William Darryn Busby v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 19, 2013
WILLIAM DARRYN BUSBY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Lewis County
No. 6650 R.E. Lee, Judge
No. M2012-00709-CCA-R3-PC Filed October 30, 2013
The Petitioner, William Darryn Busby, appeals the Lewis County Circuit Court’s denial of
post-conviction relief from his convictions for four counts of rape of a child. In this appeal,
the Petitioner argues that he was denied a full and fair hearing by the post-conviction court,
that he received ineffective assistance from both trial and appellate counsel, and that the
cumulative effect of these errors deprived him of a defense at trial and meaningful appeal.
Upon 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
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined. J EFFREY S. B IVINS, J., not participating.
John P. Cauley, Franklin, Tennessee (Post-Conviction); Hershell D. Koger, Pulaski,
Tennessee (on appeal); for the Defendant-Appellant, William Darryn Busby.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel,
Assistant Attorney General; Kim R. Helper, District Attorney General; and Derek K. Smith,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The facts of this case as summarized by this Court on direct appeal are as follows:
The victim in this case, C.T.,1 was ten years old at the time he testified. He
explained that, during the times in question, he was living with his mother, his
1
It is the policy of this Court to identify the minor victims of sex offenses by their initials.
baby brother, and the Defendant. The Defendant was his mother’s boyfriend.
The victim testified that the first time the Defendant touched him in a “bad”
way, he came out of his bedroom in the morning and found the Defendant in
the room next door, on the computer. The Defendant showed the victim some
pictures of naked women on the computer. The Defendant then asked the
victim if he “wanted to know how sex was”; the victim replied, “no.” The
Defendant pushed the victim into the victim’s bedroom, laid him on the bed,
pulled the victim’s underwear down, and licked the victim’s penis. The victim
stated that he tried to pull his underwear up, but the Defendant held them
down. The Defendant told C.T. that if he told anyone, the Defendant would
beat him. The victim testified that his mother was asleep during this incident.
C.T. testified that the Defendant had sexual contact with him a second time,
stating “he put my thing in his mouth, I think that’s what happened the second
time.” The victim stated a short time later, “he might’ve made me put my
mouth on his ... I’m not that sure.” The victim said that the Defendant
accomplished this by forcing him “with words.”
On a third occasion, C.T. and the Defendant were watching a movie together
on the couch in the living room. The victim stated, “He told me to put my
mouth on his thing and he pushed my head down like that right there.” The
victim testified that “he made me put my mouth on his thing again until that
stuff came out, and then when it came out, I spit it in the floor and then he told
me, ‘When you get out of the bathroom spitting it in the commode, to clean it
up off the floor.’ “ C.T. said he thought the color of the “stuff” was white.
On another occasion, the victim testified, the Defendant was yelling at
someone on the cellphone and the victim woke up. The Defendant then got off
the cell phone and again made C.T. put his mouth on the Defendant’s penis.
The victim thought this incident occurred in the living room.
On a fifth occasion, the victim testified, the Defendant had some clear lotion
in a tube with a screw-on top. The Defendant squirted some of this lotion “up”
the victim’s “bottom” and “put his thing in [the victim’s] bottom for about five
minutes.” This occurred while the victim was bent over his mother’s bed with
the Defendant standing behind him. After the Defendant put his penis in the
victim, the Defendant “moved back and forth.” The victim’s mother was at
work at the time. Afterward, the victim testified, he “had to go clean the lotion
of [sic] my bottom and [he] had to use the bathroom.”
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The victim did not tell anyone about these incidents until after his mother and
the Defendant had a big fight. He told his mother then “[b]ecause [he] knew
[the Defendant] was gone.” The victim had not told his mother before because
the Defendant had threatened to beat him.
C.T. stated that he was in the second grade when these incidents occurred.
[The victim’s mother] testified that the Defendant moved in with her and C.T.
in April of 2001 while she was pregnant. The Defendant left the residence in
July 2002. [The victim’s mother] stated that the Defendant was home alone
with C.T. on Sundays while she worked. She told the Defendant to leave after
they had a fight and he “slung” her and cussed her in front of C.T. The next
day, she testified, C.T. told her what the Defendant had done to him.
[The victim’s mother] stated that during a phone call she subsequently had
with the Defendant, he admitted to C.T.’s allegations. On a later date, [the
victim’s mother] again called the Defendant and recorded the phone call. In
spite of her efforts, the Defendant did not confess to the alleged crimes during
this phone call.
[The victim’s mother] acknowledged that C.T. had been assessed by school
personnel as being emotionally disturbed. She also explained that C .T. was
repeating the second grade when the Defendant’s crimes were allegedly committed.
Julie Elizabeth Rosof-Williams testified that she is a nurse practitioner with
Our Kids, an outpatient clinic affiliated with Metro General Hospital in
Nashville. She examined C.T. following his allegations. During the victim’s
visit, he stated that his mouth and bottom should be examined for germs. Ms.
Rosof-Williams examined C.T.’s genital area, his penis and his “bottom,” and
determined that they were all “normal.” On direct exam, she stated that “[i]t
is entirely possible that this child has been anally penetrated, orally penetrated,
without any sort of medical evidence, so this exam is consistent with the
history of penetration .” On cross-examination, she admitted that, “[b]ased on
the physical exam findings alone, I cannot tell you whether this child has been
sexually abused or not.”
....
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The Defendant testified and steadfastly denied the allegations levied against
him by C.T. He also denied having “slung” [the victim’s mother]. He denied
that he had ever admitted to [the victim’s mother] that he molested C.T.
During cross-examination, he admitted to having some pornographic
photographs on his computer at home.
State v. William Darryn Busby, No. M2004-00925-CCA-R3CD, 2005 WL 711904, at *1-4
(Tenn. Crim. App. Mar. 29, 2005), perm. app. denied (Tenn. Aug. 25, 2008).
On direct appeal, the Petitioner raised a single issue and argued “that the trial court
committed reversible error by failing to instruct the jury about the State’s election of offenses
and by failing to provide the jury with an appropriate unanimity instruction.” William Darryn
Busby, 2005 WL 71194, at * 4. After an extensive discussion, we concluded that the trial
erred when it failed to instruct the jury about the State’s election of offenses and its own
dismissal of Count 2 of the indictment. Because the prosecutor during closing argument
provided an effective substitute for the missing instruction we concluded that the error was
harmless. Id. at *5. The Petitioner did not file an application for permission to appeal to the
Tennessee Supreme Court.
A full recitation of the procedural history since the Petitioner’s direct appeal is
necessary to place the issues raised herein in context. On December 15, 2005, the Petitioner
filed a pro se petition for post-conviction relief and subsequently filed two pro se
amendments to that petition. In his petitions, the Petitioner alleged, among other things,
ineffective assistance of trial and appellate counsel, and sought a delayed appeal. The trial
court appointed counsel on January 4, 2006, and post-conviction hearings were held on May
31, 2007, and October 24, 2007. The post-conviction court granted the Petitioner a delayed
appeal and stayed the post-conviction proceedings pending the final disposition of the
delayed appeal. The Tennessee Supreme Court denied the Petitioner’s application for
permission to appeal on August 25, 2008. On December 1, 2008, the post-conviction court
entered its memorandum opinion denying the remainder of the Petitioner’s claims. The judge
who presided over each of the Petitioner’s above post-conviction matters, the Honorable
Robert E. Lee, is the same judge who denied the Petitioner relief in the instant appeal.
