State v. John M. Johnson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1999 SESSION
FILED
February 10, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
JOHN MALCOLM JOHNSON, * C.C.A. No. W1999-00679-CCA-R3-PC
Appellant, * TIPTON COUNTY
VS. * Joseph H. Walker, III, Judge
STATE OF TENNESSEE, * (Post-Conviction Relief)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
FRANK DESLAURIERS PAUL G. SUMMERS
P. O. Box 1156 Attorney General & Reporter
Covington, TN 38019
KIM R. HELPER
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
DEBORAH ALSUP
Assistant District Attorney
P. O. Box 790
Somerville, TN 38068-0790
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
INTRODUCTION
The petitioner, John Malcolm Johnson, appeals from the trial court’s order,
entered after a hearing, denying his petition for post-conviction relief. The petitioner
was convicted of one count of rape of a child by a Tipton County jury. He was
sentenced as a Range I Offender to 15 years in the Department of Correction. On
direct appeal, his conviction was affirmed. At post-conviction, he now argues that
he received ineffective assistance of counsel at trial and therefore seeks a new trial.
After careful review, we AFFIRM the denial of the trial court.
BACKGROUND
For the purposes of this appeal, we set forth the facts as outlined by the
petitioner. On the morning of November 9, 1996, the petitioner’s wife saw her 11
year old daughter “straddling” her nude husband in the living room of their house.
She was “straddling” the petitioner’s feet and was not wearing underwear. The
petitioner’s penis was partially erect and, according to the wife, “looked like [it] had
slipped out of her.”
Investigating the wife’s report, Officer Gamblin of the Covington Police
Department questioned the petitioner on November 11, 1996. The petitioner during
this questioning admitted to being with his daughter on the couch undressed but
denied any act of penetration.
The petitioner’s wife and the victim gave statements to the police; their
statements were inconsistent with those of the petitioner. At trial, the daughter
testified that the petitioner’s penis was “a little bit” inside her vagina. On the basis
of her testimony, that of the wife, and certain admissions of the petitioner, the jury
convicted the petitioner of one count of rape of a child.
In the instant appeal, the petitioner argues that at this trial, his counsel was
ineffective in failing to call a certain witness, Nurse Sandra Anderson of the
Memphis Sexual Assault Resource Center. Anderson examined the victim
approximately two days after the incident. She found evidence of tears in the
victim’s hymenal lumen, consistent with some form of penetration. When taking the
daughter’s history, Anderson noted that according to the mother, the daughter had
stated that the petitioner digitally penetrated her and did not mention his penis.
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Anderson, however, did not testify at trial. Defense counsel failed to
subpoena her; instead, counsel was relying on the state’s subpoena of Anderson.
This reliance proved misplaced when the state released Anderson without having
called her. On this basis, the petitioner alleged ineffective assistance of counsel at
post-conviction.
The post-conviction court conducted a hearing on this claim and heard the
testimony of Anderson, consistent with that described above, and the testimony of
the petitioner’s trial counsel, David Stockton. Counsel testified that Anderson’s
testimony would have been crucial in impeaching the testimony and credibility of the
daughter.
After hearing this testimony, the trial court denied the petition, stating that the
proof was clear and convincing that “trial counsel properly investigated the case,
conferred with petitioner, adequately prepared for trial, and was competent through
all stages of the trial.” From this ruling, the petitioner now appeals.
ANALYSIS
The petitioner asserts that he received ineffective assistance at trial;
specifically, he alleges that trial counsel was ineffective in failing to subpoena and
call Nurse Anderson. This Court reviews a claim of ineffective assistance of
counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The petitioner has
the burden to prove that (1) the attorney’s performance was deficient, and (2) the
deficient performance resulted in prejudice to the petitioner so as to deprive him of
a fair trial. See Strickland at 687, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d
363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990).
In Tennessee, the test for determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. The
petitioner must overcome the presumption that counsel’s conduct falls within the
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wide range of acceptable professional assistance. Strickland, 466 U.S. at 689,
104 S.Ct. at 2065; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998);
Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997). Therefore, in order
to prove a deficiency, a petitioner must show that counsel’s acts or omissions were
so serious as to fall below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State,
960 S.W.2d 572, 579 (Tenn. 1997); Goad, 938 S.W.2d at 369.
In reviewing counsel’s conduct, 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.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
The fact that a particular strategy or tactic failed or hurt the defense does not,
standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed
ones based upon adequate preparation. See Goad, 938 S.W.2d at 369; Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley, 958 S.W.2d at 149; Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Assuming arguendo that trial counsel’s failure to subpoena a “crucial” witness
was ineffective, we review for prejudice. In this case, the petitioner’s theory is that
the testimony of Anderson, while consistent with reports of penetration and
consistent with the convicted offense,1” would nevertheless have proven powerful
in undermining the credibility of the victim and thus in casting doubt in the minds of
the jurors.” This Court acknowledges that the credibility of the victim is an essential
element of this case; however, we are unpersuaded by the petitioner’s argument
and find no prejudice sufficient for reversal.
Read in any light, Anderson’s testimony is consistent with the state’s theory
of the case. She testified to evidence of penetration, and Anderson’s recorded
history reports that such penetration was caused by the petitioner. The fact that
digital, and not penile, penetration was reported in her notes is not cause for
1
See Tenn. Code A nn. § 39-13-522, -501(7).
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disbelieving the testimony of the victim. However, beyond this one discrepancy, the
petitioner can claim no value in Anderson’s testimony. In fact, Anderson’s notes do
reflect that the victim’s mother said that it looked like her husband was having sex
with the victim. Whatever the case, her testimony, taken as a whole, clearly
supports the state’s case. Whatever impeachment value the petitioner perceives
therein is, at best, minimal and certainly does not rise to the level contemplated by
Strickland and required for reversal.
CONCLUSION
Accordingly, we AFFIRM the trial court’s order denying the petition for post-
conviction relief.
_______________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_______________________________
GARY R. WADE, Presiding Judge
_______________________________
NORMA McGEE OGLE, Judge
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