms. Kellogg took A.C. and the actress to the parent conference room
and attempted to calm A.C. Eventually, A.C. told Ms. Kellogg that “her
stepfather put his body parts in her body parts,” and Ms. Kellogg called the
Department of Children’s Services (DCS). The DCS representative arrived
shortly before the school’s dismissal time and informed Ms. Kellogg that
A.C. would have to be released to [the Petitioner]. Ms. Kellogg objected,
and the DCS representative explained that she would follow [the Petitioner]
and A.C. home to investigate. Ms. Kellogg described what followed, “I’ll
never forget . . . the look on her face in that car. It was just like she was, I
don’t know, like she was just in despair, like she had lost hope.”
Mother testified that [the Petitioner] worked part-time as a
construction laborer and would frequently be home with her children in the
afternoons while she was at work. At the second house, [the Petitioner’s]
brother and his girlfriend rarely interacted with A.C.’s family. The only
time they were in the same part of the house was when they used the
bathroom. Mother left her children in the care of [the Petitioner’s]
brother’s girlfriend on only one occasion, and no men were home during
that time.
Mother testified that after the investigation occurred, she confronted
[the Petitioner] about the incident while A.C. and her brother were present.
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Mother asked A.C., “Did he do that to you?” and she said, “Yes.” Mother
then asked A.C.’s brother, “Did he do that to your sister?” and he said,
“Yes.” When Mother questioned [the Petitioner], he “only put his head
down.” Mother understood [the Petitioner’s] response to mean “that
everything was true.”
Beverly Cotton, a pediatric nurse practitioner at a medical clinic that
specialized in medical forensic exams for children, testified as an expert in
pediatric nursing. Ms. Cotton performed a forensic examination of A.C.
and collected physical specimens with a “rape kit” on May 1, 2009. The
medical record reflected that A.C. appeared to be without distress. She
reported “some pain with urination,” which she said typically occurred if
she did not clean herself well. Ms. Cotton explained that A.C.’s reported
urinary pain was not indicative of sexual abuse because it may have existed
for other reasons. Ms. Cotton testified that A.C.’s genital exam was normal
with no signs of injury. Ms. Cotton explained that such results were typical
in child abuse cases, even in cases of reportedly long-term abuse.
The medical record also reflected that A.C. reported that her
stepfather touched her private part and pointed to her genital area. A.C.
said that she was touched more than one time and thought that the first time
it occurred was in 2006. Regarding the first time, A.C. explained that her
mother was in the bathroom when [the Petitioner] touched her genital area
with his private part. [The Petitioner] was “shaking” and asked, “Does it
feel good?”
A.C. volunteered that [the Petitioner] sometimes made her “lick that
private thing.” She also revealed that [the Petitioner] would pull her hair if
she did not want to “lick” him. A.C. said that “little slimy stuff” would
come out of [the Petitioner’s] private and sometimes she could feel it in her
private parts. A.C. said that [the Petitioner’s] conduct only hurt her “when
he rubs it in there a lot.” She denied experiencing any bleeding and said
that sometimes [the Petitioner] touched her inside and sometimes outside of
her private part. A.C. stated that [the Petitioner] also touched her breasts
with his hands. A.C. further reported that she was worried that a “test”
would not confirm that she was being truthful and that she was worried that
her mother would be mad at her.
A sperm sample was obtained from two inner labial swabs taken
from A.C. Forensic DNA analyst Barbara Leal performed DNA testing on
the sperm samples, which contained both epithelial cells and sperm cells.
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For the first swab, testing on the epithelial cells was inconclusive because
there was not enough DNA material. The sperm cells produced a partial
DNA profile that could not exclude [the Petitioner] as a contributor. Ms.
Leal explained that this result meant that the DNA in the sperm cells came
from a male in [the Petitioner’s] paternal lineage.
Ms. Leal then mixed the sperm samples of both swabs in an attempt
to obtain larger amounts of DNA material. The epithelial cells from the
mixed samples were again inconclusive. The sperm cells from the mixed
samples also produced a partial DNA profile that could not exclude [the
Petitioner] as a contributor.
[The Petitioner] testified in his defense. He denied touching A.C.
inappropriately. He also denied ever being alone with A.C. and her brother.