The Petitioner filed a timely notice of appeal, and on January 26, 2010, the
Petitioner’s post-conviction counsel filed a brief in this Court. On April 5, 2010, the
Petitioner filed a pro se motion seeking the withdrawal of his post-conviction counsel due
to a conflict of interest because the Petitioner was represented by the same attorney in the
delayed appeal and the subsequent post-conviction proceeding. On May 12, 2010, this Court
remanded the case to the post-conviction court for a new evidentiary hearing to determine
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whether the Petitioner waived the apparent conflict and stayed the appeal pending the
conclusion of the case on remand. Based on the Tennessee Supreme Court decision in
Frazier v. State, 303 S.W.3d 674 (Tenn. 2010), this Court ordered that, should the Petitioner
not waive the conflict, the trial court should permit the Petitioner to submit any amendments
to the petition and should consider all potential grounds for relief.2 An evidentiary hearing
was held on August 9, 2010, where it was determined that the Petitioner did not waive the
apparent conflict of interests and that he wished to proceed pro se. The trial court appointed
elbow counsel to the Petitioner and allowed him to proceed pro se.
Following the order from this Court, the Petitioner filed his third amended pro se
petition for post-conviction relief. A three-day post-conviction hearing was conducted,
during which the following witnesses testified: the Petitioner’s trial and appellate counsel;
Mike Moon of the Department of Children’s Services; Officer John Smith of the Lewis
County Sheriff’s Department; Larry Webb, a local barbershop owner; Tom Isabelle, the
defense investigator from the Petitioner’s trial; the mother of the victim; and several jurors
from his original trial.
Trial counsel testified that he attempted to present a number of defense theories to the
jury. When questioned further, he explained that his main theories were “it didn’t happen,
[the victim] was not credible, [and] the allegations took place outside of the parameters of
the Bill of Particulars.” Trial counsel testified that he used documents and the testimony of
the Petitioner to establish these defenses. Trial counsel testified that he decided not to call
Mr. Moon or Officer Smith, despite the fact that they could have been used to highlight
inconsistencies in the victim’s statements, because they both carried a great risk of presenting
very damaging testimony against the Petitioner.
Regarding Mr. Moon, trial counsel testified that while there were some
inconsistencies in Mr. Moon’s report regarding the allegations made by the victim, there
were many consistencies that would bolster the prosecution’s case like “the location, what
clothes he had on, how he described what happened.” Trial counsel further stated that he did
not call Mr. Moon because “I didn’t want [the jury] to hear one more syllable from any
witness’s voice that in any way related to [the Petitioner] in any way touching this young
man.” Trial counsel conceded that Officer Smith’s affidavit set out a tighter time line of the
alleged offenses than the Bill of Particulars. Trial counsel testified, however, that he
2
Initially, this Court limited the Petitioner’s amendments to “any cognizable grounds for relief
which may have arisen during the filing of the delayed Rule 11 application.” Upon a motion to reconsider
by the Petitioner, however, this Court revised the order to allow the Petitioner to amend his petition to
include “all potential grounds for relief,” in accordance with the Tennessee Supreme Court decision in
Frazier v. State, 303 S.W.3d 647 (Tenn. 2010).
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decided not to call Officer Smith because the negative testimony that Officer Smith would
likely offer during cross-examination “would have been more damaging to [the Petitioner]
than the benefit of getting the information about those parameters out.” He stated that he
based his decision on the fact that Officer Smith’s reports had numerous consistent
statements that could bolster the prosecution’s case, and asserted that he was concerned about
presenting the State with another witness to tell the jury about the victim’s allegations of
abuse.
Trial counsel also testified that he had no memory of discussing with the Petitioner
the possibility of calling as witnesses the grandfather of the victim, who was a general
sessions court judge, or Larry Webb, a local barber shop owner. Trial counsel recalled that
he introduced a note at trial from the victim’s grandfather that granted the Petitioner
permission to hunt on his property, and opined that the benefit of calling the victim’s
grandfather to testify about whether the victim and the Petitioner hunted on his property was
outweighed by the great risk of putting the grandfather of the victim on the stand. With
regard to Mr. Webb, trial counsel stated that he did not “have any recollection of the barber
issue being discussed and the barber shop not being open on Sunday.”
When questioned about his failure to call an expert witness, trial counsel testified that
he may have considered using one for voir dire purposes to gather statistical information
about whether the defense should seek a change of venue, but did not recall discussing the
use of an expert as a testifying witness.
Trial counsel testified that his decision to not seek a severance of offenses was
strategic, reasoning that “if you have cases where there are four or five counts and you feel
like the proof is very weak on one or two of those . . . sometimes that weakness bleeds over
into the cases that could be a little bit stronger.” He also testified that he suggested that the
whole preliminary hearing transcript be introduced into evidence to prevent the prosecution
from “pick[ing] out every question that was detrimental to [the Petitioner’s] case and positive
for [the State].” Trial counsel admitted that the transcript was used by the prosecution, but
insisted that it was also very helpful to the defense because he was able to use it to cross-
examine the victim. Trial counsel conceded that the phone call evidence was very damaging
to the Petitioner’s case, but testified that “I would rather [the jury] have read what was
written than listen to what was said [on the phone recording] in the jury room.”
During the direct examination of trial counsel, the Petitioner introduced into evidence
a letter to the Petitioner from trial counsel discussing a plea offer that had been made by the
State. The letter stated:
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This letter will further confirm that your trial date has been set for August 6th
and 7th in the Lewis County Circuit Court and that an offer has been made
(which I rejected on your behalf) for you to settle the case on attempted
aggravated sexual battery with you to serve one year of a three year sentence
and being placed on supervised probation.
Trial counsel asserted that this letter simply served as confirmation that he had rejected the
State’s plea offer as instructed by the Petitioner. Trial counsel adamantly rejected the notion
that he turned down the plea offer without discussing it with the Petitioner, and testified that
he vividly remembered “discussing that plea the day that the trial started and it was still on
the table and [the Petitioner] rejected it that day.”
On cross-examination, trial counsel testified that he believed the inconsistencies in the
victim’s statements to be trivial, and stated that he did not cross examine the victim too
harshly with these inconsistencies because “you don’t want to come across to the jury as
picking on the child . . . I think you lose some of your credibility as an attorney to the jury.”
He further reiterated his decision not to call Mr. Moon or Officer Smith, stating “I think the
advantage gained in pointing out the inconsistencies were outweighed by the potential
detriment that would be caused to the defense by either of those particular witnesses being
allowed to testify about consistent statements that [the victim] made.” In regard to the
change of venue issue and voir dire process, trial counsel testified that it was a “team-type
decision” to try the case in Lewis County and that jury selection process was also one made
by the “team.” Trial counsel testified that had the Petitioner indicated that he wanted to
strike a particular juror, “I would have gotten rid of them.” In regard to his theories of the
case, trial counsel testified that he felt like it would be a mistake to argue to the jury that
someone else was the perpetrator, “based on what I felt like [the victim] would say and what
[the victim] did say . . . that would have totally taken away from any credibility if I had any
with the jury.”
The Petitioner’s appellate counsel also testified. Appellate counsel opined that he
would have moved to sever the offenses at trial, but stated that “there are some occasions
I’ve seen where lawyers have thought tactically it was to the advantage not to severe.”
