Brian Adams v. State of Tennessee ( 2021 )

09/30/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 4, 2021
BRIAN ADAMS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 13-00657 John Wheeler Campbell, Judge
No. W2020-00958-CCA-R3-PC
The Petitioner, Brian Adams, filed a petition for post-conviction relief challenging his
convictions for rape of a child and aggravated sexual battery and the resulting ninety-year
sentence. The post-conviction court denied relief, and the Petitioner appeals. On appeal,
the Petitioner alleges that he received ineffective assistance of counsel because trial counsel
failed to adequately cross-examine the victim and failed to object to hearsay evidence from
hospital personnel. After our review, we affirm the judgment of the post-conviction court
denying the Petitioner relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JILL BARTEE AYERS, J., joined.
Benjamin Michael Israel, Memphis, Tennessee, for the appellant, Brian Adams.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson,
Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie
Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
TRIAL
Following a trial, the Petitioner was convicted of rape of a child and aggravated
sexual battery. See Tenn. Code Ann. §§ 39-12-504, -13-522. He was sentenced to a ninety-
year sentence. See State v. Brian Adams, No. W2015-02066-CCA-R3-CD, 2016 WL
5819219 (Tenn. Crim. App. Oct. 5, 2016).
At the trial, J.M., the six-year old victim, testified that around the time of the
incident, her mother moved her and her two brothers in with their grandmother. Adams,
2016 WL 5819219, at *1. The family lived with the grandmother for two to three months,
and the grandmother would watch the children while the victim’s mother worked. The
Petitioner was a friend of the victim’s grandmother and would visit the house often.
The victim testified that one evening, her grandmother left her in the bathroom after
a nightly bath and that the Petitioner entered the bathroom. Adams, 2016 WL 5819219, at
*1. The Petitioner placed the victim on the sink and touched and penetrated her vagina
with his hand. The victim stated that it was painful. The victim immediately told her
grandmother, and she assured the victim that she would tell the victim’s mother about the
incident.
The victim stated that at a later date, the Petitioner drove the victim, her brother, and
her grandmother to a cellular telephone store. Adams, 2016 WL 5819219, at *1. The
victim’s grandmother and brother exited the car, and the Petitioner drove the victim to the
side of the store. The Petitioner parked the car and led the victim behind the store. The
Petitioner then pulled his pants down and put his “thingy” in her mouth, and he kept it there
until he was finished “peeing.” The victim testified that the “pee” was “yellow” and
“gooey.” She also testified that his “wiener” went down after he finished “peeing.” The
Petitioner returned the victim to the car when he heard the grandmother exit the store. The
victim again told her grandmother about the incident. The victim asserted that she
discussed these events with several people over the course of about three years, including
her grandmother, her mother, her father, the staff at the Children’s Advocacy Center
(“CAC”), and the staff at the District Attorney’s Office.
The victim’s mother testified that the victim began to act differently after moving
out of her grandmother’s house. Adams, 2016 WL 5819219, at *1. The victim began to
cry when questioned by her mother, and the victim informed her mother that the Petitioner
had touched her. The victim’s mother was unaware of who the Petitioner was at the time.
Following the conversation, the victim’s mother took the victim to the hospital. Upon
arriving, the victim was examined by Dr. Karen Lakin. Dr. Lakin found no indication of
physical injury. The victim also reported to Dr. Lakin that the Petitioner had touched her.
The victim was also transported to the CAC where she was forensically interviewed
by Patricia Lewis. Adams, 2016 WL 5819219, at *1. The interview was recorded, and the
victim discussed specifics of the touching. Ms. Lewis testified at trial that during the
interview with the victim, the victim identified the cellular telephone store as a grocery
store, said that she could hear her grandmother exit the store, and explained that she stood
while the Petitioner was on his knees and inserted his penis into her mouth.
-2-
The victim’s grandmother testified on behalf of the Petitioner. Adams, 2016 WL
5819219, at *2. She asserted that she did not allow the Petitioner to be near the victim or
her brother while taking baths or changing clothes. She testified that she did not take the
victim to a cellular telephone store, but did recall leaving the victim alone in the car with
the Petitioner at a grocery store. She stated that the victim did not tell her of any
inappropriate incident with the Petitioner, but admitted that her memory was “not so good.”
At the time of the incident, the victim’s grandmother used mobility aides, including a cane,
scooter, and walker. The victim’s mother testified that she believed the victim’s
grandmother had serious memory issues, was not physically stable, and could not properly
care for herself without help.
Following the Petitioner’s convictions, he appealed. On direct appeal, the Petitioner
argued that his convictions should be overturned on the basis of insufficient evidence
because the victim’s testimony was “too full of inconsistencies and farfetched facts to
support his convictions.” Adams, 2016 WL 5819219, at *2. This court concluded that the
victim’s detailed testimony regarding how and where the Petitioner touched her in two
separate incidents was sufficient to support the Petitioner’s convictions. Id. at *3.