According to [the Petitioner], either Mother or her mother would be at
home when the children returned from school. [The Petitioner] confirmed
that one of his brothers lived with them at the second location and that a
different brother lived with them at the third location. However, [the
Petitioner] agreed that neither of his brothers had contact with A.C. [The
Petitioner] suggested that A.C. made up the allegations because the day
before she made the disclosure at school, he bought a video game for
A.C.’s brother but did not get anything for her, and she got upset. On
another occasion, A.C. became upset because [the Petitioner] did not buy
her a birthday cake.
Guevara, at *1-4.
B. Post-Conviction Proceedings
The Petitioner filed a pro se petition for post-conviction relief, which appointed
counsel later amended, alleging that he had received the ineffective assistance of counsel.
He contended that trial counsel (“Counsel”) was ineffective for failing to: (1) call certain
family members or co-workers as witnesses; (2) cross-examine a witness about his
statement to DCS; (3) employ a forensic expert in the field of child sexual abuse
allegations; and (4) adequately communicate with the Petitioner about the case.
The following evidence was presented at a hearing on the petition: The Petitioner
testified that he was tried in this case in July of 2011. The Petitioner testified that
Counsel did not meet with him once during the time the Petitioner was incarcerated
before trial and while he was out on bond. He stated that Counsel did not hire an
investigator and only communicated with the Petitioner at court hearings when he had an
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offer from the State to convey. The Petitioner also stated that Counsel did not
communicate with him via letters or phone calls.
The Petitioner testified that, at trial, Counsel did not put on additional witnesses,
other than the Petitioner himself, although the Petitioner wanted Counsel to talk to the
Petitioner’s family, particularly his brother-in-law, about what he had seen happening
during the time of the offenses. The Petitioner testified about other family members or
co-workers who he wanted to testify at trial on his behalf; several of those witnesses lived
with the Petitioner and the victim at various points. He stated that Counsel did not
explore what these witnesses knew and that, for example, his sister-in-law could have
testified that she would never have allowed this type of child sex abuse to occur in her
home.
As for a forensic child psychiatrist or other expert on child sex abuse allegations,
the Petitioner testified that he wished to present evidence refuting the victim’s credibility
with regard to her claims, but Counsel never explored that option. With regard to the
plea negotiations with the State, the Petitioner recalled receiving an offer to serve twenty-
five years, and a later offer of ten years. He rejected them both because he was innocent.
The Petitioner generally complained that Counsel did not do his job and did not represent
the Petitioner professionally.
On cross-examination, the Petitioner agreed that Counsel visited him one time in
jail, and he agreed that he received visits from another attorney working on his case. The
Petitioner remembered coming to court monthly and meeting with Counsel each time; he
stated, however, that Counsel “never” talked to him about his case. The Petitioner denied
being conveyed an offer of ten years of probation by the State, saying it was “fake.” The
Petitioner said he did not pay attention to what Counsel was telling him about the State’s
offers because he wanted to “fight the case.” The Petitioner recalled being told that there
was DNA evidence implicating him, because the DNA was from his paternal lineage, but
he said the results were always explained to him only as a possibility. The Petitioner
explained that he had not called the character witnesses to testify at his post-conviction
hearing.
Counsel testified that he was a criminal defense attorney practicing since 1984.
The Petitioner’s family approached Counsel’s law partner, a fluent Spanish speaker, to
represent the Petitioner. Counsel and his law partner met with the Petitioner together
while the Petitioner was in jail; Counsel’s partner sometimes visited the Petitioner alone.
Counsel testified that his file on the Petitioner’s case had been destroyed either in a flood
or for privacy. Counsel recalled discussing the facts of the case and potential defenses
with the Petitioner. He testified that he would have explained to the Petitioner his
possible sentencing exposure at trial, particularly because the worst-case scenario was the
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Petitioner receiving a sentence of hundreds of years. The Petitioner appeared to
understand, and they had extensive conversations, including discussing the victim’s
motive. Counsel recalled that, “amazingly,” the State offered the Petitioner a ten-year
probation sentence before the DNA evidence was sent off for analysis. Counsel said it
was “shocking” that the Petitioner would not accept the offer, so he asked the Petitioner
to sign a form acknowledging his refusal to accept. Counsel’s law partner witnessed the
Petitioner sign the acknowledgement.
Counsel testified that when the DNA results came back, the State’s case was
considerably strengthened. Based on the positive match to the Petitioner’s paternal
lineage, Counsel investigated where the Petitioner’s father and brother were during the
time period of the abuse. His recollection was that the brother was not around and the
father lived in another state. His conversations with the Petitioner about his male
relatives excluded their presence at the victim’s home and their possibility as suspects.
