Donald Wayne McCall v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 1, 2015 at Nashville
DONALD WAYNE MCCALL v. STATE OF TENNESSEE
Appeal from the Circuit Court for Crockett County
No. 4256 Clayburn Peeples, Judge
No. W2015-01171-CCA-R3-PC - Filed February 19, 2016
_____________________________
Donald Wayne McCall (“the Petitioner”) filed a Petition for Post-Conviction Relief,
alleging ineffective assistance of counsel. Following a hearing, the post-conviction court
denied relief. Discerning no error, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Justin P. Jones, Brownsville, Tennessee, for the appellant, Donald Wayne McCall.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Garry G. Brown, District Attorney General; and Hillary Parham, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Trial
The Petitioner was convicted of rape of a child and two counts of aggravated
sexual battery and sentenced to an effective term of eighty years at 100% service in the
Department of Correction. State v. Donald Wayne McCall, No. W2013-01501-CCA-R3-
CD, 2014 WL 2993864, at *1 (Tenn. Crim. App. June 30, 2014).1 On direct appeal, this
court affirmed the judgments of the trial court. Id.
The underlying facts were recited by this court on direct appeal as follows:
The [Petitioner] was convicted of the rape and aggravated sexual
battery of J.M., the [Petitioner]‟s niece, and the aggravated sexual battery of
K.P., the [Petitioner]‟s great niece. At the trial, J.M.‟s father, who was also
K.P.‟s grandfather, testified that on July 4, 2011, he hosted a family
gathering at his house. He said that sometime after the July 4 holiday, he
saw the [Petitioner], who was his brother, and the victims in the swimming
pool. He said that J.M. was sitting on the [Petitioner]‟s left leg and that
K.P. was sitting on the [Petitioner]‟s right leg. He told the victims to get
off the [Petitioner] and to swim or to get out of the pool. He said he left the
area and began working in the yard. He said he saw the victims and the
[Petitioner] alone in the pool once after that day.
On cross-examination, J.M.‟s father testified that the first time he
saw the [Petitioner] and the victims in the swimming pool was on Saturday
after the July 4 holiday. He said that the second time he saw them in the
pool was about one week later and that after that day, the victims no longer
wanted to swim. He said that when he learned of the allegations, he talked
to two county sheriff‟s deputies, who called Detective Curtis. He said he
took J.M. to the hospital to be examined about two or three months after he
learned of the allegations. He said that he took J.M. to a woman he
identified as Ms. Anita for counseling but that he did not like Ms. Anita‟s
talking to J.M.
J.M. testified that she was born on August 2, 1998, and that she was
twelve years old in July 2011. She identified her parents and said that K.P.
was her niece and that the [Petitioner] was her uncle, although she had
known the [Petitioner] less than one year in July 2011. She said that
although she did not recall the date on which the incidents occurred, they
occurred after July 4th.
J.M. testified that on the first day she, K.P., and the [Petitioner] were
in the swimming pool, they played and splashed the [Petitioner]. She said
1
To assist in the resolution of this proceeding, we take judicial notice of the record from the
Petitioner‟s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn.
2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
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the [Petitioner] asked them, “You want to know what happens when you
splash me?” She said she splashed him again, and the [Petitioner] grabbed
her breast. She did not know if K.P. saw the [Petitioner] grab her breast.
She said they continued to play and splash the [Petitioner], and he grabbed
her breast “most of the time.” She thought the [Petitioner] should not have
grabbed her there and said he also touched her “crotch area” over her
bathing suit. She said the first time the [Petitioner] touched her private area
was when she held onto the side of the pool. She said they were playing a
game in which she and K.P. held onto the side of the pool, and the
[Petitioner] attempted to pull them from the side. She recalled holding onto
the side of the pool and the [Petitioner]‟s reaching and touching her private
area.