Additionally, this court observed that the victim had also reported these events to her
grandmother, her mother, a physician, and a CAC forensic interviewer and that the jury
was at liberty to accredit the testimony of these witnesses at trial. Id.POST-CONVICTION HEARING
The Petitioner filed a pro se petition seeking post-conviction relief on September 6,
2017, claiming ineffective assistance of counsel. Following the appointment of counsel,
an amended petition was filed on January 12, 2018, alleging that the Petitioner was denied
effective assistance of counsel because trial counsel: (1) gave “erroneous advice that
effectively deprived” the Petitioner of his right to testify; (2) “failed to perform a thorough
investigation”; (3) failed to timely file motions; (4) failed to impeach the victim; (5) failed
to call witnesses; (6) failed to object to prejudicial evidence; and (7) failed to object to
inadmissible hearsay. A second amended petition was filed on February 26, 2018, alleging
that the Petitioner was denied effective assistance of counsel because trial counsel failed to
meet with the Petitioner prior to trial, instructed the Petitioner not to speak to him during
the trial which prevented the Petitioner from raising “important factual issues,” and failed
to have the Petitioner’s competency evaluated.
At the post-conviction hearing, trial counsel testified that he had worked for the
Public Defender’s Office for ten years and had tried seven child rape cases. After trial
counsel was appointed, he reviewed all investigative notes and interviewed some of the
named witnesses. He recalled that a number of character witnesses had previously been
-3-
interviewed by a prior attorney, but trial counsel did not think any of the testimony from
these witnesses would be admissible at trial.
Trial counsel met with the Petitioner several times before trial and spoke at length
with the Petitioner about the Petitioner’s decision to testify. Trial counsel prepared the
Petitioner extensively concerning his eight prior sexual offenses and the risks of testifying.
Trial counsel’s defense strategy focused on the inconsistencies in the victim’s testimony
and forensic interview and inconsistencies in the victim’s mother and grandmother’s
testimony. Trial counsel cross-examined all witnesses at trial.
Trial counsel recalled that the victim and the Petitioner had lived in the same
neighborhood and that the victim’s parents and the Petitioner did not have a good
relationship. He also recalled that some neighbors were willing to support the Petitioner’s
theory of defense that the victim had been raped by someone else from the neighborhood.
Trial counsel had an investigator interview a potential witness, Debbie Paul. Ms. Paul
informed the investigator that “Black Brian” had touched the victim. Trial counsel was
unable to corroborate the claim. However, trial counsel obtained a statement from another
potential witness that “Black Brian” was not in the neighborhood at the time of the incident.
Trial counsel testified that the victim was actually examined by Dr. Kim Harris at
the hospital and the medical report obtained in discovery was signed by Dr. Harris. Trial
counsel asserted that he believed Dr. Lakin could testify to the medical report because of
“a business record exception.” At this point in the proceedings, the post-conviction court
made an oral finding that although Dr. Lakin did not physically examine the victim when
she was at the hospital, Dr. Lakin was qualified to testify about the hospital report because
she was an expert and the medical record was used to “form an opinion.”1
The Petitioner testified that he suffered from a number of mental health issues,
including schizophrenia, manic depression, post-traumatic stress disorder, and bipolar
disorder. He stated that he had surgery to remove a brain tumor in 2017. He asserted that
trial counsel told him that if he testified at trial, the State would be able to cross-examine
him about his prior convictions.
The post-conviction court denied the petition for post-conviction relief in a written
order dated July 2, 2020. The post-conviction court concluded that trial counsel was
prepared for trial, including engaging an investigator to find and interview witnesses,
reviewing all discovery materials, and crafting a reasonable trial strategy. In addition, the
1
The direct appeal opinion incorrectly states that Dr. Karen Lakin performed the physical examination of
the victim.
-4-
court noted that trial counsel met with the Petitioner to discuss and prepare for trial on
several occasions and that trial counsel introduced a witness at trial who contradicted the
victim’s statement. The court concluded that trial counsel’s strategy to focus on
inconsistencies while cross-examining the young and sympathetic victim was reasonable.
Additionally, the court determined that the Petitioner failed to present any evidence or
witnesses at the post-conviction hearing that could have possibly provided alternative
theories of defense. The court found that the Petitioner failed to provide evidence of his
poor or deteriorating mental health and did not find his testimony to be credible. Finally,
the court concluded that the Petitioner’s testimony was in direct contradiction to a jury-out
hearing at trial during which the Petitioner affirmed that he had made an informed decision
not to testify on his own behalf.
The Petitioner filed a timely notice of appeal. The case is now before us for review.
ANALYSIS
On appeal, the Petitioner argues that trial counsel was ineffective in cross-
examining the victim and failing to object to hearsay evidence presented by Dr. Karen
Lakin at trial. The State responds that the Petitioner has failed to prove that trial counsel
was ineffective.