Counsel asked the Petitioner for the names of every adult in the household during the
abuse and Counsel interviewed them. The victim’s mother was determined not to be a
good defense witness. Counsel said that none of the witnesses he interviewed could
testify that the Petitioner had never been alone with the victim, nor could they account for
their whereabouts throughout the entire time period of abuse. As such, Counsel decided
that calling them as witnesses would have been futile, particularly because they could not
provide any alibis.
Counsel testified that he did not consider hiring a forensic expert because he did
not feel one was relevant or necessary, and the Petitioner never asked for one. Counsel
testified that he did not file a motion to suppress because there was no legal basis for the
same. As for a bill of particulars, Counsel could not recall if one was filed or if the State
made an election of offenses. As for the Petitioner’s decision to testify, Counsel stated
that the Petitioner had not been prepped to testify because the entire legal team and the
Petitioner all agreed he would not be a good witness. Counsel thought that it would be
very harmful for the Petitioner to offer his version of events, which was asserting in front
of the jury that the victim was seeking revenge for him not buying her a birthday cake.
Counsel did not know that the Petitioner would testify until moments before he took the
witness stand.
Following the hearing, the post-conviction court issued an order denying the
Petitioner relief. Relative to the Petitioner’s claim in this appeal, the post-conviction
court made the following findings:
First, the Petitioner contends that [Counsel] was deficient . . .
because he failed to call a number of witnesses as part of the defense proof.
. . . . The Court has not heard testimony from any of these proposed
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witnesses at the evidentiary hearing. While the Petitioner has made claims
about what the witnesses would have testified to, the Court cannot rely on
the Petitioner’s summaries of that proposed testimony to allow the Court to
evaluate the issue of prejudice. However, even if the Court were to accept
the Petitioner’s proffered summary of the proposed testimony as sufficient
to fairly raise this issue, the Court still would find that [Counsel] was not
deficient in his performance. [Counsel] testified that the defense team
interviewed everyone who has lived in the house with the Petitioner and the
victim during the time[]frame in which the offenses occurred. None of
those witnesses could say that the Petitioner and the victim were never
alone together, as the Petitioner has suggested. It was a reasonable tactical
decision for [Counsel] to believe calling a number of witnesses whose
testimony did not actually prove anything would not have been beneficial
to the Petitioner’s defense. Thus, the Court finds that [Counsel] was not
deficient for failing to call any of the named witnesses, and the Petitioner is
not entitled to relief on this ground.
Next, the Petitioner claims that [Counsel] was ineffective for failing
to employ a forensic psychologist or psychiatrist to testify as to the
credibility of the victim. Similar to the [first issue], the Petitioner has failed
to present any evidence at the instant hearing to show how such expert
testimony would have benefited his defense. Thus, the Petitioner is not
entitled to relief on this ground.
Next, the Petitioner claims that [Counsel] failed to adequately
communicate with him and prepare for trial. . . . . The Court respectfully
disagrees with the Petitioner’s contentions on this ground. While the
Petitioner testified on direct examination that neither [Counsel] nor [his
partner] came to visit him in jail while the case was pending, on cross-
examination, he admitted that he had at least two visits at the jail, in
addition to speaking to [Counsel] at his court dates. . . . . Further, to the
extent there is a discrepancy between the Petitioner’s testimony and
[Counsel’s] testimony regarding the degree to which they spoke about the
case and trial strategy, the Court accredits [Counsel’s] testimony. In
addition to speaking about potential offers, [Counsel] testified that he spoke
with the Petitioner about the nature of the charges against him and his
possible exposure. Further, once the DNA results came back, [Counsel]
asked the Petitioner about the possibility that another one of his male
relatives could have been an alternative suspect. While [Counsel]
acknowledged that they did not prepare the Petitioner to testify, [Counsel]
explained that was because the entire defense team, including the
9
Petitioner, had agreed during their trial preparations that the Petitioner
would not testify. The Court cannot fault [Counsel] for failing to prepare
the Petitioner to testify when the Petitioner changed his mind and decided
to testify moments before he took the stand. Thus, the Court finds that
[Counsel] was not deficient for failing to adequately communicate with the
Petitioner about the case.