Appellate counsel also opined that he would have considered a change of venue but stated,
“I don’t know what the result of the consideration should be necessarily.” He stated that the
poor reputation of the victim’s mother in the community would be a factor weighing against
a change of venue. When questioned about the State’s statements during voir dire regarding
burden of proof and circumstantial evidence, appellate counsel stated, “I don’t see anything
wrong with that.” Similarly, appellate counsel stated that the State’s statement during closing
argument that the victim’s story remained consistent overtime was a proper argument for
closing statements because it was a reasonable inference from the evidence. Regarding his
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own performance, appellate counsel testified that he believed that he provided the Petitioner
with effective assistance of counsel even though he raised only one issue on appeal, and
stated “I stand by the decision I made when I wrote the brief.”
On cross-examination, appellate counsel explained that in determining what issues to
raise in a brief, he studies the record on appeal and picks out one or two strong issues. He
stated that he does not like to raise more than three issues because “I don’t like to shoot with
a shotgun . . . you’ve got to hit something hard on appeal.” He also testified that he sent the
Petitioner a copy of the brief, and the Petitioner never indicated that he had any objections
to the issues raised on appeal. When questioned about trial counsel’s performance at trial,
appellate counsel agreed that attorneys can differ as to strategy and that trial counsel’s failure
to seek severance of the offenses was not ineffective assistance of counsel. He also agreed
that in sex abuse cases, defense counsel usually seeks to exclude reports made by the
Department of Children’s Services and the police because it can be harmful to the defense.
Officer Smith of the Lewis County Sheriff’s Department and Mr. Moon of the
Department of Children Services also testified. Both witnesses conceded that there were
numerous inconsistencies in the victim’s statements about the rape allegations. Mr. Moon
testified that although there were some inconsistencies, he did not feel like these
inconsistencies “would have given us reason to feel like [the victim’s] statements weren’t
credible.” He explained that even with discrepancies in the time line, a child’s allegations
can still be true because children may perceive things differently. He stated that in this case,
he did not discredit the allegations made by the victim because “I think that’s the way he
remembered it,” and further explained that “I believe when a child has been traumatized
numerous times – and there’s been numerous incidents of things that have gone on that it’s
possible that they were confused.”
Tom Isabelle, a detective hired by the Petitioner, testified that he thought trial counsel
should have utilized his services more and should have followed up on his investigative
suggestions. He testified that he believed that trial counsel should have pursued an
alternative theory of the case, particularly the theory of other possible suspects as the
perpetrator, stating,“I think it’s entirely possible that this boy was telling the truth about what
happened, but simply had the wrong fella.”
On cross-examination, Mr. Isabelle conceded that he had no evidence to link another
suspect to the crime. He admitted that he only interviewed one other potential suspect, and
that he gathered no information to suggest that the individual was connected to the abuse.
He stated that he did not interview any other potential suspects due to time and money
constraints. When asked why he believed that his defense strategy was better than trial
counsel’s, Mr. Isabelle stated, “[Trial counsel]’s defense did not work.”
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Larry Webb testified that he owned a local barber shop in town. He stated that he
owned the barbershop during the years of 2000 to 2003, the time of the alleged events. He
also confirmed that his barber shop has never been open on Sundays.
The victim’s mother testified that she knew a couple of the jurors because “I’ve been
here all my life and everybody knows everybody.” When asked whether she told the victim
what to say during the trial, she stated, “I told [the victim] to tell the truth. I did not tell him
what to say.”
The Petitioner called several jurors to testify regarding their relationships with the
victim’s grandfather, a general sessions court judge, and whether there had been any outside
influence on the jury’s verdict. Juror Troy Walton testified that he was not influenced by the
general sessions court judge, and that he “thought [the victim] carried his self (sic) very well
[on the stand].” Juror Walton conceded that he received a note from his wife during
deliberations, but could not recall the contents of that note. Juror Billy Jackson testified that
he considered the general sessions court judge a friend, and that his daughter went to school
with the victim’s mother. He testified that he had no recollection of a note retrieved by Juror
Walton. Juror Johnny Owen testified that he knew of the general sessions court judge, but
stated “I have never spoken to him.” Juror Burt Moore testified that he also knew of the
general sessions court judge, stating “I knew him in general.” He further testified that he had
no knowledge of Juror Walton receiving a note during the trial. Juror Louie Halfacre
testified that he knew of the general sessions court judge because “he’s a lawyer in
Hohenwald.” He stated that he had no recollection of a note being received by anyone during
deliberations. The court asked Juror Halfacre whether there was any outside influence on
the jury deliberations, to which Juror Halfacre replied, “No.” Juror Christopher Dyer
testified that “everybody knows [the general sessions court judge] from way back,” but stated
that his only interaction with the general sessions court judge related to several speeding
tickets he received. When asked whether any political influence of the general sessions court
judge influenced the jury’s decision, Juror Dyer stated, “No, none whatsoever.”
Following the post-conviction hearings, the post-conviction court entered an order
denying the Petitioner relief. The post-conviction judge specifically held that neither trial
counsel nor appellate counsel provided the Petitioner with ineffective counsel. He noted that
both attorneys are very experienced and were well-prepared in the Petitioner’s case. He also
held that regardless of any alleged deficiencies, the Petitioner had failed to prove that either
counsel’s conduct resulted in prejudice to his defense. Thereafter, the Petitioner filed a
timely notice of appeal.
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ANALYSIS
On appeal, the Petitioner raises four issues for our consideration: (1) whether he was
denied a full and fair hearing, (2) whether he was denied effective assistance of trial counsel,
(3) whether he was denied effective assistance of appellate counsel, and (4) whether the
cumulative effects of counsel’s errors deprived the Petitioner of a meaningful defense. We
begin our review of these issues by acknowledging that post-conviction relief is only
warranted when a petitioner establishes that his or her conviction is void or voidable because
of an abridgement of a constitutional right. T.C.A. § 40-30-103 (2006). The Tennessee
Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal
unless the evidence preponderates otherwise. When reviewing factual issues,
the appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of their
testimony are matters for the trial court to resolve. The appellate court’s
review of a legal issue, or of a mixed question of law or fact such as a claim
of ineffective assistance of counsel, is de novo with no presumption of
correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
I. Full and Fair Hearing. The Petitioner first asserts that he was denied a full and
fair post-conviction hearing.3 Specifically, he alleges that the post-conviction court quashed
his subpoena for Judge Billy Townsend, the grandfather of the victim, which precluded him
from being able to present proof that trial counsel was ineffective for failing to call Judge
Townsend. He further asserts that the post-conviction judge abused his discretion in denying
the Petitioner’s motion to recuse himself, contending that the judge was biased against the
Petitioner’s case as evidenced by his abrupt tone throughout the hearing and his prior
decision denying the Petitioner relief in this case. The State responds that the post-conviction
3
As a separate issue in his brief, the Petitioner also alleges that the post-conviction court abused its
discretion by refusing to recuse itself; however, we address them collectively because this claim is essentially
a full and fair hearing claim.
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court did not abuse its discretion in quashing the subpoena for the general sessions judge or
in refusing to recuse itself. The State contends that the proposed testimony of the general
sessions judge was not relevant to the material issues in the case, and that the Petitioner has
failed to prove that post-conviction court abused its discretion in denying the motion to
recuse. Upon review, we agree with the State.
