Tracy Looney v. State of Tennessee

02/15/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 11, 2018
TRACY LOONEY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Rutherford County
No. F-68273 Royce Taylor, Judge
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No. M2018-00214-CCA-R3-PC
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The petitioner, Tracy Looney, appeals the denial of his post-conviction petition, arguing
the post-conviction court erred in finding he received effective assistance of counsel at
trial. After our review of the record, briefs, and applicable law, we affirm the denial of
the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Judgment of the Circuit
Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.
Russell Nixon, Murfreesboro, Tennessee, for the appellant, Tracey Looney.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Jennings H. Jones, District Attorney General; and Hugh
Ammerman, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On direct appeal, this Court summarized the facts surrounding the petitioner’s
convictions of rape of a child, felony child abuse, and misdemeanor child abuse and
sentences, as follows:
This case arises from the petitioner’s interactions with his wife’s children. State v.
Mark Tracy Looney, No. M2014-01168-CCA-R3-CD, 2016 WL 1399344 (Tenn. Crim.
App. Apr. 7, 2016), perm. app. denied (Tenn. Aug. 18, 2016). The [petitioner’s] wife
had three children from a previous marriage, J.H., T.H., and A.H. Id. at *1. Together the
petitioner and his wife had a child, J.L. Id. Pursuant to a parenting plan, J.H., T.H., and
A.H. stayed with their mother at the residence she shared with the petitioner (“the Looney
residence”). Id. It was during the petitioner’s wife’s parenting time with her children
that the petitioner’s alleged physical abuse of J.H. and T.H. and sexual abuse of A.H.
occurred. Id.
J.H., who was eleven years old at the time of trial and in the fifth grade, testified
regarding physical abuse by the petitioner. Id.at *2. He testified that during one incident,
the petitioner “raised him [up] by the neck,” and when the petitioner finally released him
J.H. hit his head hard against the wall. Id. J.H. stated he still has neck pain to this day
based on that incident. Id.
J.H. recalled another occasion when the petitioner’s wife, T.H., and he were
“watching” J.L. while the petitioner cooked breakfast. Id. J.L. was in his playpen but
“somehow” got out and fell onto a toy truck. Id. J.H. said that the petitioner was not
angry with his wife but rather he became angry at J.H. and T.H. Id. J.H. said that the
petitioner kicked him in his stomach before J.H. fled to the bathroom and that the
petitioner kicked and “threw” T.H., who “fell into the kitchen into the microwave and
cabinets.” Id.
J.H. also testified about “going mushrooming” with the petitioner. Id. at *3. He
explained that he would go with the petitioner into the woods across the street or to
another wooded area near “someone’s” house to look for mushrooms. Id. J.H. did not
know ultimately what became of the mushrooms they picked, but he said that the
petitioner would take the mushrooms “to someone’s house.” Id. J.H. recalled on one
occasion when the petitioner took only A.H. to look for mushrooms. Id. J.H. said that he
was “very worried” and “afraid [A.H.] might like get those spiky vines prickle her” or
that she might get scratched on her face by twigs. Id. J.H. said that the petitioner and
A.H. were gone for a long time and “everyone” got worried. Id. At some point
“Mamaw” drove the petitioner’s wife, J.H., and T.H. to the area where the petitioner and
A.H. were supposed to be looking for mushrooms. Id. J.H. and T.H. went a short way
into the woods and unsuccessfully called out for the petitioner and A.H. Id. J.H. said
that when the petitioner and A.H. did finally return, A.H.’s legs were “prickled by the
thorny vines.” Id.
T.H. testified that he was nine years old at the time of trial but had been seven
years old during spring break of 2012. Id. T.H. also testified regarding several instances
of abuse including the time the petitioner hit him with a spatula. Id.
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Caroline Patterson, a nurse practitioner, testified as an expert witness in the field
of child sexual abuse. Id. at *4. Ms. Patterson testified that initially a social worker met
with A.H. to ask about health issues. Id. A.H. disclosed that the petitioner “‘put his
private area on my private area’” multiple times until “white stuff came out.” Id. In
addition to penile penetration, A.H. also described oral penetration, so Ms. Patterson
tested A.H.’s throat for possible infection. Id. As to the penile penetration A.H. said that
“‘it hurted, but no bleeding,’” which, according to Ms. Patterson, increased the likelihood
of injury having occurred. Id. A.H. reported that this activity occurred when no one else
was around and “‘under the covers.’” Id.