J.M. testified that the [Petitioner] also touched her private area when
she sat on his knee. She said the [Petitioner] had his hands under the water
and touched her and K.P. “down there.” She said she saw the [Petitioner]
touch K.P. She said that at one point, she put on goggles to determine if the
[Petitioner] was touching K.P. She said that before she went under the
water with the goggles, she suspected the [Petitioner] was touching K.P.
because K.P. yelled, “[I]t was an inappropriate place to touch.” She said
that the [Petitioner] left the pool to smoke a cigarette and that she and K.P.
left a few minutes later. She said that the [Petitioner] asked her if she knew
not to tell anyone and that she “nodded her head yes.” She said K.P. was a
few feet away.
J.M. testified that she and K.P. talked about what happened and
discussed whether to report the [Petitioner]‟s touching them but that they
decided not to tell anyone because they feared J.M.‟s father would not
believe them. She said that previously, the [Petitioner] told her father that
she made a “smart comment” to the [Petitioner], that she denied making the
comment, and that her father believed the [Petitioner].
J.M. testified that the following day, the [Petitioner] came to her
house to help her father with some repairs. She said that she and K.P. were
swimming when the [Petitioner] arrived, that the [Petitioner] entered the
pool after he finished helping her father, and that “it happened again.” She
said the [Petitioner] placed her on his lap and touched her private area with
his hand beneath her bathing suit. She said the [Petitioner] inserted his
finger into her vagina “a couple of times.” She said her father began
mowing the yard after he and the [Petitioner] finished the repairs. She did
not recall the [Petitioner]‟s saying anything during the incident and said
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K.P. was on the other side of the pool at the time. She said that the
[Petitioner] attempted to place her hand on his crotch a couple of times but
that she “jerked” her hand away. She said they all left the pool because it
began to rain. She did not see the [Petitioner] touch K.P. that day and said
the [Petitioner] drove K.P. home.
J.M. testified that she and K.P. discussed again whether they should
tell anyone about the [Petitioner]‟s touching them but denied that they
discussed the details of what occurred. She said that the following
Saturday, the [Petitioner] came to her house to repair her sister‟s Jeep. She
said her mother sent her outside to ask the [Petitioner] a question. She said
that she complied and that when she returned, her mother asked why she
was hateful to the [Petitioner]. She said her mother stated, “It‟s not like
he‟s ever touched you or anything like that, right?” She said she broke
down, cried, and told her mother what occurred. She said that her mother
called her father and that she and her mother calmly walked to the car, left
the house, and met K.P. and her mother at the library.
On cross-examination, J.M. testified that she wore a one-piece
swimsuit when the incidents occurred. She agreed the incidents occurred
on a Wednesday and a Thursday and denied they occurred on a Saturday.
Regarding the first incident, she agreed the [Petitioner] first touched her
when they were splashing around in the swimming pool. She did not know
how many times the [Petitioner] touched her breast and said he touched her
private area three or four times. She denied knowing why she and K.P.
stayed in the pool that day but said they first thought it was an accident and
“freaked out” when the [Petitioner] touched their crotch areas.
J.M. testified that the [Petitioner] wore his “street” clothes in the
swimming pool on the second day. She said she and K.P. stayed in the pool
because J.M.‟s father was outside mowing the lawn and thought the
[Petitioner] would stay away from them. She described how the
[Petitioner] moved her swimsuit to the side and “put his hand in.” When
asked why she did not leave, she said she was scared, did not know what to
do, and froze. She said she was “pretty sure” the [Petitioner] attempted to
put her hand on his crotch area because he pulled her hand to “his crotch
area.” She said that her hand touched his jeans and that she quickly jerked
her hand away. She denied getting into the pool with the [Petitioner] after
the incidents occurred.
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J.M. testified that she put on the goggles before she and K.P. sat on
the [Petitioner]‟s knees. She did not know of any incidents involving K.P.
after the first day. When confronted with her previous testimony, she
denied saying that she and K.P. decided not to tell anyone for any other
reason than fearing J.M.‟s parents would not believe them. She denied K.P.
said “it” did not happen to her. She denied she thought her parents would
not believe her because she had been in trouble at school.