Due process requires that litigants be given the opportunity to be heard “at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976). In the post-conviction setting, the Tennessee Supreme Court has held that the “full
and fair hearing” requirement is satisfied where “a petitioner is given the opportunity to
present proof and argument on the petition for post-conviction relief.” House v. State, 911
S.W.2d 705, 714 (Tenn. 1995). While criminal defendants have the constitutional right
under both the federal and state constitution to compulsory process for obtaining witnesses
in their favor, see U.S. Const. amend. VI; Tenn. Const. art. I, § 9, this right is not unlimited.
State v. Smith, 639 S.W.2d 677, 680 (Tenn. Crim. App. 1982). It only extends to
“competent, material, and resident witnesses whose expected testimony will be admissible.”
Bacon v. State, 385 S.W.2d 107, 109 (1964) (citations omitted). Additionally, whether
evidence is relevant is a decision left to the discretion of the trial court, and this Court will
not will not overturn a trial court’s determination regarding relevancy without a showing that
the trial court abused its discretion. State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App.
1995).
In the present case, we conclude that the Petitioner was afforded a full and fair hearing
in accordance with the requirements of due process and the Post-Conviction Procedure Act.
Pursuant to this Court’s order, the post-conviction court allowed the Petitioner to raise any
potential grounds for relief on remand. He was permitted to proceed pro se, appointed elbow
counsel, and allowed to present evidence and argument for three days. Although the post-
conviction court quashed his subpoena for the general sessions judge, this Court will not
interfere with the post-conviction court’s decision absent a showing of abuse of discretion.
Id. The Petitioner’s stated purpose for calling the general sessions judge was to undermine
the credibility of the victim by contradicting his testimony that the Petitioner and the victim
had never been hunting together on the property of the general sessions judge. Under the
Tennessee Rules of Evidence, relevant evidence may be excluded if its probative value is
substantially outweighed by the needless presentation of cumulative evidence. Tenn. R.
Evid. 403. The post-conviction court granted subpoenas for Mike Moon of the Department
of Child Services and John Smith of the Lewis County Sheriff’s Office, both of whom
testified about the inconsistencies in the victim’s statements. Moreover, in contrast to the
testimony of both Mr. Moon and Officer Smith, the general session court judge’s proposed
testimony did not relate to the allegations of rape of the victim. Therefore, even if this
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testimony was relevant, the post-conviction court did not abuse its discretion in excluding
it due to its cumulative nature.
In addition, the post-conviction court judge did not abuse his discretion in failing to
recuse himself. The Tennessee Supreme Court has stated, “[w]hether a judge should recuse
herself or himself from a legal proceeding rests within the sound discretion of the judge.”
State v. Cannon, 254 S.W.3d 287, 307 (Tenn. 2008) (citations omitted). An objective test
is applied to determine if recusal is proper because the appearance of bias is just as injurious
to the integrity of the courts as actual bias. Id. Therefore, recusal is warranted (1) if a judge
has any doubt concerning his or her ability to preside over a case impartially or neutrally, or
(2) when a person of ordinary prudence in the judge’s position, knowing all of the facts
known to the judge, would find a reasonable basis for questioning the judge’s impartiality.
Id. However, adverse rulings are usually insufficient to establish bias. Alley v. State, 882
S.W.2d 810 (Tenn. Crim. App. 1994). This Court will not interfere with the trial court’s
decision on appeal unless the record clearly shows an abuse of discretion. Cannon, 254
S.W.3d at 307.
Here, the post-conviction judge was assigned to hear the Petitioner’s case on remand
from the Tennessee Supreme Court, “in the interest of efficient and orderly administration
of justice.” Subsequently, the judge was sworn under oath in accordance with Tennessee
Code Annotated section 17-2-120. The Petitioner filed a motion in opposition to the
appointment, which was denied by order after a hearing on the matter.4 The post-conviction
court’s order denying relief stated:
During the course of the hearing on August 4, [the Petitioner] admitted the real
reason he wanted this Judge to recuse himself was the fact, that this Court
already had ruled against [the Petitioner] on his original Petition for Post-
Conviction relief. As such, this Court finds [the Petitioner]’s Motion to
Recuse based upon his perception of undue influence by Judge Billy
Townsend to be nothing more than a pretext for removing this Judge and any
other Judge of this Judicial District. This Court has a duty to follow the
directions and orders from the Court of Criminal Appeals. The Court of
Criminal Appeals has directed this Court to provide [the Petitioner] a new
4
The transcript from the August 4th hearing was not included in the Record. In accordance with
Tennessee Rules of Appellate Procedure 24(b), the appellant bears the burden of preparing an adequate
record that conveys a fair, accurate, and complete account of what transpired in the trial court with respect
to the issues that form the basis of the appeal. See, e.g., State v. Richardson, 875 S.W.2d 671, 674 (Tenn.
Crim. App. 1993). In the absence of a complete record, this Court must presume the trial court’s decision
was supported by sufficient evidence. Id.
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hearing on his Post-Conviction Relief Petition. At the hearing, this Court has
already ruled that [the Petitioner] will be entitled to put on an entirely new case
and that it will only consider the proof that is introduced at the new hearing.
The Court notes that [the Petitioner] never raised the issue regarding Judge
Townsend’s undue influence at either the Jury Trial or the initial Post-
Conviction Relief hearing. He has only raised it since he became aware that
this Judge was appointed by the Supreme Court to hear his case.
Based on this record, the Petitioner has failed to demonstrate actual bias or the
appearance of partiality. The fact that the post-conviction judge denied the Petitioner relief
at the previous post-conviction hearing in this case does not impact his ability to preside over
the subsequent post-conviction hearing and does not prove an abuse of discretion. Likewise,
a thorough review of the post-conviction transcripts does not reveal bias or partiality by the
judge. He granted the Petitioner, who acted pro se, significant leeway in questioning
witnesses and introducing evidence. Furthermore, he explicitly stated during the post-
conviction hearings that he would base his decision on the evidence presented at this hearing,
and would not be influenced by his prior decision. The Petitioner has failed to show an abuse
of discretion or that he was denied a full and fair hearing. Therefore, he is not entitled to
relief on this issue.
II. Ineffective Assistance of Counsel. The Petitioner next asserts that he was denied
effective assistance of trial counsel. The Petitioner specifically alleges that trial counsel was
ineffective because he failed to (1) prepare and present a reasonable defense; (2) interview
potential witnesses; (3) act as a loyal and zealous advocate; (4) object to or attempt to correct
the State’s knowing use of false testimony; (5) call an expert witness; (6) seek a change of
venue; (7) seek a severance of the counts and allow a fatal variance at the close of the State’s
case-in-chief; (8) allow Petitioner the opportunity to reject a plea offer by the State; (9)
protect the Petitioner’s Confrontation Clause rights; and (10) seek to exclude the telephone
conversation recorded by Detective Barry Carrol. In response, the State contends that the
Petitioner has failed to prove that counsel’s performance was deficient and prejudicial, and
as such, the post-conviction court properly denied the Petitioner relief. We agree with the
State.
In Vaughn, the Tennessee Supreme Court repeated well-settled principles applicable
to claims of ineffective assistance of counsel:
The right of a person accused of a crime to representation by counsel
is guaranteed by both the Sixth Amendment to the United States Constitution
and articl I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
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encompasses the right to reasonably effective assistance, that is, within the
rage of competence demanded of attorneys in criminal cases.
Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).
In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
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).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).
We note that “[i]n evaluating an attorney’s performance, a 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.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Moreover, “[n]o
particular set of detailed rules for counsel’s conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89, 104
S. Ct. at 2065. The Tennessee Supreme Court has reiterated:
“Hindsight can always be utilized by those not in the fray so as to cast
doubt on trial tactics a lawyer has used. Trial counsel’s strategy will vary even
among the most skilled lawyers. When that judgment exercised turns out to
be wrong or even poorly advised, this fact alone cannot support a belated claim
of ineffective counsel.”
