State of Tennessee v. Daniel E. Pottenbaum, Sr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 19, 2013
STATE OF TENNESSEE v. DANIEL E. POTTEBAUM, SR.
Appeal from the Criminal Court for Davidson County
No. 2002-C-1808 Cheryl Blackburn, Judge
No. M2012-01573-CCA-R3-PC - Filed June 21, 2013
The Petitioner, Daniel E. Pottebaum, Sr., contends that he received the ineffective assistance
of counsel at his retrial and cites the following bases in support of that contention: (1) trial
counsel’s failure to object to the Petitioner’s testimony from his first trial being read into the
record at his second trial where he chose not to testify; (2) trial counsel’s failure to move for
a severance of the domestic assault offense from the unrelated sexual abuse offenses; and (3)
trial counsel’s failure to object to the jury instruction on flight. After reviewing the record
and the applicable authorities, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.
James O. Martin, III, Nashville, Tennessee (on appeal); and David Christensen, Brentwood,
Tennessee (at post-conviction hearing); for the appellant, Daniel E. Pottebaum, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant
District Attorney General; for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
The Petitioner was convicted by a jury of the following offenses: two counts of rape
of a child (J.P.1 ), two counts of aggravated sexual battery (J.P.), and assault (E.P.2 ). On
appeal, this court reversed the trial court, holding that “the trial court committed prejudicial
error by not allowing [the Petitioner] to cross-examine the victim on the prior accusation of
sexual abuse” and “in admi[tting a] tape-recorded telephone conversation[,]” and the case
was remanded for a new trial. State v. Daniel E. Pottebaum, No. M2004-02733-CCA-R3-CD,
2006 WL 1222710 (Tenn. Crim. App. May 5, 2006). A detailed summary of the evidence
supporting these convictions and this court’s analysis, reversing the trial court and granting
a new trial, can be found in this court’s opinion on direct appeal. Id. On remand, the
Petitioner was again convicted of all offenses as charged and sentenced to serve seventy-four
years in the Department of Correction (DOC), and the convictions were affirmed on appeal.
See State v. Daniel E. Pottebaum, No. M2007-02108-CCA-R3-CD, 2008 WL 5397848(Tenn. Crim. App. Dec. 30, 2006), perm app. denied (Tenn. June 1, 2009).
On February 23, 2010, the Petitioner filed a pro se petition for post-conviction relief,
and an amended petition citing additional grounds for relief was filed after the appointment
of counsel. The pro se petition listed the “ineffective assistance of counsel” and “right to a
fair trial” as grounds for post-conviction relief.3 The amended petition cited the following
grounds for relief: (1) use of the Petitioner’s former testimony from his first trial, violating
his right to due process and right not to testify; (2) flight instruction was improperly given
to the jury in violation of the Petitioner’s due process rights; and (3) ineffective assistance
of counsel, citing counsel’s failure to object to the introduction of the Petitioner’s prior
testimony and the flight instruction and counsel’s failure to move for a severance of unrelated
offenses.4
At the post-conviction hearing, the Petitioner’s trial counsel testified that he tried both
of the Petitioner’s cases and that both trials resulted in guilty verdicts. Trial counsel said that
he did not recall objecting to the Petitioner’s testimony from the first trial being introduced
at the second trial. However, trial counsel stated that he believed the testimony was
admissible under an exception to the hearsay rule because the Petitioner was not testifying
at the second trial. Trial counsel testified that he decided that admission of the redacted
statement would be a way for the Petitioner to testify without being subjected to cross-
examination. He explained, “if there were grounds to object[,] we decided to waive that
1
This court generally refers to minor victims and their parents by their initials to protect their anonymity.
2
E.P. is J.P.’s mother.
3
The Petitioner elaborated on these general issues in the petition but abandoned those arguments on appeal.
4
On appeal, the Petitioner only pursued the grounds supporting a claim of the ineffective assistance of
counsel.
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because we felt it was better for him -- for his testimony, for his denials to get before the jury
without, you know, leaving that blank there.”