J.M. testified that she and K.P. were in the swimming pool a couple
of hours each day. She said that K.P. wore shorts over her swimsuit on the
first day and that she wore a swimsuit with a skirt attached to it. She said
she was not wearing shorts when the [Petitioner] inserted his finger into her
vagina but did not recall exactly what she wore. She knew the [Petitioner]
touched her first because he had already touched her breast and crotch area
before K.P. yelled that the [Petitioner] was being inappropriate. She agreed
she told her mother what occurred in October 2011. She said she and K.P.
agreed never to talk about the incidents and to attempt to forget what
occurred. She said she told her mother what occurred because there was
something about the way her mother asked her. She said she liked to write
stories, including fantasies.
K.P. testified that she was born on November 24, 1999, that she was
eleven years old at the time of the incidents, and that the [Petitioner] was
her great uncle. She said that in July 2011, she had known the [Petitioner]
for about one year. She said that a few days after July 4, 2011, the
[Petitioner] touched her. She said that she, J.M., and the [Petitioner] were
in J.M.‟s swimming pool when he touched her. She said that the
[Petitioner] told her that he was tired from playing in the pool and that
although he did not leave the pool, he placed her on his lap. She said J.M.
was on the other side of the pool at the time. She said the [Petitioner]
touched her crotch area but denied he moved his hands around. She said
the [Petitioner] also grabbed her breasts after she splashed him. She denied
the [Petitioner] touched her anywhere else that day.
K.P. testified that the [Petitioner] touched her on other occasions but
denied that he attempted to make her touch him. She said the [Petitioner]
told her not to tell anyone about the touching. She said that after they got
out of the pool, the [Petitioner] took her home. She did not recall anyone
else being at the house that day.
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K.P. testified that the following day, she returned to J.M.‟s house
and swam in the pool. She said the [Petitioner] touched her breast and
crotch area like he did the previous day. She recalled J.M.‟s father mowing
the lawn when they were in the pool. She said she saw the [Petitioner]
touch J.M. when she put on goggles and went underwater, which she did to
determine what the [Petitioner] was doing to J.M. She said that she saw the
[Petitioner] touch J.M.‟s crotch area underneath J.M.‟s swimsuit. She said
the [Petitioner] told them not to tell anyone about the incident. She denied
that she and J.M. talked about the details of the incident but said they
discussed if they should tell someone. She said that J.M. wanted to tell
someone but that K.P. thought it was an accident. She said she did not
want to tell anyone. She stated that she ultimately told her mother about
the incidents when her mother asked if the [Petitioner] had ever touched
her. She said that after she told her mother what occurred, she and her
mother met J.M. and J.M.‟s mother at the library.
On cross-examination, K.P. testified that she did not recall whom the
[Petitioner] touched first, but she thought he touched her first. She said she
and J.M. were sitting on the [Petitioner]‟s knees at the same time. She said
that they were in the swimming pool for about two or three hours but that it
was “almost all day.” She clarified that it seemed as though they were in
the pool for two or three hours but that it was all day. She said the incident
on the first day occurred late in the day. She agreed she did not tell anyone
about the incidents and said nothing seemed inappropriate to her.
K.P. testified that at the end of the first day, she and J.M. became
hungry and left the swimming pool and that the [Petitioner] remained in the
pool. She said they “kind of” got out of the pool because of the
[Petitioner]‟s touching them. She said the [Petitioner] did not touch her
when he drove her home that day. She said that the [Petitioner] was living
with her family at the time of the incidents, that they played cards in his
room, and that he never touched her when they played cards.
K.P. testified that on the second day, the [Petitioner] was not in the
swimming pool when she and J.M. entered the pool. She said the
[Petitioner] was at J.M.‟s house to assist J.M.‟s father repair the
lawnmower. She agreed she invited the [Petitioner] to swim with them
because she thought his touching them the previous day was an accident.