A.H. testified that she was seven years old and in the first grade. Id. A.H.
identified a photograph of the petitioner’s living room and pointed out the green chair
where the petitioner “forced” his “private area” in her “private area.” Id. A.H. said that
she was sitting in the petitioner’s lap at the time and “it hurt in [her] private area.” Id.
A.H. confirmed that she remembered talking to “another Ms. Nelson” about “what the
[petitioner] did to her.” Id. She stated that she told Ms. Nelson about the incident in the
living room where the petitioner put his penis inside her vagina and about another
incident in the bedroom. Id. About this other incident that occurred in the petitioner’s
bedroom, A.H. said “he forced me to pull my pants down so he could put his private area
into mine.” Id. A.H. described the petitioner’s penis as “peach” or skin-colored and said
that the petitioner instructed her to lie down on his bed. Id.
A.H. could not recall her age at the time of these incidents but said that it was
before she began attending school. Id. A.H. believed the incident in the bedroom
occurred during summer and that the incident that occurred on the green chair in the
living room occurred during spring break. Id. A.H. recalled that she and her brothers
stayed at the Looney residence for the entire week of spring break. Id. A.H. said that the
petitioner told her not to tell anyone about these incidents or he would be unable to see
her again. Id. A.H. said that she told the petitioner, “Okay,” but she told her father and
step-mother anyway because “it hurt,” and she did not want it to happen [] again. Id.
When asked if she liked the petitioner, A.H. responded, “It depends.” Id. She
stated that she did not “like it when he did the [private area] stuff that he did.” Id. A.H.
recalled another incident when she and the petitioner were in “[the] back room,” and the
petitioner put his “private area” into her mouth. Id. She said, “He took it out and white
stuff came out.” Id. She said that the petitioner took an item of clothing and “wiped it
up.” Id. A.H. said that the petitioner also put his penis in her mouth in the living room of
the residence. Id.
A.H. testified about an incident that occurred during summer break when she and
the petitioner went mushroom hunting together. Id. A.H. confirmed that this was the
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only time she had gone mushroom hunting and that only she and the petitioner went
mushroom hunting that day. Id. A.H. stated that she could not recall anything that had
occurred between her and the petitioner while mushroom hunting. Id. She agreed that it
had been a long time since she had talked about “these things” and that it would be
helpful for her to watch the recording of the interview of her statements about her
interactions with the petitioner. Id. The defense objected to the State showing A.H. the
recording to refresh her recollection. Id. The State decided to proceed with testimony
and not play the recording for A.H. at that time. Id. A.H. maintained that she and the
petitioner only hunted for mushrooms and nothing else occurred between the two while
hunting for mushrooms. Id.
Father testified that he contacted DCS about the allegations of sexual abuse and
agreed that he had contacted DCS before in regard to incidents involving inappropriate
touching by A.H.’s maternal grandmother and the petitioner. Id. at *7. Father said that
the maternal grandmother had “reached in [A.H.]’s pants and wiped her down there in a
hallway at church.” Id. He said this behavior was “odd” and made A.H. uncomfortable,
so he made a complaint through DCS. Id. As to the prior reported inappropriate contact
with the petitioner, A.H. had disclosed that the petitioner “had laid her down up on the
washing machine and was looking at her down there with a flashlight because she was
complaining of burning down there.” Id.
LaToya Nelson, a fifth-grade teacher at the time of trial, testified that she had
previously worked for the Child Advocacy Center as a forensic interviewer in child sex
abuse cases. Id. at *8. Ms. Nelson said that DCS referred A.H. to the Child Advocacy
Center for an interview and that she met with A.H. on April 30, 2012. Id. Ms. Nelson
said that Father accompanied A.H. to the interview but remained in the lobby area while
she spoke with A.H. Id. She explained that there was a closed circuit “observation
room” where law enforcement or DCS employees could watch an interview in progress.