Trial counsel stated that he did not file a motion to sever the domestic assault count
from the sex abuse counts. He agreed that they were separate cases, separate victims, and
separate offense dates. However, he explained,
that was, again, something that we discussed. And there may very well have
been grounds to file such a motion, but part of my strategy was that the fact
that he had allegedly been involved in domestic assault with his wife could be
used to show her motivation for planting the sex abuse seed in the child.
Trial counsel stated that the Petitioner “trusted what [he] said as far as with the way in which
[they] should proceed.” Nevertheless, trial counsel admitted that “if the[ cases] had been
severed, proof of one crime would not have been admissible in the case with the sex
crimes[.]”
When asked whether the trial court instructed the jury as to flight, trial counsel stated,
“I don’t recall if the Court did or not, and I surely objected to that. If I didn’t then . . .” Trial
counsel explained,
It’s been a long time . . . , so if the Court did instruct on flight then so
be it. But, I mean, the bottom line was is that he took off to Kentucky shortly
after discovery that the police were after him. Now, he took off because of the
warrant for the domestic assault. . . . Not because of the allegation of the sex
abuse. And of course then if we’d severed the cases then you could have
argued, well, the instruction on flight could have only been used in the trial on
the domestic assault.
Trial counsel agreed that the trial court’s flight instruction had been used against the
Petitioner on all counts, and he stated, “You’re right. There is always things you could look
back at and say, maybe I should have done this differently.”
On cross-examination, trial counsel stated that he had been practicing as a criminal
attorney since 1988 and had tried approximately fifty cases, at least half of which involved
child or sexual abuse. Trial counsel said that he had represented people involved in such
crimes in a substantial percentage of his cases and that he was well-versed in the issues
involving child and sexual abuse because of that experience. Trial counsel stated that, at the
first trial, he “put [the Petitioner] on [because he] felt like [the Petitioner’s] position of
denial, which he always denied it, needed to be made known.” However, trial counsel said,
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“unfortunately I just don’t think he did a very good job in the first trial of withstanding [the
prosecutor’s] cross-examination.” Trial counsel agreed that part of the Petitioner’s decision
to testify at his first trial was based on the trial court precluding trial counsel from cross-
examining J.P. about the allegations she had previously made about her brother molesting
her. He elaborated, “You know, in other words trying to get in some things we weren’t able
to get in early.” According to trial counsel, the transcript of the Petitioner’s testimony from
his first trial was redacted to exclude evidence that had been ruled inadmissible by the Court
of Criminal Appeals or that was, otherwise, considered to be improper or prejudicial; it was
his strategy to allow the admission of this redacted testimony to present the Petitioner’s
denial without subjecting him to cross-examination.
The Petitioner also testified at the hearing. He said that he decided to testify at the
first trial because the trial court would not allow him to introduce evidence that J.P. had
previously brought allegations against her brother “on the same type of charges” the
Petitioner faced, and trial counsel thought he might be able to bring that evidence in if he
testified. The Petitioner said that he and trial counsel found out that they could not cross-
examine J.P. on that issue approximately one to two months before trial and that this changed
the way he viewed his defense. He stated that he did not testify at the second trial because
the Court of Criminal Appeals ruled that he could cross-examine the victim on the prior
allegation, and that was why he initially testified. The Petitioner said that he did not know
when he made the decision not to testify at the second trial that his testimony from the first
trial would be admissible.
The Petitioner said that he left E.P. and went to Kentucky. He stated that he returned
to Nashville before he was arrested for the instant offenses because E.P. called and asked him
to look at her car. E.P. told him that something was wrong with her car, and she asked him
to stay for a few days to earn money to help her make payments on the car. The Petitioner
stated that the police arrived and arrested him within hours of his arrival at E.P.’s house. He
said that he did not know there was a warrant for his arrest, but he assumed that the police
were there to arrest him for the domestic assault offense even though E.P. had told him that
she never called the police regarding that incident. The Petitioner testified that E.P. never
mentioned the sexual assault charges during their telephone conversations.