She agreed, though, she used goggles to determine if the [Petitioner] was
touching J.M. the same way he was touching her. When presented with her
previous testimony, she stated that she did not recall saying she saw the
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[Petitioner] touch J.M. when she was wearing goggles underwater, rather
than she put on the goggles with the purpose of determining if the
[Petitioner] was touching J.M.
K.P. testified that she never got in the swimming pool with the
[Petitioner] after the incidents. She said she never told anyone what
occurred until her mother approached her about it in October 2011. She
denied talking to J.M. in October about the incidents. She agreed she
continued to think in October that the touching was accidental. She did not
recall her previous testimony in which she stated that the [Petitioner]
attempted to make her touch him. She denied her father or J.M.‟s father
ever swam with her and J.M.
J.M.‟s mother, who was K.P.‟s step-grandmother, testified that she
was home the two days in which J.M. and K.P. swam with the [Petitioner].
She said she first learned of the allegations in October 2011 when the
[Petitioner] was at her house repairing a car. She asked J.M. to go outside
and ask the [Petitioner] a question related to car parts. She said J.M. did
not want to talk to the [Petitioner], although she told J.M. to do it anyway.
She said J.M. returned, was upset, and did not want to go outside anymore.
She said she was confused and asked J.M. why she was behaving this way.
She said that she told J.M., “It‟s not like he‟s ever touched you or nothing,”
and that J.M. began to cry. She said that she asked J.M. if the [Petitioner]
had touched her and that J.M. cried. J.M. told her that the [Petitioner]
touched her between the legs when J.M.‟s mother was inside the house.
She said J.M. told her that the [Petitioner] touched K.P., too.
J.M.‟s mother testified that she called her husband, who called
K.P.‟s mother. She denied J.M. and K.P. talked from the time J.M. told her
about the allegations to K.P.‟s telling her mother about the allegations. She
said that after she and J.M. met K.P. and her mother at the library, they
went to the police station. She said that after the July 4 holiday, J.M. was
different when the [Petitioner] came to her house. She said that anytime the
[Petitioner] came to their house, J.M. put on long sleeves and pants. She
said J.M. refused to swim, although she loved swimming, and disrespected
the [Petitioner].
On cross-examination, J.M.‟s mother testified that she convinced
J.M. to go swimming with her once after the incidents occurred. She said
she equated J.M.‟s changing her clothes when the [Petitioner] was at their
house and her disrespect toward the [Petitioner] to J.M.‟s adolescent
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attitude. She agreed J.M. and K.P. talked to her after their trial testimony
but denied discussing the substance of their testimony. She said that she
recalled walking outside the house during the relevant days and that she
thought J.M., K.P., and the [Petitioner] were having a good time. Although
she could not recall whether it was the first or second day, she said J.M.
entered the house and stated she was done with swimming.
Upon this proof, the [Petitioner] was convicted of rape of a child of
J.M., aggravated sexual battery of J.M., and aggravated sexual battery of
K.P. The trial court sentenced the [Petitioner] as a Range II, multiple
offender to forty years for the child rape conviction and to twenty years for
each aggravated sexual battery conviction. The court ordered consecutive
sentences, for an effective eighty-year sentence at 100% service.
Id. at *1-5.
Post-Conviction Proceedings
The Petitioner filed a pro se petition for post-conviction relief and, after the
appointment of counsel, an amended petition was filed. Although the Petitioner raised
numerous allegations of ineffective assistance of counsel in his petitions, on appeal he
limits himself to arguing that counsel was ineffective for: (1) failing to confer adequately
with the Petitioner regarding trial preparation; (2) failing to call two witnesses requested
by the Petitioner; (3) refusing to allow the Petitioner to testify; (4) failing to provide the
Petitioner with discovery; and (5) failing to file pre-trial motions.2 The State argues that
the post-conviction court properly found that the Petitioner failed to establish either
deficient performance or prejudice.