Id. During A.H.’s interview DCS employee Kevin Smith was present in the observation
room. Id.
On cross-examination, Ms. Nelson stated that she had spoken with A.H. on a
previous occasion, May 27, 2011. Id. When asked if that interview was recorded, she
responded, “All of our interviews are recorded.” Id.
The petitioner’s wife testified that she learned about the incidents alleged in this
case through Stepmother. Id. She stated that she did not have a good relationship with
Stepmother but that she believed that Stepmother took good care of J.H., T.H., and A.H.
Id. According to the petitioner’s wife, Stepmother called her residence, spoke with her
initially, and then asked to speak with the petitioner. Id. The petitioner’s wife could not
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recall when Stepmother called the house but said it was “[q]uite a while” after the
children had stayed with her during spring break. Id.
The petitioner’s wife testified that the petitioner drove her to the Sheriff’s
Department where they met with Detective McCallum in her office. Id. The petitioner’s
wife said that she and the petitioner met with Detective McCallum on two different
occasions. Id. During the first meeting, they spoke with the detective about J.H. and
T.H. Id. The petitioner’s wife said they discussed an incident during which the petitioner
“went back to the back bedroom.” Id. The petitioner’s wife said that she was either in
the living room or her bedroom at the time of the incident and could not see or hear what
occurred in the back bedroom. Id.
The petitioner’s wife testified that the children would often sit in the petitioner’s
lap while sitting in the living room and that A.H. called the petitioner, “Daddy.” Id. at
*9. The petitioner’s wife explained that there were two beds in the bedroom she shared
with the petitioner. Id. She slept in one, and the petitioner slept in the other. Id. When
A.H. would stay with them, however, A.H. slept in the petitioner’s bed, and the petitioner
would sleep in the bed with the petitioner’s wife. Id. The petitioner’s wife recalled an
incident when J.H. and T.H. had gone to pick blackberries with the petitioner. Id. When
they returned, the petitioner took A.H. out to pick blackberries, not mushrooms, because
she felt “left out.” Id. When asked if the petitioner returned with blackberries, she stated,
“No. I don’t know.” Id. The petitioner’s wife said that, while the petitioner took A.H. to
pick blackberries, she stayed home with the three boys. Id. At some point she went out
in the backyard and called out for the petitioner and A.H. but received no response. Id.
She said that the petitioner had taken A.H. to pick blackberries on their neighbor’s
property. Id.
The petitioner’s wife testified that she thought the second meeting with Detective
McCallum was “like the next day.” Id. She said that she and the petitioner never spoke
about the allegations or why they were going to the Sheriff’s Department. Id. During
this second meeting, Detective McCallum told them about the allegations involving A.H.
Id. The petitioner’s wife said that the petitioner took with him a pair of shorts when they
met with Detective McCallum the second time, but she was unaware of why he brought
the shorts. Id.
Outside the presence of the jury, the State played portions of the recorded
interviews with Detective McCallum. Id. The petitioner’s wife confirmed that it was her
voice on the recording. Id. The State resumed questioning the petitioner’s wife about her
statements to Detective McCallum. Id. The petitioner’s wife stated that she recalled
telling Detective McCallum that she had some “concerns” or “suspicions” about A.H. and
the petitioner. Id. She said that her suspicions were based on the fact that A.H. liked to
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sit on the petitioner’s lap. Id. When asked if the petitioner liked for A.H. to sit on his
lap, the petitioner’s wife said, “He didn’t mind. All of the kids sat in his lap.” Id. Even
though all of the children sat on the petitioner’s lap, the petitioner’s wife said that she
spoke with the petitioner about her concerns but could not recall whether it was before or
after the couple met with Detective McCallum.
The petitioner’s wife testified that she did not recall the incident Father first
reported to DCS about the petitioner’s inappropriate contact with A.H. Id. She said that
A.H. developed a rash on her inner thigh area and that the petitioner had applied ointment
on the rash. Id. The petitioner’s wife said that she was present in the bathroom when the
petitioner applied the ointment. Id. As to the allegation against her mother, A.H.’s
maternal grandmother, she explained that her mother was merely tucking A.H.’s shirt in
at church. Id.