The Petitioner testified that trial counsel never objected to the flight instruction or the
admission of the Petitioner’s testimony from the first trial. He said that trial counsel
discussed the admission of his testimony from the first trial as a trial strategy. According to
the Petitioner, trial counsel “mentioned that it might be not good for us. But not bad for us
to get my denials in. I mean, it wasn’t a strategy ‘cause when [trial counsel] brought it up
he said that it might not hurt us for me to get my objections in as long as they took out
everything that the Court of Criminal Appeals said . . . .”
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On cross-examination, the Petitioner admitted that he and trial counsel “discussed as
a strategic point that [he] couldn’t get into evidence that was excluded by the Court unless
[the prosecutor] created the opportunity for that to happen and when that happened [he was]
going to jump at that opportunity.” He agreed that “the real reason for testifying wasn’t to
create that opportunity, but to get in the fact that [he] w[as] going to say [he] never sexually
abused [his] daughter. [He] wanted to testify about [his] denials first and foremost.”
The post-conviction court denied relief via order on June 25, 2012, and issued the
following findings. Regarding trial counsel’s alleged failure to object to the Petitioner’s
prior testimony, the post-conviction court stated,
Trial counsel testified that he did not object because it was part of the
defense strategy for Petitioner [to] testify since he was the only person who
could provide his version of events and counsel “felt strongly that his position
of denial needed to be made known in front of a jury.” After observing the
intense cross-examination of Petitioner at the first trial, Trial Counsel felt it
was to their benefit to have the redacted testimony be admitted; that way
Petitioner was able to present his version of events to the jury without being
challenged in front of a jury during a live cross-examination. The Court
credits Trial Counsel’s testimony and defers to the strategy and tactical choice
of counsel. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)(courts should defer
to the trial strategy or tactical choices of counsel if they are informed ones
based upon adequate preparation).
Further, this Court maintains that Petitioner’s first trial testimony,
redacted to comply with the appellate ruling, was admissible in the State’s
case-in-chief since Petitioner asserted his Fifth Amendment right not to testify
at the second trial.
In a footnote, the post-conviction court stated that it found “the Petitioner’s reliance on the
Supreme Court case Harrison v. United States, 392 U.S. 219, 225 (1986)[,] to be misplaced
as that case involved a defendant testifying at his first trial after the State introduced three
illegally obtained confessions that were declared inadmissible on appeal.
Turning to the flight issue, the post-conviction court stated,
Petitioner himself testified (at the first trial and this portion was read at
the second trial) about the fact he ran away and indicated his departure was
due to the domestic fight. . . . Trial Counsel admitted that the jury charge
would be applicable to the domestic violence count and had explained
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previously the defense trial strategy was to keep the counts together since the
theory was the domestic charge provided motivation for the child to make the
false sexual abuse allegations.
Although Petitioner maintains he fled solely because of the domestic
charges, not only were the counts tried together thereby permitting the
instruction, but testimony from other witnesses indicated Petitioner was aware
of the sexual assault allegations. . . . Thus, regardless of whether Trial Counsel
raised an objection the instruction, sufficient evidence existed to support the
instruction, and the Court would have overruled any objection had it been
made. Further, the Tennessee Court of Criminal Appeals has stated that
the flight instruction pointed out to the jury that innocent
persons may take flight, and it was up to the jury to determine
whether there was flight, the reasons for the flight, and the
weight to be given to it. Just as the instruction allowed an
inference of guilt from flight, it also instructed that the evidence,
facts, and circumstances may show that an innocent person may
take flight.
State v. Richardson, 995 S.W.2d 119, 129 (Tenn. Crim. App. 1998).
In light of all of the above, the Court finds that Petitioner has failed to
establish by clear and convincing evidence this claim of his petition.