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting Robinson v. United States, 448 F.2d
1255 at 1256 (8th Cir. 1971)).
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(1) Failure to prepare and present reasonable defense. To support his ineffective
assistance of counsel claim, the Petitioner first asserts that trial counsel was ineffective for
failing to prepare and present a reasonable defense. He asserts that counsel failed to present
an alibi defense and should have presented other defense theories, specifically, a theory of
alternative suspects. In his brief, the Petitioner attempts to compare his case to State v.
Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991) where defense counsel’s failure to
present any evidence satisfied the Strickland standard for ineffective assistance of counsel.
In that case, defense counsel did not call any witnesses, advised the defendant not to testify,
and failed to put into evidence routine and favorable items, such as a 911 phone call made
by the defendant, to establish self-defense or allow the jury to consider a lesser degree of
homicide. This Court determined that the failures by defense counsel, taken together,
amounted to ineffective assistance of counsel, reasoning that the errors deprived the
defendant of a “meaningful defense.” Id. at 228.
Upon review of the record, we cannot agree that the Petitioner was deprived of a
meaningful defense. Indeed, counsel has a duty to investigate, conduct adequate legal
research, and determine what defenses can be developed so as to hold the State to its burden
of proof. See Baxter, 523 S.W.2d at 932-33. Decisions regarding proper preparation and
investigation are assessed for reasonableness; however, courts should apply “a heavy
measure of deference to counsel’s judgments.” State v. Burns, 6 S.W.2d 453, 562 (Tenn.
Crim. App. 1999) (quoting Strickland, 466 U.S. at 691).
Here, the post-conviction court concluded, and the record confirms, that the
Petitioner’s trial counsel was adequately prepared for trial and presented a reasonable
defense. The post-conviction court noted that trial counsel conducted extensive pre-trial
discovery, filed many pre-trial motions, and communicated with the Petitioner on at least
twenty occasions. Trial counsel testified that he attempted to establish several defense
theories, specifically that the alleged offenses did not happen and that the victim was not
credible. The mere fact that these defenses were unsuccessful does not satisfy the Strickland
standard.
The Petitioner asserts in particular that trial counsel should have presented a defense
theory of alternative suspects, relying on the testimony of his investigator, Tom Isabelle. Mr.
Isabelle testified that he believed that the victim could have simply “pointed to the wrong
[man],” and was very critical of trial counsel for not pursuing such a defense. During cross-
examination, Mr. Isabelle conceded that he had no evidence to link any other suspects to the
crime and only reasoned that his defense theory was better than the ones presented by trial
counsel because trial counsel’s “defense did not work.” On the other hand, trial counsel
testified that he believed it would be a mistake to argue alternative suspects to the jury based
on the evidence. The post-conviction court found Mr. Isabelle’s testimony to be unreliable
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and instead credited the testimony of trial counsel, which is a decision properly made by the
post-conviction court. See Vaughn, 202 S.W.3d at 115. We cannot conclude that the
evidence preponderates against the post-conviction court’s decision, and thus, we likewise
credit the testimony of trial counsel. Based on his testimony, the decisions regarding which
defenses to present to the jury was strategic based upon his preparation for the case. As such,
his decisions cannot be second-guessed using hindsight. Furthermore, given that the
Petitioner did not put forth any evidence to link another suspect to the crime, the Petitioner
has failed to prove the prejudice prong of Strickland by showing that there is a reasonable
probability that the outcome of his trial would have been different had the theory of
alternative suspects been presented.
(2) Failure to interview and call witnesses. The Petitioner is particularly critical of
trial counsel’s failure to call Mr. Moon, Officer Smith, and Larry Webb as witnesses during
his trial. The Petitioner asserts that these witnesses could have been used to undermine the
credibility of the victim by exposing inconsistencies in the victim’s testimony. To prevail
on an ineffective assistance of counsel claim based upon counsel’s failure to call a witness
at trial, the Petitioner must present that witness at the post-conviction hearing. Black v. State,
749 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The post-conviction court must then
determine whether that witness’s testimony “would have been (1) admissible, and (2)
material to the defense.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008). Even if the
testimony is admissible, trial counsel is not deficient for failing to call that witness if it would
not have “materially aided the petitioner’s defense.” Id.
Here, although the testimony was admissible, the Petitioner has failed to prove that
the testimony would have materially aided his defense such to support a claim of ineffective
assistance of counsel. During the post-conviction hearings, trial counsel testified that Mr.
Moon and Officer Smith could have been used to point out inconsistencies in the victim’s
statements; however, they carried a greater risk of presenting very damaging testimony
against the Petitioner. Indeed, during the post-conviction hearings Mr. Moon testified that
despite the inconsistencies, he believed the victim to be credible, noting that a child’s
perception of events is often distorted and may have discrepancies in the time line.
Moreover, calling either witness would open the door to allow the State to highlight the
consistencies in the victim’s allegations and rehash the details of the alleged rapes, which
greatly outweighed the benefit of the proffered testimony. Regarding Larry Webb, the owner
of a local barber shop, the Petitioner has likewise failed to prove that his testimony would
have materially aided his defense. Although Mr. Webb testified that his barber shop is not
open on Sundays, the Petitioner provided no evidence to prove that Ms. Townsend took the
victim to that particular barber shop during the time in question, such that it is reasonably
probable that his testimony would have resulted in a different outcome at trial.
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(3) Failure to act as a loyal and zealous advocate. The Petitioner next asserts that
trial counsel failed to act as a loyal and zealous advocate, pointing to trial counsel’s decision
to introduce into evidence the transcripts of the preliminary hearing and phone call with Ms.
Townsend. In Hellard v. State, 629 S.W.2d 4, 9-10 (Tenn. 1982), the Tennessee Supreme
Court stated that competent representation does not mean perfect representation, reasoning:
It cannot be said that incompetent representation has occurred merely because
other lawyers, judging from hindsight, could have made a better choice of
tactics . . . [W]e know that a criminal trial is a very dramatic, vibrant and tense
contest involving many variables and that counsel must make quick and
difficult decision respecting strategy and tactics which appear proper at the
time but which, later, may appear to others, or even to the trial lawyer himself,
to have been ill-considered.
Of course, uninformed decisions made because of inadequate preparation can support of
finding of ineffective assistance of counsel, but absent such a showing this Court will “not
sit to second guess strategic and tactical choices made by trial counsel.” Id. at 9 (citing
United States v. DeCoster, 487 F.2d 1197, 1201 (D.C. Cir. 1973)).
In the present case, the Petitioner relies on hindsight to attack the decisions made by
trial counsel. Trial counsel testified that the decision to introduce both transcripts into
evidence was strategic in nature, and that he based his decision upon his experience as a
defense attorney and the evidence presented at trial. He stated that he used the preliminary
hearing transcript to discover as much as possible about the victim’s testimony and to
effectively cross-examine the victim. He stated that he introduced it into evidence to prevent
the State from picking out only the testimony that was detrimental to the Petitioner’s case.
Regarding the phone call evidence, trial counsel testified that he believed it would be more
beneficial to have the jury read the transcript rather than listen to the recording itself. Both
of these decisions were strategic in nature, designed to reduce the impact of the State’s
evidence. Viewed in hindsight, these decisions may have been ill-considered; however,
based on the record, we cannot conclude that the decisions were uninformed due to a lack
of adequate preparation. They cannot support a claim of ineffective assistance of counsel.