The petitioner’s wife denied any memory of speaking privately with the petitioner
while at the sheriff’s department. Id. She could not recall a discussion about “white stuff
coming out of his private” or the petitioner telling her that he was asleep when that
occurred. Id. The petitioner’s wife confirmed that, despite having listened to the audio
recording of the discussion, she could not remember what she and the petitioner spoke
about at the sheriff’s department. Id. She agreed that those statements were on the
recording and true at the time she made the statements. Id. The petitioner’s wife said
that she did not recall telling Detective McCallum that, after leaving the sheriff’s
department the first time, the petitioner had told her that A.H. had approached him while
he was asleep and started “playing with it” and woke him up. Id. The petitioner told the
detectives that he told A.H. to stop, and she put her lips on “it.” Id. The petitioner’s wife
maintained that she could not recall this information even though she had just listened to
the video recording. Id. The petitioner’s wife did recall telling Detective McCallum that
she thought there was more to the story than the petitioner disclosed to her. Id. She
agreed that she did not believe that A.H. went over to the petitioner and “pulled his penis
out and put her lips on it.” Id.
The petitioner’s wife testified that she told Detective McCallum that she kept
trying to ask the petitioner about his interactions with A.H. but that he “really didn’t want
to talk to me about it.” Id. at *10. The petitioner’s wife agreed that she had told
Detective McCallum that she and the petitioner had not engaged in sex since J.L. was
born. Id. She told Detective McCallum that she “would try” but that the petitioner was
disinterested. Id.
On cross-examination, the petitioner’s wife stated that she did not believe that the
petitioner had done “this.” Id. On redirect examination, the petitioner’s wife agreed that
she told Detective McCallum that she believed “it.” Id. She further agreed that she and
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the petitioner had not had “a lot of contact” since the allegations had been raised and that
she missed him. Id.
Mickey McCullough, a Rutherford County Sheriff’s Department sergeant, testified
that he spoke with the petitioner on June 13 and June 14, 2012. Id. Sergeant
McCullough stated that his initial interactions with the petitioner and the petitioner’s wife
on June 13, 2012, were “helpful” in nature; for example, he showed them to the
bathrooms and brought them water. Id. He said that he told both the petitioner and his
wife that they were “free to go. Id. They don’t have to be here.” Id. Sergeant
McCullough confirmed that there was a video recording of the interviews. Id.
Sergeant McCullough testified that he observed a conversation between Detective
McCallum and the petitioner and a conversation between the petitioner and his wife
before he entered the interview room. Id. He said that Detective McCallum asked him to
come into the interview room to “be a little more direct with the [petitioner]” because the
petitioner had been telling Detective McCallum “partial truths” and “out and out lies.”
Id. Sergeant McCullough recalled that the petitioner was very comfortable speaking with
Detective McCallum and his wife. Id. The petitioner even complimented Detective
McCallum on how she was conducting the interview. Id. The petitioner’s demeanor
changed, however, when Sergeant McCullough spoke with him. Id. He said that the
petitioner became “more guarded” and gave “partial admissions” about what had
occurred, which were inconsistent with his statements to Detective McCallum. Id.
Sergeant McCullough said that, approximately fifteen minutes after he began speaking
with the petitioner, the petitioner remembered an event. Id. Sergeant McCullough said
that often a perpetrator is hesitant to disclose his conduct to a female, especially when the
victim is a female. Id. Thus, Sergeant McCullough was not surprised when the petitioner
had denied any recollection with Detective McCallum but shortly thereafter recalled an
incident when speaking with him. Id.
Sergeant McCullough testified that the petitioner went home after the June 13
interview and, as he left, apologized to Detective McCallum “for lying.” Id. On the
following day, the petitioner told Sergeant McCullough that “it’s possible” that while he
was sleeping, A.H. pulled his penis out of his shorts or his penis “flopped out” of his
pants, “[a]nd he woke up and saw her mouth on his penis.” Id. The petitioner said he
responded to A.H. by pushing her away and telling her, “no.” Id. The petitioner brought
three pairs of shorts on June 14, 2012, that he may have been wearing during the incident.