In addressing the final issue, severance, the post-conviction court stated,
Trial Counsel testified that he intentionally did not move to sever the
charges because the defense wanted evidence of the domestic assault to be
admitted at the trial on the sexual abuse to support their theory that the mother
encouraged their child to fabricate the sexual abuse charges; that is, the
domestic violence charges were an integral part of the defense against the
sexual abuse charges. The Court credits Trial Counsel’s testimony and defers
to the strategy and tactical choice of counsel. Hellard, 629 S.W.2d at 9.
Accordingly, the Court finds that Petitioner has failed to meet his burden to
demonstrate that counsel was ineffective or that Petitioner was prejudiced by
any alleged deficiencies.
This appeal followed.
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ANALYSIS
The Petitioner contends that trial counsel rendered ineffective assistance at his retrial
because trial counsel failed to (1) object to the Petitioner’s testimony from his first trial being
read into the record at his second trial where he chose not to testify, (2) move for a severance
of the domestic assault offense from the unrelated sexual abuse offenses, and (3) object to
the jury instruction on flight. The Petitioner also contends that trial counsel’s strategies
should not be given deference as informed ones based on adequate preparation because they
were employed in the first trial and had failed; thus, trial counsel was ineffective for using
the same tactics in the retrial. The State responds that trial counsel’s performance was not
deficient and his strategies are entitled to deference because trial counsel (1) made a
deliberate, tactical choice not to object to the admission of the Petitioner’s prior testimony,
allowing the jury to hear the Petitioner’s “denials” without subjecting him to cross-
examination; (2) decided not to file a severance motion, in furtherance of the defense’s
theory of the case; and (3) was not in error for failing to object to a flight instruction that was
supported by the evidence.
The trial court’s findings of fact are conclusive on appeal unless the evidence in the
record preponderates against them. See State v. Nichols, 90 S.W.3d 576, 586 (Tenn. 2002)
(citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v. State, 40 S.W.3d
450, 456-57 (Tenn. 2001). The Petitioner has the burden of establishing that the evidence
preponderates against the trial court’s findings. Henley v. State, 960 S.W.2d 572, 579 (Tenn.
1997). This court may not re-weigh or reevaluate the evidence or substitute its inferences for
those drawn by the trial court. Nichols, 90 S.W.3d at 586. Furthermore, the credibility of the
witnesses and the weight and value to be afforded their testimony are questions to be
resolved by the trial court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
I. Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are regarded as mixed questions of law and
fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the trial court’s
findings of fact underlying a claim of ineffective assistance of counsel are reviewed under
a de novo standard, accompanied with a presumption that the findings are correct unless the
preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn. R. App.
P. 13(d)). The trial court’s conclusions of law are reviewed under a de novo standard with
no presumption of correctness. Id.
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Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the defendant to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance was deficient is not enough;
rather, the defendant must also show that but for counsel’s deficient performance, “the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has also been applied to the right to counsel under article I, section 9 of the
Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).
A defendant will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580
(Tenn. 1997). The performance prong requires a defendant raising a claim of ineffectiveness
to show that the counsel’s representation fell below an objective standard of reasonableness
or was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S.
at 690. The prejudice prong requires a defendant to demonstrate that “there is a reasonable
probability that, but for counsel’s professional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability means a probability sufficient to
undermine confidence in the outcome.” Id. Failure to satisfy either prong results in the
denial of relief. Id. at 697.
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within
the range of competence demanded of attorneys in criminal cases. Id. Further, the court
stated that the range of competence was to be measured by the duties and criteria set forth
in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.
DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). In reviewing counsel’s conduct, a “fair
assessment of attorney performance 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. Deference is made to trial strategy or tactical choices if they are informed ones
based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see
DeCoster, 487 F.2d at 1201. “Thus, the fact that a particular strategy or tactic failed or even
hurt the defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
A. Deference to Trial Counsel’s Strategies and Tactics
As a preliminary matter, we address the Petitioner’s argument that trial counsel’s
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strategies should not be given deference as informed ones based on adequate preparation
because the strategies were tried at the first trial and had failed. It is well-settled that the fact
that a particular strategy failed or even hurt the defense does not alone support a claim of
ineffective assistance of counsel. See Cooper, 847 S.W.2d at 528. As the State succinctly
argues, the Petitioner’s second trial was different from the first because, in remanding the
case, this court precluded the admission of damaging evidence presented in the first trial and
permitted a line of inquiry regarding false accusations by the victim that was previously
prohibited. In addition to that previously excluded evidence being permitted, the Petitioner
was able to “testify” – via a redacted transcript from his testimony at the first trial – without
being subjected to cross-examination. The Petitioner was allowed to present his theory of
the case to the jury absent much of the attack mounted by the prosecution in the first trial.