The Petitioner testified that he was incarcerated in the Crockett County Jail before
trial. He stated his counsel would come to see him “almost every time just before docket
call before we had to come to [c]ourt” but that “mostly all he wanted to talk about was a
plea agreement.” He estimated that his attorney came to see him four to five times. The
offer tendered by the State was for him to plead guilty to two counts of sexual battery in
return for a sixteen-year sentence. He stated he received no discovery from his counsel.
Although the testimony of the Petitioner is confusing, the Petitioner appears to claim that
counsel had a copy of a protective order concerning a forensic interview conducted by the
2
The Petitioner was initially represented by the public defender, who filed a motion for
discovery. After discovering a conflict, the public defender was allowed to withdraw and trial counsel
was appointed.
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Department of Children‟s Services (DCS) but that the Petitioner was never able to view
the forensic interview file or to read a transcript of the interview.3
The Petitioner said he provided his attorney with the names of two witnesses, Josh
and Jennifer Potts, both of whom had been subpoenaed by the State. The Petitioner
wanted them called as witnesses to testify that J.M. had lied to her father in the past “to
get out of trouble at school[.]” We note from the direct appeal record that J.M.‟s father
testified at the trial and that he was not asked about the allegations that J.M. had lied to
him to get out of trouble. Petitioner also requested trial counsel to obtain the school
records of J.M. Although his trial counsel was able to get a copy of the school records
shortly before trial, he was precluded from introducing them by the trial court. The
Petitioner claimed he told trial counsel about the records a month before trial but that trial
counsel did not get them until a few days before trial. The Petitioner claimed if trial
counsel had gotten the records earlier that he may have been able to have them admitted
as evidence. The Petitioner testified that his attorney failed to file a motion for discovery
and therefore failed to get exculpatory evidence from the State that would have shown the
discrepancies in the victims‟ allegations.
The Petitioner said he and his attorney did not discuss the State‟s evidence or trial
strategies. He claimed he told trial counsel “from day one” that he wanted to testify and
that after the State completed its proof, that he again told trial counsel during the court
recess that he wanted to testify. The Petitioner stated that when court reconvened, trial
counsel and the assistant district attorneys approached the bench and talked to the judge
and that when trial counsel came back to the table, he asked: “Well, am I going to
testify[?]” The Petitioner said “[trial counsel] looked at me and he said „You‟re not.‟”
He said he wanted to testify to show a motive for the victims making up the allegations.
He said he had previously seen pictures posted on J.M.‟s Facebook and that the day
before the allegations were made, he stopped by J.M.‟s father‟s house and told J.M. that
he had “found another one of them pictures on your Facebook” and “I‟m gonna [sic] tell
your dad tomorrow evening.” He said J.M. and K.P. went around to the back of the
house, and the next morning the allegations were made.
Trial counsel testified that he received information from the State concerning what
the testimony of Mr. and Ms. Potts was expected to be if they were called to testify. He
stated that the testimony that the Petitioner wanted to illicit from Mr. and Ms. Potts was
hearsay. Trial counsel said he was provided “open file access” to the State‟s file and the
3
The transcript of the Petitioner‟s testimony states, “I received [from trial counsel] a [sic] Order
of Protection against forensic interview telling me that I could not have a copy of it, but I was supposed to
be allowed to review it, which I never looked at.”
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file of the State‟s investigator. He said he met with the Petitioner in an office at the jail
and showed him everything he had obtained through discovery. He said the Petitioner
read the reports and that he discussed the protective order with the Petitioner. He said
they discussed the strengths and weaknesses of the case. He explained that “the
similarity in the stories these two girls were telling and how typically an honest off-the-
cuff story doesn‟t tend to be so exact between two people.” Trial counsel stated that his
strategy was to point out how the two stories were too identical and argue that, coupled
with the lack of physical evidence, the jury should find that they were fabricated.