Id. Sergeant McCullough measured the inseam of the shorts, six and a half inches, and
the length of the petitioner’s penis, “a little less than two inches.” Id. The shorts the
petitioner brought had elastic waists with no zippers or opening in the front. Id. The
petitioner stated that he did not wear underwear. Id. Sergeant McCullough explained
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that he measured the inseam of the shorts and the petitioner’s penis because the petitioner
had multiple explanations of how the incident had occurred. Id.
Kevin Smith, an investigator with DCS, testified that, after speaking with J.H. and
T.H., he had concerns about domestic violence issues with the petitioner. Id. at *11. He
learned that an order of protection was in place at the time, so he went to the Looney
residence to meet with the petitioner and his wife. Id. The petitioner told Mr. Smith that
he was a good role model for the children and that they looked up to him. Id. The
petitioner said that he and his wife had formerly used spanking as a form of disciplinary
intervention but no longer did so. Id. He told Mr. Smith that the only time that he had
ever “put his hands on any of the children” was on an occasion when J.H. had wanted to
“run off.” Id. The petitioner said that he “gently put his hand” on J.H.’s shoulder to
restrain him. Id. As to the incident that J.H. alleged the petitioner grabbed him by his
neck, the petitioner said that he only went in the boys’ room to turn off the television. Id.
Mr. Smith testified that there were two things that struck him during this visit to
the Looney residence. Id. First, J.H. and T.H.’s description of the residence was detailed
and accurate. Id. Second, the petitioner made a point to tell Mr. Smith that he did not
have full use of his left arm, due to a stroke, and could not even pick up a gallon jug of
water with the left arm. Id. Later, Mr. Smith observed the petitioner pick up J.L. with his
left arm. Id. Mr. Smith said that he closed the physical abuse complaint toward the end
of April with the classification “substantiated for physical abuse.” Id.
Mr. Smith testified that, within ten days of closing the physical abuse complaint
involving J.H. and T.H., DCS received another referral involving the sexual abuse of
A.H. Id. Mr. Smith was also assigned this complaint. Id. Mr. Smith said that he had
spoken to A.H. before regarding a 2011 allegation of inappropriate touching by A.H.’s
maternal grandmother that was classified “unsubstantiated.” Id. Mr. Smith said that
there was no complaint against the petitioner at that time. Id. The only referral involving
the petitioner was the sexual abuse allegation received on April 30, 2012. Id.
Mr. Smith testified that he observed the forensic interview of A.H. at the Child
Advocacy Center on a closed circuit monitor from an adjacent room. Id. at *12. Mr.
Smith said that he observed A.H. sitting “very comfortably,” and the interviewer
“building rapport.” Id. The interview lasted a little more than thirty minutes and then
A.H. was returned to her parents. Id. After the interview, Mr. Smith encouraged Father
to take A.H. to Our Kids in Nashville for evaluation. Id. He also referred the family to
Dr. Hanket for counseling. Id. Mr. Smith said that, toward the end of May, he and
Detective McCallum determined that they needed to speak with A.H. again. Id. This
time the interview was held in a conference room at the Department of Children’s
Services. Id. In this interview, Mr. Smith “for lack of a better word challenge[d]” some
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of A.H.’s disclosure and A.H. “insist[ed]” that “these things happened.” Id. Based upon
his investigation, Mr. Smith had no concerns about A.H. remaining in Father’s custody.
This referral was substantiated and the multidisciplinary team agreed “to indicate (sic)
[the petitioner] for sex abuse.” Id.
After hearing this evidence, the jury convicted the petitioner of four counts of rape
of a child, one count of felony child abuse, and one count of misdemeanor child abuse.
Id. After a subsequent sentencing hearing, the trial court sentenced the petitioner to serve
an effective sentence of fifty years in prison. Id.
After the denial of his direct appeal, the petitioner filed a timely pro se petition for
post-conviction relief. After the appointment of counsel, the petitioner filed an amended
petition for post-conviction relief wherein he alleged trial counsel was ineffective for
failing to provide the petitioner with a complete copy of his discovery and in exercising
poor trial strategy.