Under these circumstances, we cannot conclude that it was outside the range of competence
demanded of attorneys in criminal cases for trial counsel to utilize the same broad strategies
employed in the Petitioner’s first trial. Because the record reflects that trial counsel’s
strategies were informed ones based on adequate preparation, we will defer to his tactical
decisions.
B. Counsel’s Failure to Object to the Admission of the Petitioner’s Prior Testimony
Generally, “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted” is considered
hearsay and is inadmissible. See Tenn. R. Evid. 801(c), 802. However, exceptions to this
general rule have been carved out because they “bear sufficient indicia of reliability and
trustworthiness to warrant admission.” State v. Henry, 33 S.W.3d 797, 802 (Tenn. 2000).
One such exception involves a witness’s former testimony. See Tenn. R. Evid. 804(b)(1).
Tennessee Rule of Evidence 804(b)(1) governs the admissibility of the former
testimony of a witness. It states, in relevant part,
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another
hearing of the same or a different proceeding or in a deposition taken
in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered
had both an opportunity and a similar motive to develop the testimony
by direct, cross, or redirect examination.
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Tenn. R. Evid. 804(b)(1). Under the aforementioned circumstances, a witness’s former
testimony is admissible, despite their unavailability. Unavailability of a witness is defined
in Tennessee Rule of Evidence 804. It includes instances in which the declarant:
(1) is exempted by ruling of the court on the grounds of privilege from
testifying concerning the subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the subject matter of the
declarant’s statement despite an order of the court to do so; or
(3) demonstrates a lack of memory of the subject matter of the declarant’s
statement; or
(4) is unable to be present or to testify at the hearing because of the declarant’s
death or then existing physical or mental illness or infirmity;
(5) is absent from the hearing and the proponent of a statement has been
unable to procure the declarant’s attendance by process[.]
Tenn. R. Evid. 804(a). Former testimony admitted under Rule 804(b)(1) is substantive
evidence. See State v. Causby, 706 S.W.2d 628, 632 (Tenn. 1986); see also State v. Samuel
Armod Winkfield, 2010 WL 796917, *6 (Tenn. Crim. App. March 9, 2010)(citing State v.
Stacey Philander Baldon, No. W2000-00524-CCA-R3-CD, 2001 WL 128586, at *5 (Tenn.
Crim. App. Feb. 12, 2001)). It is well-settled that the “invocation of the privilege against
self-incrimination renders a witness unavailable.” State v. Howell, 868 S.W.2d 238, 250
(Tenn. 1993) (citing State v. Armes, 607 S.W.2d 234, 237 (Tenn. 1980)). Because the
Petitioner decided not to testify at his second trial, he was considered unavailable, and the
post-conviction court ruled that the Petitioner’s testimony from the first trial was admissible
under this hearsay exception. For those same reasons, we agree.
The Petitioner, relying on Harrison v. United States, 392 U.S. 219 (1968), argues that
trial counsel rendered ineffective assistance because trial counsel should have objected to the
admission of his testimony as it was unlawfully compelled by the trial court’s adverse ruling
prohibiting him from cross-examining J.P. about a prior accusation of sexual abuse. The
post-conviction court ruled, however, that trial counsel’s failure to object was not deficient
because the Petitioner’s testimony was admissible under Tennessee Rule of Evidence 804(1)
and that his reliance on Harrison was misplaced.