Similarly, the Court finds that [Counsel] was not ineffective for
failing to mount a credible trial defense. [Counsel] testified that once the
DNA evidence came back indicating that the sperm found during the
medical legal examination was from either the Petitioner or another male
member of his father’s lineage, he focused his defense efforts on
identifying a possible alternative suspect from among the Petitioner’s male
family members. In addition to asking the Petitioner about his father and
brothers, [Counsel] testified that the defense team investigated whether they
could present any of the Petitioner’s family members as possible alternative
suspects. While the investigation ultimately revealed that none of the
Petitioner’s relatives were viable alternative suspects, in light of the
evidence in the case, the Court is of the opinion that this was a reasonable
tactical decision by [Counsel] well within the range of competence.
Further, the Court finds that it was a reasonable trial strategy for [Counsel]
to simply try to generate reasonable doubt through cross-examination of the
State’s witnesses, rather than calling the Petitioner to state that the victim
fabricated the claims because he did not buy her a birthday cake.
Accordingly, the Court finds that [Counsel] was not deficient in failing to
prepare a trial strategy.
The Petitioner also claims that [Counsel] was ineffective for failing
to file . . . a motion to request a bill of particulars, . . . . The Petitioner is
not entitled to relief on [this ground]. [T]he Court finds that the Petitioner
has failed to meet his burden of proving how he was prejudiced by
[Counsel’s] failure to see a bill of particulars.
Finally, the Petitioner argues that he is entitled to a new trial because
[Counsel] failed to ensure the trial court instructed the jury on a number of
lesser-included offenses. The Court finds that the Petitioner is not entitled
to relief on this ground. Contrary to the Petitioner’s assertion, the Court
instructed the jury on all of the lesser-included offenses that the Petitioner
has mentioned aside from child abuse. Further, the transcript reflects that
the State mentioned in passing the prospect of instructing the jury on the
lesser-included offense of child abuse, but neither the Court nor the parties
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pursued including that lesser-included offense. Even if the jury would have
been charged on the lesser-included offense of child abuse, the Petitioner
has failed to show establish how he was prejudiced by the instruction not
being included. The Petitioner’s defense, in light of his testimony,
appeared to be . . . that absolutely nothing occurred between he and the
victim. Accordingly, the Court finds the Petitioner was not prejudiced by
the absence of the charge of the lesser-included offense of child abuse.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition because he received the ineffective assistance of counsel. He contends
that Counsel was ineffective for: (1) failing to interview and call material witnesses; (2)
failing to communicate with the Petitioner to prepare a credible defense or strategy for
trial; and (3) failing to request a bill of particulars and a jury instruction on lesser-
included offenses. He claims that the cumulative effect of Counsel’s deficient
representation entitles him to a new trial. The State responds that the post-conviction
court properly denied relief to the Petitioner on his claims of ineffective assistance of
counsel, and that he is not entitled to relief on any of the claims in his post-conviction
petition. We agree with the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2018). 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) (2018). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against them. Fields v. State, 40 S.W.3d
450, 456-57 (Tenn. 2001). Upon review, this court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this court,
with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
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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); 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 Strickland, 466 U.S. at 688).
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 must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at
690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). 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 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
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based upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996)).
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).
A. Failure to Call Material Witnesses
The Petitioner claims that Counsel was ineffective for failing to call multiple
character witnesses, i.e., his relatives and friends, as well as a forensic expert on child
sexual abuse allegations.
Relative to this claim, the post-conviction court found that the Petitioner had failed
to meet his burden of proving prejudice because he did not present any of the proposed
witnesses at the post-conviction hearing and the post-conviction court therefore could not
review their proposed testimony and its impact.
The evidence does not preponderate against this finding. A petitioner is not
entitled to relief from his conviction on this ground unless he can produce a material
witness who (a) could have been found by a reasonable investigation and (b) would have
testified favorably in support of his defense if called. Otherwise, the petitioner fails to
establish the prejudice requirement mandated by Strickland. Black v. State, 794 S.W.2d
752, 757-58 (Tenn. Crim. App. 1990).
As we have noted, the Petitioner is responsible for presenting at the post-
conviction hearing the witnesses whose testimony he claims would have changed the
outcome of his trial. Black, 794 S.W.2d at 757-58. His failure to do so by rule dictates
that he falls short of proving the required standard of prejudice, id., and is therefore not
entitled to relief on this issue.
B. Failure to Communicate/Prepare for Trial
The Petitioner contends that Counsel was ineffective for failing to communicate
with him, failing to “mount a defense” for trial, and failing to prepare a strategy for trial.