At the post-conviction hearing, trial counsel testified he spoke with the petitioner
several times about testifying, initially believing the petitioner would testify. However,
as the trial progressed, trial counsel realized the petitioner’s testifying was “not a strong
option.” Specifically, trial counsel was concerned because the State possessed jail phone
calls between the petitioner and his wife in which the petitioner made statements that
“were not good,” and trial counsel did not want these to come out on cross-examination.
However, because the State also played several of the petitioner’s taped statements for
the jury, the petitioner was able to tell his side of the story without being subjected to
cross-examination. Near the end of the trial, the petitioner and trial counsel spoke again
about the possibility of testifying, and the petitioner “knew at that point just from
watching in the courtroom why we weren’t going to do it.” Trial counsel agreed he
would advise a client against testifying if he felt it was necessary. However, he had never
unilaterally removed the option of testifying from a client and did not take the petitioner’s
case on the condition that the petitioner forsake his right to testify.
Trial counsel testified he made several attempts to obtain the video of A.H.’s
interview with Ms. Nelson regarding the unsubstantiated accusations against the
petitioner and A.H.’s maternal grandmother. Trial counsel requested all videos of A.H.
from the State; however, he could not recall if he specifically requested the video of Ms.
Nelson’s first interview. Although Ms. Nelson testified all of her interviews were
recorded, a videotape of A.H.’s initial interview was not found. Because he believed the
video may have included exculpatory information, trial counsel argued on direct appeal
the petitioner was entitled to a new trial based on the State’s failure to turn over the
video.
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When asked about discovery, trial counsel testified he met with the petitioner “as
much as any person [he has] ever met” and reviewed all discovery with him. Trial
counsel did not leave the discovery material with the petitioner, however, because the
petitioner was “fearful for his life” and did not want material related to child sex abuse in
his cell. Trial counsel stated this was not a problem because the facts in the case were
“fairly simple.”
The petitioner then testified, stating he spoke with trial counsel at their initial
consultation about the possibility of testifying. The petitioner stated trial counsel would
not represent him unless the petitioner agreed not to testify on his own behalf. Despite
the petitioner’s desire to testify, he did not feel it was an option due to trial counsel’s
earlier statements.
The petitioner was not aware of A.H.’s first interview with Ms. Nelson until trial,
and did not know if a video of the interview existed. In regards to discovery, the
petitioner stated trial counsel would sometimes bring paperwork with him, but did not
leave anything for the petitioner to review. Trial counsel did not go over the State’s
discovery with the petitioner and did not provide him with a copy of the indictment.
While the petitioner understood the charges against him, he was unaware of what
evidence the State would use at trial.
After its review of the evidence presented, the post-conviction court denied relief,
and this timely appeal followed.
Analysis
On appeal, the petitioner argues trial counsel was ineffective in failing to obtain a
video recording of the first interview with A.H., in failing to provide a full copy of the
State’s discovery to the petitioner, and in preventing the petitioner from testifying in his
own defense. The State contends the post-conviction court correctly denied the petition
as the petitioner failed to meet his burden. Following our review of the record and
submissions of the parties, we affirm the judgment of the post-conviction court.
The petitioner bears the burden of proving his post-conviction factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues.
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court’s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
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counsel presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations de
novo, affording a presumption of correctness only to the post-conviction court’s findings
of fact. Id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
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The petitioner argues trial counsel was ineffective for failing to obtain the video
recording of A.H.’s first interview with Ms. Nelson, a former forensic interviewer with
the Child Advocacy Center, in failing to provide discovery to the petitioner, and in
preventing the petitioner from testifying at trial. The petitioner contends trial counsel’s
failures left him “unable to properly weigh his odds at trial.” The record, however, fails
to support any of the petitioner’s claims.
At the post-conviction hearing, trial counsel testified he searched diligently for
Ms. Nelson, who was difficult to locate because she had changed professions since
interviewing A.H., and subpoenaed her to trial. In addition, trial counsel requested all
videos of A.H. from the State, receiving one video “a week or ten days before trial.”