Trial counsel obtained records from DCS and, after the trial court performed an in
camera review, he reviewed the records. He sought to introduce the DCS records as an
exhibit, but the trial court refused to allow admission. The State had filed a notice of
intent to impeach the Petitioner with his prior convictions, and trial counsel did not want
the Petitioner to testify because that would open the door for the State to introduce his
significant criminal history.4 Trial counsel testified that, although he recommended that
the Petitioner not testify, he advised the Petitioner that it was the Petitioner‟s decision
whether to testify, and the Petitioner said “well, you‟re the attorney.”5 When the State
ended its proof, trial counsel announced that the Petitioner did not intend call any
witnesses, and the Petitioner “huffed.” Trial counsel said he knew of no exculpatory
evidence withheld by the State. Trial counsel stated that, based on his investigation, the
testimony of Mr. and Ms. Potts would not have been favorable to the Petitioner.
Following argument of counsel, the post-conviction court orally ruled on the
petition. The court found that trial counsel‟s defense strategy was “by far the very best
strategy that could have been employed in this particular case”; that trial counsel had
made “all pre-trial motion[s] that should have been made”; that “there was ample
communication between [trial counsel] and [the Petitioner]”; that trial counsel and the
Petitioner met to discuss strategy; and that trial counsel had preserved all possible issues
for appeal. Additionally, the post-conviction court noted that the Petitioner had not
offered any proof that the testimony of Mr. and Ms. Potts‟s would have been material or
admissible. The post-conviction court also stated that trial counsel‟s recollection of his
advice about the Petitioner‟s right to testify was “not only completely believable, but
consistent with what happened at the trial, and also appears to have been excellent advice,
which [the Petitioner] at the time took.” Further, the post-conviction court found that
trial counsel never told the Petitioner he could not testify. In sum, the post-conviction
4
The notice filed by the State is an exhibit and is in the technical record of the direct appeal. The
notice lists six class E felony convictions for various offenses and one class A felony conviction for
second degree murder. One of the E felony convictions was for sexual battery, and it was determined
before trial that that conviction could not be used by the State to impeach the Petitioner.
5
The direct appeal record does not contain a transcript of any Momon hearing.
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court held that “[trial counsel‟s] actions not only met but exceeded the requirements of
effective representation, not only in this area by in any area of the country.”
The post-conviction court then denied relief on the petition. This timely appeal
followed.
Analysis
In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial
court‟s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court‟s
conclusions of law and application of the law to factual findings are reviewed de novo
with no presumption of correctness. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.
2015).
When reviewing the trial court‟s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Fields, 40
S.W.3d at 456. Additionally, “questions concerning the credibility of the 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. (citing Henley, 960 S.W.2d at
579); see also Kendrick, 454 S.W.3d at 457.
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel‟s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not
satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
Additionally, review of counsel‟s 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.”
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Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-
guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that 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); see
also Baxter, 523 S.W.2d at 936.
Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel‟s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
Failure to Adequately Communicate and Prepare for Trial
On appeal, the Petitioner contends that trial counsel was ineffective because he
failed to adequately communicate with the Petitioner and prepare for trial. The Petitioner
testified that trial counsel met with him four or five times while he was incarcerated.
Trial counsel used the State‟s offer for open file discovery to find out what evidence the
State had against the Petitioner, obtained school records and the DCS records, and
formulated a trial strategy. Trial counsel testified that he discussed the State‟s evidence
and explained the trial strategy to the Petitioner on several occasions. The post-
conviction court found there was ample communication between counsel and the
Petitioner. The post-conviction court implicitly accredited trial counsel‟s testimony,
stating that it found trial counsel‟s “testimony was believable and consistent with what
happened at trial.” The Petitioner has failed to prove that trial counsel was deficient in
either communicating with him or in his trial preparation.
