Scott L. Bishop v. State of Tennessee

05/15/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 6, 2018
SCOTT L. BISHOP v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-16-71 Donald H. Allen, Judge
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No. W2017-00709-CCA-R3-PC
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The Petitioner, Scott L. Bishop, was convicted of four counts of aggravated sexual
battery and sentenced to serve eleven years in prison. The Petitioner filed a post-
conviction petition asserting that his trial counsel did not provide effective assistance, and
the post-conviction court denied the petition after a hearing. On appeal, the Petitioner
asserts that trial counsel was deficient in failing to present character witnesses, failing to
object to leading questions asked by the prosecutor, and preventing him from viewing the
victim’s recorded forensic interview. After a thorough review of the record, we conclude
that the Petitioner is not entitled to relief, and we affirm the post-conviction court’s
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.
George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant
District Public Defender, for the appellant, Scott L. Bishop.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Jody Pickens, District Attorney General; and Al Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Trial
At trial, the nine-year-old victim of the crimes testified that the Petitioner
“‘touched [her] privates,’” which she specified was the area between her legs, on four
consecutive nights in December 2011. State v. Scott L. Bishop, No. W2014-01540-CCA-
R3-CD, 2015 WL 6859780, at *1 (Tenn. Crim. App. Nov. 6, 2015), no perm. app. filed.
The Petitioner was in a romantic relationship with the victim’s mother, and he had been
living with the victim and her mother for a number of months. Id. The victim testified
that on the fourth night the Petitioner assaulted her, her mother walked into the room, and
the Petitioner then left the home. Id. at *2.
The victim’s mother confirmed that on December 15, 2011, the victim and the
Petitioner were lying under a blanket in the living room watching television, and when
the victim’s mother looked in the room, she “observed the Defendant jerk his arm away
from the area of [the victim]’s vagina ‘like he’d touched fire.’” Id. The victim’s mother
made the Petitioner leave the home but did not report the crimes. Id. The victim’s
grandmother took the Petitioner’s belongings to his work the next day without knowing
why the victim’s mother wanted him to move out. Id. The victim’s grandmother became
aware of the offenses shortly thereafter, but she did not report the crimes at the time she
became aware of them. Id. The offenses came to light when the victim’s mother sought
financial assistance with her bills due to the abrupt decline in income brought about by
the Petitioner’s departure from the home. Id. at *2-3. The victim’s grandmother revealed
the abuse to relief ministry personnel in frustration after the victim’s mother was told she
would probably be denied assistance. Id. The victim’s grandmother also testified that in
March 2012, she went to the place where the Petitioner was employed as a mechanic,
waited for him to get under her car, and then “‘stomped his privates.’” Id. at *3.
The Petitioner attempted to show that the victim had been coached to testify
against him. The victim acknowledged that she had practiced her testimony, but she
indicated that she meant only that she had spoken about the abuse with different people.
Id. at *2. The victim’s grandmother likewise acknowledged that she took the victim to
Mr. Jessee Whitnall, a teaching assistant at the victim’s school, and asked the victim to
tell him about the abuse. Id. at *3. Mr. Whitnall testified that the victim’s grandmother
told the victim to tell about the abuse as they had “‘rehearsed.’” Id. Mr. Whitnall said
that the victim’s grandmother then told him that the victim needed “‘to practice on
somebody else.’” Id.
The Petitioner testified at trial that he did not touch the victim inappropriately. Id.
at *4. He asserted that the victim’s mother was angry because the Petitioner was addicted
to pain medication and was spending his money on pills. Id. He did not know that he
was accused of touching the victim until March 2012, when he was interviewed by
police. Id. The Petitioner said that the victim and her mother came to his new residence
with some of his personal property approximately two weeks after he moved out. Id. He
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also testified that the victim’s grandmother came to his work in January 2012 in an
attempt to revive the relationship between the Petitioner and the victim’s mother and that
she did not come to his work in March. Id.
Mr. Kenneth Lilly, the Petitioner’s employer, testified that the victim’s
grandmother came to the Petitioner’s workplace in mid-December 2011 and in January
2012. Id. Mr. Lilly acknowledged that on one of those occasions, the victim’s
grandmother kicked the Petitioner. Id.