(4) Failure to present expert testimony. Petitioner next asserts that trial counsel was
ineffective for failing to present expert testimony to rebut the testimony of the State’s expert
witness, Nurse Rosof-Williams, and to critique the interviewing techniques of Mr. Moon and
Officer Smith. A claim of ineffective assistance of counsel based upon a failure to present
evidence requires proof of what that evidence would have been. Brimmer v. State, 29
S.W.3d 497, 512 (Tenn. Crim. App. 1998) (citing Davis v. State, 912 S.W.2d 689, 698
(Tenn. 1995)). Neither the post-conviction court nor this Court, can speculate “as to what
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the [expert] evidence would have shown and . . . how it would have benefitted the
petitioner.” Brimmer, 29 S.W.3d at 512 (internal citations removed). We are mindful that
the Petitioner was not provided funds to hire an expert witness during the post-conviction
hearings, see Davis, 912 S.W.2d at 696-97 (holding that the state is not required to provide
expert assistance in non-capital post-conviction cases); however, the Petitioner must still
provide some evidence as to what testimony could have been presented and how it would
have aided his defense. See Brimmer, 29 S.W.3d at 512.
Here, no such evidence appears in the record. In rejecting the Petitioner’s claims, the
post-conviction court highlighted two significant points. First, it noted that the Petitioner put
forth no evidence of any expert who could have been used to rebut the State’s witness or
critique the techniques of Mr. Moon and Officer Smith. Additionally, the court noted that
Mr. Moon and Officer Smith did not testify in the case, and therefore, failure to present an
expert to critique their techniques was not prejudicial to the Petitioner’s case. We agree with
the post-conviction court’s reasoning. The Petitioner’s bare reference to a law review article
indicating the expert testimony is almost always helpful to the defense is not enough to
support a finding of ineffective assistance of counsel. Although the Petitioner was not
provided funds to hire an expert witness, the Petitioner should have presented some evidence
of what the testimony would have been and how it would have aided his defense. In the
absence of such evidence, relief cannot be granted.
(5) Failure to object to the use of false testimony. The Petitioner asserts that trial
counsel was ineffective for failing to object to instances of prosecutorial misconduct during
the trial. In support of this claim, the Petitioner points to the Prosecutor’s statement during
voir dire that the Petitioner had to do more than just testify “I didn’t do it” in order to supply
reasonable doubt. Next, he points to the Prosecutor’s reference during his closing argument
to the Petitioner’s apology during the phone call with the victim’s mother where the
Prosecutor stated, “I submit to you he’s sorry because he is apologizing for the confession
that he had given [the victim’s mother] about [the victim].” Finally, the Petitioner asserts
that the Prosecutor knowingly used false testimony by pointing to a number of
inconsistencies in the victim’s testimony.
When considering prosecutorial misconduct as a basis for ineffective counsel, the first
step in the analysis is a determination of whether prosecutorial misconduct occurred.
McCormick v. State, No. 03C01-9802-CR-00052, 1999 WL 394935, at *18 (Tenn. Crim.
App. June 17, 1999) (citing State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996)).
The Tennessee Supreme Court has noted that “[c]losing argument is a valuable privilege that
should not be unduly restricted.” State v. Stephenson, 195 S.W.3d 574, 603 (Tenn. 2006)
(citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). The trial court has substantial
discretion in controlling the course of arguments and will not be reversed unless there is an
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abuse of that discretion. Id. In addition, prosecutorial misconduct does not constitute
reversible error absent a showing that it has affected the outcome of the trial in a manner
prejudicial to the defendant. Id. (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)).
An attorney’s comments during closing argument “‘must be temperate, must be predicated
on evidence introduced during the trial of the case, and must be pertinent to the issues being
tried.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007) (quoting State v.
Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). However, in order to be entitled to relief on
appeal, the defendant must “show that the argument of the prosecutor was so inflammatory
or the conduct so improper that it affected the verdict to his detriment.” State v. Farmer, 927
S.W.2d 582, 591 (Tenn. Crim. App. 1996). After a finding of prejudicial misconduct, the
reviewing court must then determine whether the failure to object to the conduct deprived
the defendant of effective assistance of counsel. McCormick,1999 WL 394935, at *18
(citing Coker v State, 911 S.W.2 357, 371(Tenn. Crim. App. 1995), superseded on other
grounds by rule, Tenn. Sup. Ct. R. 28, § 3(B) as recognized in State v. West, 19 S.W.3d 753(Tenn. 2000)).
In the present case, we need not consider whether counsel was ineffective for failing
to object because the Petitioner has failed to prove that prosecutorial misconduct occurred.
The post-conviction court considered the comments made by the prosecutor during voir dire
and trial and determined that these comments did not amount to prosecutorial misconduct.
Specifically, the court determined that the prosecutor’s remarks during his closing argument
are properly construed as “argument” as the comment was a reasonable inference drawn from
the evidence. In fact, the court noted that the victim’s mother testified that the Petitioner
apologized to her for the acts that the Petitioner had done to the victim. The court also
determined that the comments made during voir dire were not improper. Based on a review
of the record, the evidence does not preponderate against these findings.
Likewise, the inconsistencies in the victim’s testimony do not give rise to a
prosecutorial misconduct claim. Although the state has an affirmative duty to correct false
testimony, State v. Spurlock, 874, S.W.2d 602, 617 (Tenn. Crim. App. 1993), this Court has
noted that “[i]nconsistencies in testimony do not always equate with perjury.” State v.
Elkins, No. E2001-01245-CCA-R3CD, 2002 WL 464799, at *7 (Tenn. Crim. App. Mar. 27,
2002). Indeed, “inconsistencies or inaccuracies may make the witness a less credible
witness, [but] the jury’s verdict will not be disturbed unless the inaccuracies or
inconsistencies are so improbable or unsatisfactory as to create a reasonable doubt of the
[petitioner]’s guilt.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999). In the
present case, we cannot conclude that the inconsistencies in the victim’s testimony rise to the
level of false testimony or that they create a reasonable doubt as to the Petitioner’s guilt. The
victim was cross-examined and the jury resolved the inconsistencies within his testimony
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with their verdict. As such, this claim cannot support a finding of ineffective assistance of
counsel.
(6) Failure to seek a change in venue. The Petitioner next asserts that trial counsel
was ineffective for failing to request a change in venue. The Petitioner argues that he was
unable to receive a fair trial before an impartial jury because of the great influence of Judge
Townsend due to his relationship with the victim and numerous jurors. The Petitioner asserts
in his brief that he urged trial counsel to seek a change of venue and was prejudiced by
counsel’s failure to do so.
A change in venue can be granted upon a showing of undue excitement or any other
cause that is likely to result in an unfair trial. See Tenn R. Crim. P. 21. However, the failure
to seek a change in venue will not establish ineffective assistance of counsel absent a
showing of prejudice. Adkins v. State, 911 S.W.2d. 334, 337 (Tenn. Crim. App. 1994).
Likewise, “allegations of ineffective assistance of counsel relating to matters of trial strategy
or tactics do not provide a basis for post-conviction relief.” Taylor v. State, 814 S.W.2d 374,
378 (Tenn. Crim. App. 1991).