In Harrison, the defendant was originally tried on a charge of felony murder. At his
first trial, the prosecution introduced three confessions allegedly made by defendant while
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in police custody. After the admission of these confessions, the defendant took the stand and
testified to his own version of the events. The jury found the defendant guilty. On appeal, the
conviction was reversed when the court determined that the confessions admitted at trial had
been illegally obtained. Id. at 220. At a second trial, the prosecution did not admit
defendant’s confessions into evidence but did read into evidence the defendant’s testimony
from his first trial. The defendant was convicted again, and the conviction was affirmed on
appeal. Id. at 221. On appeal to the United States Supreme Court, the Court had to decide
whether the testimony from the defendant’s first trial was properly admitted against the
defendant at his second trial. The Court noted that it did not “question the general
evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence
against him in later proceedings.” Id. at 222. In so doing, the Court explained that, generally,
[a] defendant who chooses to testify waives his privilege against compulsory
self-incrimination with respect to the testimony he gives, and that waiver is no
less effective or complete because the defendant may have been motivated to
take the witness stand in the first place only by reason of the strength of the
lawful evidence adduced against him.
Id. The Court then created a narrow exception to the general rule, based upon the facts in
that case:
Here, however, the petitioner testified only after the Government had illegally
introduced into evidence three confessions, all wrongfully obtained, and the
same principle that prohibits the use of confessions so procured also prohibits
the use of any testimony impelled thereby-the fruit of the poisonous tree . . .
Id.
The Court explained that because the confessions had been illegally obtained, “[t]he
question is not whether the petitioner made a knowing decision to testify, but why. If he did
so in order to overcome the impact of confessions illegally obtained and hence improperly
introduced, then his testimony was tainted by the same illegality that rendered the confessions
themselves inadmissible.” Id. at 223. The burden is on the Government to show that its
illegal action did not induce his testimony. Id. at 225. The Court ultimately determined that
the Government failed to demonstrate that the defendant’s decision to testify at his first trial
was not motivated by the introduction of the illegally obtained confessions and, therefore,
reversed the defendant’s conviction. Id. at 224-26.
The instant case is factually distinguishable from Harrison. The issue in Harrison was
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based on illegally obtained confessions that, the admission of which, induced that defendant
to testify in an effort to rebut the damaging statements. Here, the Petitioner alleges that he
was induced to testify because the trial court wrongfully precluded cross-examination of the
victim regarding a false report of sex abuse against her brother. However, unlike in Harrison,
there was no illegal evidence admitted in the instant case that impelled the Petitioner to
testify.5 Further, the trial court’s exclusion of an inquiry into J.P.’s prior allegation of abuse
on cross-examination, albeit improper, did not necessitate the Petitioner’s testimony to rebut
damaging statements made against him.
We also note that, at the post-conviction hearing, the Petitioner stated that his reason
for testifying was two-fold: to attempt to get the excluded evidence in and to get “his
denials” to the jury. Both trial counsel and the Petitioner believed that admission of the
redacted statement would be a way for the Petitioner to get his denials to the jury without
being subjected to cross-examination. Despite the Petitioner’s inability to “open the door”
and testify about J.P.’s previous allegation, this was a tactical decision, and it is entitled to
deference. Thus, for the foregoing reasons, we conclude that trial counsel was not deficient
for failing to object to the admission of the Petitioner’s redacted testimony from the first trial.
C. Counsel’s Failure to Request a Severance of the Domestic Violence Offense from the Sex
Abuse Counts
Tennessee Rule of Criminal Procedure 8(b) provides that “[t]wo or more offenses may
be joined in the same indictment” if the offenses are either (1) “parts of a common scheme
or plan” or (2) “of the same or similar character.” However, Rule 14(b)(1) provides that if
“two or more offenses are joined ... pursuant to Rule 8(b), the defendant has the right to a
severance of the offenses unless the offenses are part of a common scheme or plan and the
evidence of one would be admissible in the trial of the others.” Once a defendant files a Rule
14(b)(1) severance motion, the trial court must sever the offenses unless it can
conclude from the evidence and arguments presented at the hearing that: (1)
the multiple offenses constitute parts of a common scheme or plan; (2)
evidence of [one] offense is relevant to some material issue in the trial of all
the other offenses; and (3) the probative value of the evidence of other
offenses is not outweighed by the prejudicial effect that admission of the
evidence would have on the defendant.