The jury convicted the Petitioner of four counts of aggravated sexual battery. The
Petitioner was represented by new counsel at sentencing, the motion for a new trial, and
on appeal. At sentencing, the victim’s grandmother described the adverse effects that the
abuse had on the victim. Id. Petitioner’s appellate counsel introduced the testimony of
numerous character witnesses:
Brad York of the Jackson Police Department testified that he had a
second job driving a truck one day a week. He had his truck serviced at the
Poplar Corner Exxon, where the Defendant worked. Officer York reported
that he visited the station “[a]t least once or twice a week” and that he had
known the Defendant for at least a year before the Defendant was
incarcerated. He described the Defendant as an honest, “great person” and
noted that, when the Defendant repaired his truck, he never had to take it
back to be repaired a second time.
Bobbie Bishop, the Defendant’s aunt, testified that the Defendant
had lived with her after he moved out of [the victim’s] mother’s house. She
stated that he was helpful around the house and appreciative of her family’s
support. She had never witnessed the Defendant behave violently and
stated that she was comfortable with the Defendant living in the home with
her adult daughter. She never witnessed him act inappropriately toward
children or adult women. She stated that the Defendant was welcome to
live with her when he was released.
Tiffany Nadig, the Defendant’s girlfriend, testified that the
Defendant was a caring and honest person. She reported that the Defendant
had informed her of the charges against him on their first date, but she
stated that she was not concerned about the Defendant being around her
three young children. She had never known the Defendant to do anything
“sexually depraved.”
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Mr. Lilly testified that he owned the Poplar Corner Exxon where the
Defendant was employed as a mechanic for approximately two years before
his incarceration on the instant charges. Mr. Lilly knew the Defendant
struggled with drugs, but he described the Defendant as a good employee.
The Defendant had good relationships with customers, and people would
request him to fix their cars. He never knew the Defendant to be violent or
noticed any sexually inappropriate behavior.
K.C. Lilly testified that he was Mr. Lilly’s son and that he often had
the Defendant repair his truck. He stated that the Defendant was a “good
guy,” was honest with customers, and did good work.
Nathan Bishop, the Defendant’s uncle, testified that he was aware
the Defendant struggled with pills and alcohol, although he had never seen
the Defendant under the influence. Prior to coming to live with Mr. Bishop
and his wife, the Defendant completed a voluntary, outpatient treatment
program. During the time the Defendant lived with Mr. Bishop, he helped
clear trees and mow lawns on their fifteen-acre property. Mr. Bishop
reported that he had never seen the Defendant behave in a violent manner
or exhibit inappropriate sexual behavior.
Kyle Dewberry, a customer at the Poplar Corner Exxon, testified
that the Defendant was his “personal mechanic.” He did not interact with
the Defendant outside of the garage, but he described the Defendant as a
friend because they would chat while Mr. Dewberry waited on his car. He
said he liked the Defendant and had never observed the Defendant behave
violently or in a way that may have been criminal or abnormal.
Mr. Whitnall testified that he had an “excellent” relationship with
the Defendant while the Defendant worked for him. He described the
Defendant as “a brutally honest and very helpful person.” He had never
seen the Defendant exhibit any violent behaviors. Mr. Whitnall stated that
he started working at [the victim’s] school after he retired and that he did
not notice anything unusual about the victim’s behavior in 2011-2012.
Id. at *4-5.
The trial court sentenced the Petitioner to serve eleven years for each conviction
and aligned the sentences concurrently. Id. at *6. The convictions and sentences were
affirmed on direct appeal. Id. at *1.
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Post-Conviction
The Petitioner filed a timely post-conviction petition alleging numerous grounds
for relief. On appeal, the Petitioner argues that counsel provided ineffective assistance by
failing to present character witnesses at trial, failing to object to leading questions, and
failing to develop a defense strategy by refusing to allow the Petitioner to view the
victim’s recorded forensic interview. We will accordingly limit our summary of the
proof at the hearing to these three grounds.
The Petitioner testified that he retained trial counsel after he was indicted. He met
with trial counsel approximately four times and reviewed discovery. The Petitioner
alleged that trial counsel failed to develop a strategy, and he elaborated that trial counsel
did not discuss with him what trial counsel would ask the witnesses. The Petitioner
testified that trial counsel failed to interview the witnesses listed on the indictment,
including the victim, her mother, and her grandmother. The Petitioner also asserted that
trial counsel did not interview Mr. Whitnall or Mr. Lilly, both of whom testified at trial,
and that trial counsel could have “had a better strategy” if he had interviewed the
witnesses. Trial counsel told the Petitioner that he could not call character witnesses at
trial but only at sentencing, and accordingly, none of the Petitioner’s character witnesses
were called at trial.