However, he could not recall whether he specifically requested the first interview of A.H.
prior to trial. Trial counsel addressed this issue in the petitioner’s direct appeal, arguing
the petitioner was entitled to a new trial based on the State’s failure to turn over the video
of A.H.’s first interview with Ms. Nelson. This Court found the issue without merit
because the petitioner could not prove whether the video exists. Trial counsel was unsure
whether the recording was ever found.
While the petitioner claims he did not know about the interview or video recording
prior to trial, he failed to produce the video during the post-conviction hearing or call Ms.
Nelson to discuss the video. Without the actual video or Ms. Nelson’s testimony, this
Court has no way of determining whether the video exists or, more importantly, whether
the missing video prejudiced the petitioner at trial. See Daetrus Pilate v. State, No.
W2017-02060-CCA-R3-PC, 2018 WL 3868484, at *5 (Tenn. Crim. App. Aug. 14, 2018).
Furthermore, implicit in the post-conviction court’s order denying relief is an
accreditation of trial counsel’s testimony, and nothing in the record preponderates against
the post-conviction court’s factual findings. See Tidwell, 922 S.W.2d at 500. The
petitioner has failed to provide any evidence demonstrating how he was prejudiced by
trial counsel’s failure to obtain the video recording. Accordingly, the petitioner is not
entitled to relief.
Regarding discovery, trial counsel explained he did not leave discovery with the
petitioner because the petitioner was “fearful for his life,” and they agreed trial counsel
“would not put any documents in his cell.” However, trial counsel met with the
petitioner “as much as any person [he has] ever” represented, and they reviewed the
discovery together during those meetings. Trial counsel did not bring the discovery every
visit because the “facts are fairly simple.” The petitioner testified trial counsel would
sometimes bring paperwork with him but alleged they did not go over each piece of the
State’s evidence. He did not know what evidence the State would use against him at trial.
However, as previously addressed, the post-conviction court accredited trial counsel’s
testimony, and nothing in the record preponderates against its factual findings. See
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Tidwell, 922 S.W.2d at 500. Additionally, the petitioner has failed to prove by clear and
convincing evidence his factual claim that he did not receive discovery. The petitioner is
not entitled to relief.
Finally, the petitioner contends trial counsel prevented him from testifying at trial.
Trial counsel testified he and the petitioner discussed the issue of testifying several times
throughout the case. Although he originally felt it was a strong option, as the trial
progressed, trial counsel felt it was not in the petitioner’s best interest to testify. Trial
counsel was worried the petitioner would be asked about jail phone calls between him
and his wife when he made statements that “were not good.” In addition, the State played
some of the petitioner’s recorded statements during trial, which allowed the petitioner to
tell his story without subjecting him to cross-examination. Trial counsel maintained he
may have advised the petitioner not to testify, but he had never prevented a client from
testifying. The petitioner testified he voiced his desire to testify, but did not think it was
an option because, according to the petitioner, trial counsel had initially said he would not
take the case if the petitioner intended to testify. However, on cross-examination, the
petitioner acknowledged he could have hired another lawyer if he wished. When asked
what his testimony would have been, the petitioner simply stated he “would tell the
truth.” Despite his claim to “tell the truth,” the petitioner failed to offer any testimony
that would rebut the overwhelming proof of his guilt. Thus, the petitioner has failed to
establish prejudice. Additionally, as discussed above, the post-conviction court
accredited trial counsel’s testimony, and nothing in the record preponderates against its
factual findings. See Tidwell, 922 S.W.2d at 500. The petitioner is not entitled to relief.
In denying post-conviction relief, the post-conviction court noted many of the
issues raised by the petitioner relate to trial strategy and found “the strategy used by [trial
counsel] on all these issues was an appropriate strategy.” We agree. Trial counsel’s
strategic and tactical choices will not be second guessed when those choices are based on
informed preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Simply because
trial counsel’s strategy was unsuccessful or even hurt the defense does not render the
assistance ineffective. Id. Moreover, no evidence exists in the record to support the
petitioner’s attack on trial counsel’s performance or how the alleged deficient
performance affected the outcome of his trial. See Strickland, 466 U.S. at 687. The
petitioner is not entitled to post-conviction relief for his claim of ineffective assistance of
counsel.
Conclusion
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
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____________________________________
J. ROSS DYER, JUDGE
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