State v. Garrett, 331 S.W.3d 392, 403 (Tenn. 2011) (quoting Spicer v. State, 12 S.W.3d 438,
5
Harrison has never been applied to the exclusion of evidence, and it cannot be extended here.
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445 (Tenn. 2000)).
As our supreme court has previously stated, “a common scheme or plan for severance
purposes is the same as a common scheme or plan for evidentiary purposes.” State v. Moore,
6 S.W.3d 235, 240 n .7 (Tenn.1999). For offenses to be considered part of a continuing
scheme or plan, the crimes must be directed toward a “common goal or purpose.” State v.
Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting State v. Hoyt, 928 S.W.2d 935, 943 (Tenn.
Crim. App. 1995)) (quotation marks omitted). This “requires proof of ‘a working plan,
operating towards the future with such force as to make probable the crime for which the
defendant is on trial.’” State v. Allen Prentice Blye, No. E2001-01375-CCA-R3-CD, 2002
WL 31487524, at *5 (Tenn. Crim. App. Nov. 1, 2002) (quoting Hoyt, 928 S.W.2d at 943).
We agree that if a motion for severance had been filed, the trial court probably would
have granted the motion because the domestic violence offense was committed on a different
day than the remaining counts in the indictment, involved a different victim, and does not
appear to have otherwise been a part of a common scheme or plan. However, trial counsel
testified that not filing a severance motion was a tactical strategy because keeping the counts
together supported their theory that the alleged domestic assault of E.P. was “her motivation
for planting the sex abuse seed in the child.” The post-conviction court credited trial
counsel’s testimony and “defer[red] to [the] strategy and tactical choice of counsel[.]” The
record supports trial counsel’s testimony that his failure to file a severance motion was a
tactical strategy, and the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance. Cooper, 847 S.W.2d at 528. As
such, the Petitioner is not entitled to relief on this issue.
D. Counsel’s Failure to Object to the Jury Instruction on Flight
In criminal cases, the trial court has the duty to charge the jury on all of the law that
applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing
State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). The defendant also “has a right to
have every issue of fact raised by the evidence and material to his defense submitted to the
jury upon proper instructions by the judge.” Thompson, 519 S.W.2d at 792. An erroneous
jury instruction may deprive the defendant of the constitutional right to a jury trial. See State
v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000). A jury instruction must be reviewed in its
entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn.
2004). “An instruction should be considered prejudicially erroneous only if the jury charge,
when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the
applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann,
976 S.W.2d 93, 101 (Tenn. 1998)).
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The post-conviction court found that trial counsel was not deficient for failing to
object to a flight instruction because the issue of flight was fairly raised by the evidence. The
Petitioner admits that he left the state after the domestic assault arose and concedes that the
flight instruction would be proper regarding that offense. However, he contends that this
instruction allowed the jury to improperly infer that the Petitioner was also guilty of the
sexual assault charges because the instruction was not specifically restricted to the domestic
assault charge. As previously mentioned, trial counsel made a strategic decision not to sever
the cases, with the Petitioner’s assent, and this decision resulted in all of the offenses being
tried together. Because the pattern jury instruction on flight is general and the issue of flight
was fairly raised by the evidence, even if trial counsel had objected to the instruction, it is
highly unlikely that such an objection would have been sustained.6 Therefore, trial counsel
was not deficient for failing to object to the flight instruction.
CONCLUSION
Based on our review of the record and the applicable law, we affirm the judgment of
the post-conviction court denying relief.
_________________________________
D. KELLY THOMAS, JR., JUDGE
6
The post-conviction court noted that there was sufficient evidence because all the counts were tried
together, and “testimony from other witnesses indicated Petitioner was aware of the sexual assault
allegations.”
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