Failure to Call Two Witnesses Requested by the Petitioner
The Petitioner requested that trial counsel call Mr. and Mrs. Potts to impeach the
credibility of the victims. Trial counsel determined that the testimony the Petitioner
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wanted to illicit from the witnesses would have been inadmissible as hearsay and that
their testimony otherwise would have been unfavorable to the Petitioner. However,
neither Mr. Potts nor Ms. Potts testified at the post-conviction hearing. In cases where a
petitioner contends that trial counsel failed to present a witness in support of the
petitioner‟s defense, the petitioner must present such witness at the post-conviction
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Neither a trial
nor an appellate judge can speculate as to whether that witness‟s testimony would have
been favorable to the defense. Id. Therefore, the petitioner must “produce a material
witness who . . . would have testified favorably in support of his defense if called [at
trial]. Otherwise, the petitioner fails to establish the prejudice requirement mandated by
Strickland v. Washington.” Id. at 758. Because neither of the witnesses testified at the
post-conviction hearing, the Petitioner has failed to show that he was prejudiced by the
failure of trial counsel to call the two witnesses. See id. at 757-58. The Petitioner is not
entitled to relief on this ground.
Refusal to Allow the Petitioner to Testify
The Petitioner claims trial counsel refused to allow him to testify. Trial counsel
testified that the State would be allowed to present evidence of the Petitioner‟s extensive
criminal record, and he believed such evidence would undermine the Petitioner‟s
credibility and jeopardize the defense strategy. Trial counsel therefore recommended that
the Petitioner not testify but still advised the Petitioner that the decision rested with the
Petitioner. Trial counsel said the Petitioner decided not to testify. The post-conviction
court found the testimony of trial counsel credible and noted that trial counsel gave
“excellent advice.” We are bound by the post-conviction court‟s findings of fact and
judgments of credibility. Fields, 40 S.W.3d at 456. Therefore, we conclude that the
Petitioner has failed to show that trial counsel refused to allow the Petitioner to testify.
Failure to Conduct a Momon Hearing
Although not raised by the Petitioner in either this appeal or in the direct appeal,
we note that there was no Momon hearing conducted on the record during the trial of this
case. See Momon v. State, 18 S.W.3d 152 (Tenn.1999). Because defendants have a
constitutional right to testify, the right must be personally waived by the defendant. Id. at
163. Therefore, pursuant to Momon, trial counsel should have requested that the trial
court allow him to question the Petitioner in order to ascertain whether the Petitioner
knowingly, voluntarily, and intelligently waived his right to testify. See id. at 162-63.
Furthermore, a trial court bears the responsibility to “require” that a hearing be conducted
pursuant to the procedure outlined in Moman. Id. at 162. This court has previously
determined that “the failure to conduct a hearing pursuant to Momon to determine
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whether the Defendant did personally waive his right to testify was plain error.” State v.
Posey, 99 S.W.3d 141, 148 (Tenn. Crim. App 2002).
The Petitioner had the opportunity, personally or through counsel, to present the
failure to conduct a Momon hearing at trial, on direct appeal, and in this proceeding but
failed to do so. The Petitioner has waived a free-standing Momon claim in the post-
conviction proceedings by failing to raise the issue at trial or on direct appeal. Tenn.
Code Ann. § 40-30-106(g); Tenn. Sup. Ct. R. 28, § 2(D); Miqwon Deon Leach v. State,
No. W2004-01702-CCA-R3-PC, 2005 WL 1651654, at *7 (Tenn. Crim. App. July 14,
2005), perm. app. denied (Tenn. Dec. 5, 2005). However, we will address the issue of
whether trial counsel rendered ineffective assistance by failing to conduct a Momon
hearing. See Miqwon Deon Leach, 2005 WL 1651654, at *7. “When a petitioner argues
that his trial counsel‟s assistance was ineffective based on Momon violations, he or she
must establish that his counsel‟s performance fell below „the range of competence
demanded of attorneys in criminal cases,‟ and that counsel‟s ineffective performance
actually adversely impacted his defense.” Id. at *8 (citing Strickland, 466 U.S. at 693;
Baxter 523 S.W.2d at 936); see also Mario Deangalo Thomas v. State, No. W2004-
01704-CCA-R3-PC, 2005 WL 1669898, at * 3-4 (Tenn. Crim. App. July 18, 2005),
perm. app. denied (Tenn. Dec. 5, 2005).