The Petitioner also asserted that trial counsel was deficient in failing to object to
leading questions which the prosecutor asked the nine-year-old victim. The Petitioner
alleged that trial counsel did not allow the Petitioner to see the victim’s recorded forensic
interview at the Child Advocacy Center. The Petitioner further stated that trial counsel
had told him that the Child Advocacy Center conducted a second interview with the
victim but that trial counsel was unable to obtain it. Trial counsel did not file a motion to
dismiss based on the loss or destruction of evidence related to this second interview.
Trial counsel testified that he was hired by the Petitioner after the preliminary
hearing and indictment. They met multiple times to discuss witnesses. Trial counsel
interviewed the Petitioner’s witnesses, including Mr. Whitnall and Mr. Lilly. He
attempted to contact the victim’s mother and grandmother, but they did not want to speak
to trial counsel and did not permit him to speak to the victim.
Trial counsel received a copy of the victim’s recorded interview and reviewed it.
He testified that, after listening to the Petitioner’s testimony, he recalled “some issue
regarding a second interview” but could not recall anything else. Trial counsel reviewed
the State’s file as part of discovery. He agreed that the second interview he discussed
with the Petitioner might have been an interview that the prosecutor conducted with the
victim, which was referenced in the State’s file.
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Trial counsel testified that the defense strategy was to assert that the victim’s
mother and grandmother had coached her to accuse the Petitioner because they were
angry about his addiction. Trial counsel introduced proof that the crime was initially not
reported by the victim’s mother or grandmother. The Petitioner asserted his innocence
and did not want to plead guilty to the charged offenses or any lesser offenses. Trial
counsel discussed the possibility of introducing character witnesses with the Petitioner,
but trial counsel felt they would not be helpful at trial. Instead, trial counsel introduced
the testimony of Mr. Whitnall that the victim was rehearsing her testimony and the
testimony of Mr. Lilly that the victim’s grandmother had assaulted the Petitioner.
The post-conviction court denied relief. The court generally stated that it credited
trial counsel’s testimony, and it found that there was only one recorded interview of the
victim. The post-conviction court found that trial counsel’s conduct was not deficient in
any respect and that the Petitioner had not demonstrated any prejudice from the alleged
errors.
ANALYSIS
On appeal, the Petitioner argues that trial counsel was deficient in three respects:
failing to introduce character witnesses, failing to object to leading questions, and
refusing to allow him to view the victim’s forensic interview.
Post-conviction relief is available when a conviction or sentence is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. The petitioner
bears the burden of proving the allegations of fact in the petition by clear and convincing
evidence. T.C.A. § 40-30-110(f). “‘Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v.
State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).
The findings of fact made by a post-conviction court are conclusive on appellate
review unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461,
465 (Tenn. 2010). “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).
Under the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance
of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). In order to establish that
he was denied his constitutional right to effective assistance of counsel, a petitioner must
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show both that counsel’s performance was deficient and that the deficient performance
caused prejudice to the defense. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim may be denied for
failure to establish either deficiency or prejudice, and the reviewing court need not
address both components if a petitioner has failed to establish one. Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996).
“Establishing deficient performance requires showing ‘that counsel’s
representation fell below an objective standard of reasonableness,’ which standard is
measured by ‘professional norms’ prevailing at the time of the representation.” Garcia v.
State, 425 S.W.3d 248, 256-57 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). As
long as counsel’s representation was “‘within the range of competence demanded of
attorneys in criminal cases,’” counsel will not be deemed to have performed deficiently.
Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975)). Deficient performance requires a showing of “‘errors so serious
that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Id. (quoting Strickland, 466 U.S. at 687).