Here, as noted by the post-conviction court, there were conflicting factors regarding
a change in venue. On the one hand, the victim is the grandson of a well-known, local
general sessions judge. On the other hand, and weighing against a change in venue, the
victim’s mother had a poor reputation, which would likely cut against her credibility.
Additionally, the consideration that the case may be moved to Williamson County, where
trial counsel believed there was a much higher rate of conviction for this type of offense than
in Lewis County, also weighed against a change in venue. Moreover, trial counsel testified
that the decision to not seek a change in venue was a “team decision,” made along with the
Petitioner after considering the various factors. Based upon these factors and the testimony
presented at the post-conviction hearing, the post-conviction court found this decision to be
a strategic. The evidence does not preponderate against the post-conviction court’s finding,
and as such, the Petitioner cannot attack “a sound, but unsuccessful, tactical decision made
during the course of the proceedings.” Adkins, 911 S.W.2d at 347 (citing State v. Martin,
627 S.W.2d 139, 142 (Tenn. Crim. Appl. 1981)). In any event, the Petitioner did not prove
that the failure to seek a change of venue was prejudicial to his defense because the
testimony of the jurors at the post-conviction hearing does not reveal any improper or
extraneous influence over the jury’s decision.
(7) Failure to seek a severance of the offenses. The Petitioner also asserts that trial
counsel was ineffective for failing to move for a severance of the offenses. Under Rule 14
of the Tennessee Rules of Criminal Procedure, a defendant is entitled to seek a severance of
offenses unless the offenses are part of a “common scheme or plan and the evidence of one
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would be admissible in the trial of others.” Tenn R. Crim. P. 14(b)(1). Nevertheless, within
the context of ineffective assistance of counsel, the Petitioner must prove that the decision
to not seek a severance of offenses fell outside of the range of competence demanded of
criminal attorneys. See, e.g., Carroll v. State, No. M2002-00797-CCA-R3-PC, 2003 WL
21653883 (Tenn. Crim. App. July 11, 2003), perm. app. denied (Tenn. December 29, 2003)
(rejecting petitioner’s claims of ineffective assistance of counsel for failure to seek a
severance of offenses because the evidence did not preponderate against the post-conviction
court’s finding that counsel’s decision was tactical); State v. Pottebaum, No. M2012-01573-
CCA-R3-PC, 2013 WL 3198132 (Tenn. Crim. App. June 21, 2013) (rejecting petitioner’s
claim of ineffective assistance of counsel for failure to seek a severance of the offenses
because it was a tactical decision, despite evidence that the motion likely would have been
granted, and noting “the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance.”).
The post-conviction court credited trial counsel’s decision as strategic based upon the
testimony presented at the post-conviction hearing, and the record supports this decision. The
post-conviction court concluded that trial counsel adequately prepared and investigated the
case, and filed many pretrial motions in this case based on that preparation. In support of his
decision, trial counsel testified that in his opinion, not severing offenses can be helpful to the
defense, especially if there is weakness in one or two of the offenses because that weakness
can “bleed into the other offenses.” The Petitioner relies heavily on the testimony of
appellate counsel who testified that he would have moved to sever the offenses; however,
appellate counsel also testified that reasonable defense attorneys could have differing
opinions about whether to sever in this case, and stated that he did not believe it to be
ineffective assistance of counsel to not seek a severance here. The Petitioner has failed to
prove that trial counsel’s decision regarding severance was not a sound tactical decision
based upon reasonable investigation.
(8) Failure to allow the Petitioner to consider a plea offer. The Petitioner asserts
that trial counsel was ineffective for failing to present the State’s plea offer to him before
rejecting the offer. To support his claim, the Petitioner introduced into evidence a letter from
trial counsel that confirmed “an offer has been made (which I rejected on your behalf) for
you to settle the case on attempted aggravated sexual battery with you to serve one year of
a three year sentence and being placed on supervised probation.” Trial counsel testified that
he discussed the plea offer with the Petitioner and rejected the plea offer only upon the
direction from the Petitioner. He stated that the letter served as a confirmation of those
events.
While failure to communicate a plea offer to a defendant certainly provides grounds
for ineffective assistance of counsel, see, e.g., Harris v. State, 875 S.W.2d 662, 665 (Tenn.
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1994), the Petitioner bears the burden of proving “factual allegations in the petition for post-
conviction relief by clear and convincing evidence.” Vaughn, 202 S.W.3d at 115 (citing
T.C.A. § 40-30-110(f)). Inconsistencies in the evidence are properly resolved by the post-
conviction court and will not be overturned absent a showing that the evidence preponderates
otherwise. Id.
Here, the post-conviction court credited trial counsel’s testimony that the letter only
served as a confirmation that the plea offer was communicated to the Petitioner and rejected
upon direction from the Petitioner. The Petitioner did not testify or offer any contradicting
evidence to establish that trial counsel did not present the plea offer to the Petitioner.
Consequently, the Petitioner has failed to satisfy his burden of proof on this matter. The
record does not preponderate against the post-conviction court’s finding.
(9) Failure to protect the Petitioner’s Confrontation Clause rights. The Petitioner
also claims that trial counsel was ineffective for failing to object to introduction of a report
made by Phyllis Thomson, a social worker at “Our Kids Center.” The report was introduced
through the testimony of Julie Elizabeth Rosof-Williams, a nurse clinician, and included in
the medical history and interview notes made by Ms. Thompson.5
A key aspect to ineffective assistance of counsel is proof that “counsel’s acts or
omissions were so serious that they fell below an objective standard of reasonableness under
prevailing professional norms.” Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). It is
crucial that a reviewing court evaluate counsel’s conduct from counsel’s perspective at the
time. Wilcoxson v. State, 22 S.W.3d 289, 303 (Tenn. Crim. App. 1999) (citing Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997)). As discussed, the petitioner bears the burden of
proof on an ineffective assistance of counsel claim, and failure to prove either prong of
Strickland is fatal to petitioner’s claim. Wilicoxson, 22 S.W.3d at 303.
In the present case, the Petitioner has failed to put forth sufficient evidence that trial
counsel’s conduct fell below an objective standard of reasonableness based on prevailing
norms at the time. As the post-conviction court noted, the report itself was admissible as an
exception to the hearsay rule, under Tennessee Rules of Evidence 803(4) and 803(6). We
need not determine whether admission of the report violated the Petitioner’s Confrontation
Clause rights because the cases upon which the Petitioner bases his claim of ineffective
assistance of counsel were decided after the Petitioner’s trial. Viewing trial counsel’s
conduct at the time of trial, we cannot say that his conduct fell below an objective standard
of reasonableness. Moreover, the post-conviction court concluded that neither Nurse Rosof-
5
The Report was not included in the Record. The information we have about the report we glean
from the post-conviction court’s decision.
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William’s testimony nor the report were very damaging to the Petitioner, as the report only
makes one reference to the Petitioner. As such, even if trial counsel’s conduct fell below an
objective standard of reasonableness, the Petitioner has failed to prove that this conduct was
prejudicial to his case.
(10) Failure to seek to exclude the telephone call evidence. Finally, the Petitioner
asserts that trial counsel was ineffective by not seeking to exclude the telephone conversation
between the Petitioner and the victim’s mother. The Petitioner alleges that the recording
violated his Fifth Amendment rights against self-incrimination and should have been
excluded. As such, Petitioner claims that trial counsel’s failure seek an exclusion of the
statements amounted to ineffective assistance of counsel.