Trial counsel‟s failure to follow the well-established procedure for conducting a
Momon hearing was deficient performance. See Miqwon Deon Leach, 2005 WL
1651654, at *8 (concluding “that trial counsel‟s failure to follow what was by the time of
Petitioner‟s trial a well-established procedure was deficient performance”). However, the
Petitioner has failed to show that he was prejudiced by trial counsel‟s failure to conduct a
Momon hearing. The Petitioner stated at the post-conviction hearing that he wanted to
testify about the victims‟ motives to fabricate the allegations. The trial strategy of the
defense had been to attempt to show the victims‟ statements were so identical that they
were contrived. From this standpoint, the Petitioner‟s testimony could have possibly
bolstered the defense. However, if the Petitioner testified, the State would have presented
proof of six prior felony convictions, including two petty larcenies, an escape from jail,
and second degree murder. The risk of substantial damage to the Petitioner‟s credibility
was great. Additionally, trial counsel testified at the post-conviction hearing that he
discussed with the Petitioner the possible benefits and dangers of the Petitioner testifying.
After trial counsel‟s motion to exclude some of the Petitioner‟s prior convictions was
denied, trial counsel met with the Petitioner and explained that the State could “use the
fact that you‟ve been in jail essentially all of your adult life for one crime or another,
including murder, to attack your credibility.” Trial counsel advised the Petitioner that in
his opinion “you run a stronger risk of doing more harm than good if you testify.” After
explaining that the Petitioner had to decide whether to testify, the Petitioner stated “[w]ell
you‟re the attorney,” thereby choosing not to testify. Therefore, this case, like Mario
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Deangelo Thomas, is distinguishable from Posey. See Mario Deangelo Thomas, 2005
WL 1669898, at *3. In Posey, there was no proof in the record that the defendant
knowingly and voluntarily waived his right to testify. Id. Conversely, in Mario
Deangelo Thomas this court noted that Mr. Thomas‟s trial counsel testified “that the
defendant made an informed decision not to testify[,]” and the post-conviction court
credited that testimony. Id. This court stated “[t]hus, the failure to conduct a Momon
hearing in this case is mere procedural error that does not „in and of itself support a claim
for deprivation of the constitutional right to testify.‟” Id. As stated above, in this case,
trial counsel advised the Petitioner that he could do more harm than good if he chose to
testify and the Petitioner responded, “Well, you‟re the attorney.” Therefore, we conclude
that the Petitioner has failed to show by clear and convincing evidence that trial counsel‟s
failure to conduct a Momon hearing adversely impacted his defense or deprived him of
the constitutional right to testify. See Miqwon Deon Leach, 2005 WL 1651654, at *8
(citing Strickland, 466 U.S. at 693). The Petitioner is not entitled to relief on this issue.
Failure to Provide the Petitioner with Discovery
Trial counsel testified that he had open file discovery with the State and that he
took documents to the Petitioner to read and discuss. Trial counsel testified that he
obtained school records and DCS records concerning the victims but that he was denied
being allowed to admit them by the trial court. The post-conviction court credited the
testimony of trial counsel. Additionally, the post-conviction court found that “there was
ample communication between [trial counsel] and [the Petitioner.]” The Petitioner has
failed to prove trial counsel‟s representation was deficient for failing to provide
discovery. He is not entitled to relief on this issue.
Failure to File Pretrial Motions
The Petitioner claims that trial counsel failed to file a pretrial motion for
discovery and by doing so failed to discover exculpatory evidence. Trial counsel testified
he was provided open file discovery and that he was unaware of any exculpatory
evidence. Further, the Petitioner did not present any exculpatory evidence at the post-
conviction hearing. See Black, 794 S.W.2d at 757-58. The Petitioner failed to show that
trial counsel‟s pre-trial representation was deficient or that he was prejudiced, and he is
entitled to no relief on this issue.
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Conclusion
For the aforementioned reasons, we affirm the judgment of the post-conviction
court.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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