The post-conviction court found, with regards to these claims:
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While the Petitioner testified on direct examination that neither
[Counsel] nor [his partner] came to visit him in jail while the case was
pending, on cross-examination, he admitted that he had at least two visits at
the jail, in addition to speaking to [Counsel] at his court dates. . . . .
Further, to the extent there is a discrepancy between the Petitioner’s
testimony and [Counsel’s] testimony regarding the degree to which they
spoke about the case and trial strategy, the Court accredits [Counsel’s]
testimony. In addition to speaking about potential offers, [Counsel]
testified that he spoke with the Petitioner about the nature of the charges
against him and his possible exposure. Further, once the DNA results came
back, [Counsel] asked the Petitioner about the possibility that another one
of his male relatives could have been an alternative suspect. While
[Counsel] acknowledged that they did not prepare the Petitioner to testify,
[Counsel] explained that was because the entire defense team, including the
Petitioner, had agreed during their trial preparations that the Petitioner
would not testify.
....
[Counsel] testified that once the DNA evidence came back
indicating that the sperm found during the medical legal examination was
from either the Petitioner or another male member of his father’s lineage,
he focused his defense efforts on identifying a possible alternative suspect
from among the Petitioner’s male family members. In addition to asking
the Petitioner about his father and brothers, [Counsel] testified that the
defense team investigated whether they could present any of the
Petitioner’s family members as possible alternative suspects. While the
investigation ultimately revealed that none of the Petitioner’s relatives were
viable alternative suspects, in light of the evidence in the case, the Court is
of the opinion that this was a reasonable tactical decision by [Counsel] well
within the range of competence. Further, the Court finds that it was a
reasonable trial strategy for [Counsel] to simply try to generate reasonable
doubt through cross-examination of the State’s witnesses, rather than
calling the Petitioner to state that the victim fabricated the claims because
he did not buy her a birthday cake.
The evidence does not preponderate against these findings. Counsel testified that
he and his law partner met with the Petitioner multiple times, in jail and at the
courthouse, and informed him specifically of his sentencing exposure at trial and his
options in light of the State’s various offers. In preparation for trial, Counsel attempted
to establish the Petitioner’s innocence by way of interviewing the others present in and
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around the victim’s family home, in the hopes of securing testimony that excluded the
possibility of the Petitioner being alone with the victim; that testimony was not available
from any potential witness. As the evidence mounted against the Petitioner, Counsel
went on to explore other possible DNA contributors who could be used to place
reasonable doubt in the jury’s mind of the Petitioner being the abuser. No one sharing
the Petitioner’s DNA had been around the victim and so the possibility of the Petitioner’s
relatives being guilty was no longer viable. All the while, Counsel fielded offers from
the State, including a very favorable one, which he presented to the Petitioner. This
representation falls within the “wide range of reasonable professional assistance” and is
entitled to deference on appeal. Accordingly, the Petitioner is not entitled to relief.
C. Failure to Request Bill of Particulars and Jury Instruction on Lesser-Included
Offense
The Petitioner claims that Counsel was ineffective for his failure to request both a
bill of particulars and a jury instruction on lesser-included offenses. The post-conviction
court found that the Petitioner had not demonstrated how he was prejudiced by Counsel’s
failure to request the bill of particulars. As for the complaint about the jury instruction,
the post-conviction court found that, in fact, the trial court had instructed the jury on the
applicable lesser-included offenses, save child abuse, which the post-conviction court
found was not applicable in light of the fact that the Petitioner claimed no contact at all
with the victim.
The evidence does not preponderate against the findings of the post-conviction
court. Counsel testified that he did not remember whether or not he had filed a motion
for a bill of particulars. The Petitioner did not present any evidence at the post-
conviction hearing on this issue. Without any evidence presented on which to judge this
claim, we agree that the Petitioner has not met his burden of proving prejudice, and
accordingly, he is not entitled to relief. We reach the same conclusion with regard to his
claim about lesser-included offenses in the jury instructions. Counsel was not questioned
about whether or not he requested certain lesser-included offenses, and the Petitioner did
not testify about this issue. The evidence does not preponderate against the finding that
the trial court properly instructed the jury with regard to certain lesser-included offenses
and, thus, Counsel was not ineffective for failing to make additional requests.
III. Conclusion
After a thorough review of the record and the applicable law, we conclude the
post-conviction court properly denied the Petitioner’s petition for post-conviction relief.
In accordance with the foregoing reasoning and authorities, we affirm the judgment of the
post-conviction court.
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ROBERT W. WEDEMEYER, JUDGE
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