The reviewing court should not second-guess strategic choices or measure
counsel’s performance by “‘20-20 hindsight.’” Id. at 277 (quoting Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)). In reviewing counsel’s professional decisions, a “‘fair
assessment … requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.’” Goad, 938 S.W.2d at 369
(quoting Strickland, 466 U.S. at 689). “‘[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.’” Felts, 354 S.W.3d at 277 (quoting Strickland, 466 U.S. at 690-91). The
failure of a particular strategy does not establish unreasonable representation. Cauthern
v. State, 145 S.W.3d 571, 600 (Tenn. Crim. App. 2004). “Deference to counsel’s tactical
choices, however, applies only if such choices are within the range of competence
required of attorneys in criminal cases.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn.
2004).
In determining prejudice, the reviewing court must decide if there is “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Calvert v. State, 342 S.W.3d 477, 486 (Tenn.
2011) (quoting Strickland, 466 U.S. at 694). A reasonable probability is “‘a probability
sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at
694).
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Although the Petitioner testified that trial counsel did not interview witnesses
before trial, trial counsel testified that he interviewed the Petitioner’s witnesses and that
he and the Petitioner discussed presenting character witnesses. Trial counsel testified that
he made a strategic decision not to call the character witnesses because he “didn’t feel
that they were helpful at the trial stage.” Appellate counsel presented eight character
witnesses on the Petitioner’s behalf at sentencing, including Mr. Whitnall and Mr. Lilly,
both of whom testified at trial. These witnesses generally described the Petitioner as
honest and as a good mechanic, and none of the witnesses had seen the Petitioner act
violently or inappropriately. Scott L. Bishop, 2015 WL 6859780, at *4-5. However, the
post-conviction court credited trial counsel’s testimony that he investigated the witnesses
and chose not to call them. Accordingly, the Petitioner has not demonstrated that trial
counsel performed deficiently. See Raymond Writer v. State, No. E2006-00770-CCA-
R3-PC, 2007 WL 763223, at *11 (Tenn. Crim. App. Mar. 14, 2007) (concluding that
decision not to use character witnesses was an informed and strategic one). Nor has the
Petitioner shown that testimony demonstrating that he was honest and skillful at his
profession would have resulted in a reasonable probability of the jury disbelieving the
victim’s testimony that he touched her inappropriately on four occasions and her
mother’s testimony that the Petitioner appeared to be touching the victim’s vaginal area.
He is not entitled to relief.
The Petitioner next contends that trial counsel performed deficiently when he
failed to object to leading questions. The Petitioner does not cite to any particular
question which he contends was improper, and he does not articulate how objecting to the
questions would have resulted in a reasonable probability of acquittal. At the hearing, the
Petitioner testified that the improper questions were ones calling for a “yes or no”
response from the victim. The fact that a question calls for a “yes or no” answer “is not
sufficient to make the question ‘leading.’” Mothershed v. State, 578 S.W.2d 96, 99
(Tenn. Crim. App. 1978) superseded by rule on other grounds as stated in State v.
Randall T. Beaty, No. M2014-00130-CCA-R3-CD, 2016 WL 3752968, at *20 (Tenn.
Crim. App. July 8, 2016), perm. app. granted (Tenn. Oct. 19, 2016). This court on direct
review concluded that no improper questions were asked because the prosecutor’s
questions were “in no way suggestive” and were necessary to develop the child victim’s
testimony. Scott L. Bishop, 2015 WL 6859780, at *11 (citing State v. Jonathan Ray
Swanner, No. E2010-00956-CCA-R3-CD, 2011 WL 5560637, at *6 (Tenn. Crim. App.
Nov. 14, 2011)). Accordingly, the Petitioner cannot demonstrate that trial counsel was
deficient in not objecting to the questions or that any objection would have resulted in the
reasonable probability of an acquittal.
The Petitioner next asserts that trial counsel was unable to formulate a defense
because trial counsel did not permit the Petitioner to view the victim’s forensic interview
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with the Child Advocacy Center. However, the Petitioner makes no specific allegation
regarding how viewing the victim’s interview would have affected his trial strategy.
Trial counsel testified that the victim’s trial testimony was consistent with her forensic
interview and that she made a very strong witness. Trial counsel also testified that he
thoroughly reviewed the victim’s forensic interview, and the post-conviction court made
a finding generally accrediting trial counsel’s testimony. Accordingly, the Petitioner has
not demonstrated any prejudice, and he is not entitled to relief.
CONCLUSION
Based on the foregoing, the Petitioner is not entitled to post-conviction relief, and
the judgment of the post-conviction court is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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