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.” Tenn. Code Ann. § 40-30-103. Criminal Petitioners
are constitutionally guaranteed the right to effective assistance of counsel. Dellinger v.
State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner 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 Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993). “Because a petitioner must establish both prongs
of the test, a failure to prove either deficiency or prejudice provides a sufficient basis to
deny relief on the ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). The Strickland standard has 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).
Deficient performance requires a showing that “counsel’s representation fell below
an objective standard of reasonableness,” despite the fact that reviewing courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court reviews
-5-
a lawyer’s performance, it “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the
conduct from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319,
326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). We will not deem counsel to have
been ineffective merely because a different strategy or procedure might have produced a
more favorable result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We
recognize, however, that “deference to tactical choices only applies if the choices are
informed ones based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).
Although trial counsel does not have an absolute duty to investigate particular facts
or a certain line of defense, counsel does have a duty to make a reasonable investigation or
to make a reasonable decision that makes a particular investigation unnecessary.
Strickland, 466 U.S. at 691. Counsel is not required to interview every conceivable
witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). Furthermore,
no particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel. Rather,
courts must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct, and
judicial scrutiny of counsel’s performance must be highly deferential.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations omitted).
A reasonable investigation does not require counsel to “leave no stone unturned.”
Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, 2009 WL 1905454, at *49
(Tenn. Crim. App. July 1, 2009). Rather, “[r]easonableness should be guided by the
circumstances of the case, including information provided by the Petitioner, conversations
with the Petitioner, and consideration of readily available resources.” Id. The United
States Supreme Court has said, “[I]nquiry into counsel’s conversations with the Petitioner
may be critical to a proper assessment of counsel’s investigation decisions, just as it may
be critical to a proper assessment of counsel’s other litigation decisions.” Strickland, 466
U.S. at 691.
As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must establish that
his counsel’s deficient performance was of such a degree that it deprived him of a fair trial
and called into question the reliability of the outcome.” Pylant v. State, 263 S.W.3d 854,
-6-
869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)). “A reasonable
probability of being found guilty of a lesser charge . . . satisfies the second prong of
Strickland.” Id.The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we are
bound by the post-conviction court’s findings of fact unless we conclude that the evidence
in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456
(Tenn. 2001). Additionally, “questions concerning the credibility of witnesses, the weight
and value to be given their testimony, and the factual issues raised by the evidence are to
be resolved” by the post-conviction court. Id. Because they relate to mixed questions of
law and fact, we review the post-conviction court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo
standard with no presumption of correctness. Id. at 457.
We agree with the post-conviction court that counsel was not deficient in his cross-
examination of the victim. Trial counsel testified that he had been working for the Public
Defender’s Office for ten years and had worked on seven child rape cases before
representing the Petitioner. He specifically testified that his strategy to cross-examine the
victim was to point out inconsistencies in her forensic interview and her trial testimony.
Trial counsel was aware that the victim was very young and very sympathetic. The
Petitioner does not specify what further cross-examination or impeachment would have
yielded. The record supports the post-conviction court’s findings that counsel’s cross-
examination was tactical and based on adequate preparation. The Petitioner is not entitled
to relief on this basis.
At the post-conviction hearing, the Petitioner failed to identify specific testimony
by Dr. Karen Lakin that trial counsel should have objected to as hearsay. We cannot review
evidence that was not presented at the post-conviction hearing for deficient performance.
Despite the lack of evidence, the post-conviction court did make an oral finding that a
hearsay exception existed for Dr. Lakin’s testimony.
An exception to the rule against hearsay is set out in Tennessee Rule of Evidence
803(4): “Statements made for purposes of medical diagnosis and treatment describing
medical history; past or present symptoms, pain, or sensations; or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to diagnosis
and treatment.” In State v. Livingston, 907 S.W.2d 392 (Tenn. 1995), our supreme court
held as follows:
-7-
The rationale for the medical diagnosis and treatment hearsay exception is
that such declarations are deemed reliable because the declarant is motivated
to tell the truth; that is, the declarant makes the statements for the ultimate
purpose of receiving proper diagnosis and treatment. Generally, (1) the
statement must be made for medical diagnosis and treatment; (2) the
statement may include extensive information about symptoms, pain, or
sensation; and (3) the statement is admissible only “insofar as reasonably
pertinent to diagnosis and treatment.
We agree with the post-conviction court that counsel was not deficient in his failure
to object to Dr. Karen Lakin’s testimony regarding the victim’s physical examination at
the hospital. Even if Dr. Lakin did not perform the examination, the statements were made
to diagnose or treat the victim and would qualify as an exemption to the hearsay rule.
CONCLUSION
Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.
D. KELLY THOMAS, JR., JUDGE
-8-