The Fifth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, states that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” Similarly, the Tennessee Constitution states
“that in all criminal prosecutions, the accused . . . shall not be compelled to give evidence
against himself.” Tenn. Const. art. I, § 9. Under the Fifth Amendment, a confession is
involuntary when it is the result of coercive action on the part of the State. Colorado v.
Connelly, 479 U.S. 157, 163-64 (1986). “The test of voluntariness for confessions under
article I, § 9 of the Tennessee Constitution is broader and more protective of individual rights
than the test of voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450,
455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v.
Smith, 834 S.W.2d 915, 918-19 (Tenn. 1992)). In order for a confession to be considered
voluntary in Tennessee, it must not be the result of “‘any sort of threats or violence, . . . any
direct or implied promises, however slight, nor by the exertion of any improper influence.’”
State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000) (quoting Bram v. United States,
168 U.S. 532, 542-43 (1897)). In determining the voluntariness of a statement, the trial court
must look at the totality of the circumstances and decide if “‘the behavior of the state’s law
enforcement officials was such as to overbear petitioner’s will to resist and bring about
confessions not freely self-determined.’” State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980)
(quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)).
In the present case, the Petitioner was not in custody for purposes of Miranda, and
therefore, the failure to advise Petitioner of his rights under the Fifth Amendment did not
violate his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 478 (1966); State v.
Smith, 933 S.W.2d 450, 454 (Tenn. 1996). However, even where Miranda is inapplicable,
the statements cannot be the result of coercive state action. In order to prevail on his claim
of ineffective assistance of counsel, the Petitioner must put forth evidence to prove both that
Ms. Townsend was acting as a State agent and that his statements were the product of such
coercion that they constitute a violation of his Fifth Amendment rights. The Petitioner has
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failed to present such evidence, either in his petition or through testimony and presentation
of evidence during the post-conviction hearings. The Petitioner did not introduce the tape
recording of the phone conversation or a transcript of the recording into evidence during the
post-conviction hearing. Further, he did not elicit testimony from any witnesses regarding
the issue. As such, this Court cannot conclude that the confessions were a result of state
coercion. Consequently, the Petitioner has failed to prove that trial counsel’s failure to seek
exclusion of this evidence was deficient.
III. Ineffective Assistance of Appellate Counsel. The Petitioner asserts that
appellate counsel was ineffective for raising only one issue on direct appeal, effectively
waiving all other issues. The State responds that the decision to raise only one issue on
appeal was a matter of strategy not to be second guessed by hindsight, and in any event, the
Petitioner failed to prove that the omitted issues possessed any merit in order to prove that
counsel’s conduct was prejudicial to the defense. We agree with the State.
Ineffective assistance of appellate counsel is evaluated by applying the same
Strickland standard that applies to claims of ineffective assistance of trial counsel. Carpenter
v. State, 126 S.W.3d 879, 886 (Tenn. 2004). The Petitioner bears the burden to prove both
prongs of the Strickland test: (1) that counsel’s performance was deficient, and (2) the
deficient performance prejudiced the defense. Id. Appellate counsel is not constitutionally
required to raise every conceivable issue on appeal, and indeed, the seasoned advocates often
“emphasize[] the importance of winnowing out weaker arguments on appeal and focusing
on one central issue if possible, or at most a few key issues.” Cooper v. State, 849 S.W.2d
744, 747 (Tenn. 1993) (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). The
determination of which issues to present on appeal generally lies within the discretion of
appellate counsel and is afforded great deference upon review so long as it falls within the
range of competence required of attorneys. Carpenter, 126 S.W.3d at 886. Moreover, such
a decision is often most appropriately characterized as a strategic decision, which will not be
second-guessed with hindsight. Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995).
When an ineffective assistance of appellate counsel claim is based upon omission of
an issue on appeal, it is necessary to consider the merit of the issue. Carpenter, 126 S.W.3d
at 887. In Carpenter, the Tennessee Supreme Court adopted a non-exhaustive list of factors
used by the Sixth Circuit in evaluating counsel’s performance regarding the omission:
1) Were the omitted issues “significant and obvious”?
2) Was there arguably contrary authority on the omitted issues?
3) Were the omitted issues clearly stronger than those presented?
4) Were the omitted issues objected to at trial?
5) Were the trial court’s rulings subject to deference on appeal?
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6) Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
7) What was appellate counsel’s level of experience and expertise?
8) Did the petitioner and appellate counsel meet and go over possible issues?
9) Is there evidence that counsel reviewed the all the facts?
10) Were the omitted issues dealt with in other assignments of error?
11) Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Carpenter, 126 S.W.3d at 888 (citing Mopes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999)).
In the present case, the Petitioner asserts that appellate counsel should have raised all
of the issues raised in the motion for a new trial, which included sufficiency of the evidence,
admission of the Our Kid’s Center report, truthfulness of jurors during voir dire, influence
by Judge Townsend, improper contact between the jury and other persons, and election of
offenses. Although appellate counsel testified that he considered several of these issues, he
ultimately determined to raise just one issue on appeal, the election of offenses. He testified
he does not like to use the “shotgun approach” on appeal, and stated that he prefers to focus
the reviewing court’s attention on the strongest issue or issues.
Considering the factors outline above, we cannot conclude that appellate counsel’s
performance was deficient. Appellate counsel made the decision about which issue to raise
after reviewing the trial record and meeting with the Petitioner. He testified that the decision
to raise only one issue was strategic, and opined about the weakness of several of the other
issues initially considered. As noted by the post-conviction court, the issue raised by
appellate counsel was strong as evidenced by the discussion of the issue by this Court on
direct appeal. Appellate counsel sent the Petitioner a copy of the brief, and the Petitioner did
not object to appellate counsel’s approach, nor suggest any other issues that should have been
raised. Moreover, the Petitioner has failed to prove that the other issues he now claims
should have been raised would have been any more successful on appeal. The post-
conviction court determined that appellate counsel’s performance was not deficient, nor was
the Petitioner prejudiced by counsel’s decision to raise one issue on appeal. Upon review of
the record, the evidence does not preponderate against this conclusion. Therefore, the
Petitioner is not entitled to relief.
IV. Cumulative Effect. The final issue raised by the Petitioner is that the cumulative
effect of the errors raised on appeal rendered the trial unfair and deprived the Petitioner of
a meaningful defense. The State responds that the post-conviction court properly addressed
each individual error and stated its reasoning for denying relief in detail. The State contends
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that because the Petitioner has failed to prove any single error, he cannot prove that the
cumulative errors deprived him of a fair defense. We agree with the State.
The cumulative error doctrine recognizes that in some cases there may be multiple
errors committed during the trial proceedings, which standing alone constitute harmless
error; however, considered in the aggregate, these errors undermined the fairness of the trial
and require a reversal. State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). However, the
cumulative error doctrine properly applies only where there has been more than one actual
error. Id.; See also, Leonard v. State, No. M2006-0654-CCA-R3-PC, 2007 WL 1946662,
at *21 (Tenn. Crim. App. Sept. 13, 2007) (“[A] Petitioner who has failed to show that he
received constitutionally deficient representation on any single issue may not successfully
claim that his constitutional right to counsel was violated by the cumulative effect of such
counsel’s errors.”). Because the Petitioner has failed to prove deficient representation on any
issue, he cannot successfully claim that the cumulative effect of counsel’s performance
violated his constitutional rights. The Petitioner is not entitled to relief.
CONCLUSION
Based upon our review of the record, we affirm the decision of the post-conviction
court.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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