John R. Thompson v. State of Tennessee ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 18, 2008
JOHN R. THOMPSON v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Bedford County
No. 10595 J. B. Cox, Judge
No. M2007-02035-CCA-R3-PC - Filed July 3, 2008
A Bedford County jury convicted the Petitioner of seventeen crimes involving his sexual contact
with three minor girls, and this Court affirmed those judgments on appeal. The Petitioner filed a
petition for post-conviction relief alleging that he failed to receive the effective assistance of counsel.
The post-conviction court denied the petition, and, after a thorough review of the record and
applicable law, 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 W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE, JJ., joined.
Hershel D. Koger, Pulaski, Tennessee, for the Appellant, John. R. Thompson.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel
West Harmon, Assistant Attorney General; Chuck Crawford, District Attorney General; Michael D.
Randles and Ann L. Filer, Assistant District Attorneys General, for the Appellee, the State of
Tennessee.
OPINION
I. Facts
The Petitioner’s seventeen convictions arose out of two separate trials. On direct appeal,
this Court reviewed both trials and summarized the facts from the first as follows:
B.C. testified that she was born on September 27, 1988, and, at the time of
trial, she was in eighth grade and was living with her grandparents. She said that her
mother was married to the Defendant and had been for several years. She said that,
in the past, she would go and visit her mother and would sometimes spend the night.
She explained that her grandparents would take her to her mother’s house and then
they would pick her up the next day. B.C. testified that, between August and
September of 2001, she would visit her mother approximately every other week.
B.C. said that, at the time of her visits, the Defendant was living with her mother and
her mother was working at the Best Western Motel.
B.C. testified that, between August and September of 2001, the Defendant
asked her to pose for some pictures when her mother was not there. She explained
that one night, when she spent the night at her mother’s house, she slept in the living
room on the couch. She said that, around 10:00 p.m., the Defendant woke her up and
asked if he could take some pictures. She said that she asked the Defendant where
her mother was, and the Defendant told her that her mother had gone to work, which
surprised her. She then asked the Defendant where her brother was, and the
Defendant told her that he was at a friend’s house. B.C. testified that she told the
Defendant that he could take some pictures, and he got his camera, which was
grayish-silver with a screen on the back. B.C. said that the first few pictures were
just normal pictures, and the Defendant asked her to lay on, or stand next to, the
couch. B.C. said that she was wearing sweat pants and a shirt.
B.C. said that the Defendant then went to her mother’s room, retrieved what
he called a “lingerie outfit,” and asked her to put it on so that he could take some
more pictures. She said that she went to the bathroom and changed into the outfit,
and, when she came out of the bathroom, the Defendant took more pictures of her.
She said that he then he asked her to pull down part of the outfit so as to expose her
breast.
B.C. testified that, on another occasion, the Defendant woke her up around
1:00 a.m. and asked her to pose in lingerie again. She said that he had the same
camera and again asked her to remove part of the lingerie to expose her breasts. She
explained that he continued to take pictures while her breasts were exposed. B.C.
testified that, after taking more photographs, the Defendant asked her to engage in
oral sex with him. She said that he unzipped his pants and exposed his penis and that
he put his penis in her mouth. B.C. testified that, during this event, the Defendant
rubbed the outside of her vagina with his hand and then “put his mouth down there.”
She said that, when the Defendant touched her, she was wearing sweat pants and
underwear, and he touched her underneath both of these articles of clothing, so that
his bare skin was on her bare skin. When the Defendant touched his mouth to her
“private part,” he “moved it around for a little while. Then he looked up at the clock
and said [B.C.’s] mom w[ould] be home soon.” She testified that the Defendant then
told her to watch television, and he went into the computer room. B.C. said that all
of this happened before her thirteenth birthday. B.C. testified that she was scared
when she and the Defendant were engaged in this activity and the Defendant told her
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“Don’t worry. It is okay. . . . Most fathers do this to their daughters.” B.C. said that
she did not tell her mother because she was “scared” of the Defendant.
On cross-examination, B.C. said that her grandmother has never liked the
Defendant. She said that she and her grandmother previously had conversations
about how “sorry” the Defendant was. She testified that she did not make a
statement to police about these events until June 14, 2002, which was nine or ten
months after they occurred. She said that she never refused to go over to her
mother’s house. B.C. testified that, even though she lived at her grandmother’s
house, which was over an hour from her mother’s house, she was still afraid to tell
her grandmother what had happened. She also said that she originally denied the
events when Lieutenant Hord first asked her about them. B.C. conceded that she
never saw any of the pictures that the Defendant took of her, and she was unsure
whether there was any film or a disk in the camera. B.C. said that she never had
intercourse with the Defendant and that his fingers never went inside her. B.C. also
said that, at the time of these incidents, and for a long time before them, she did not
like the Defendant because he forced her mother to move away from her. She denied
that she was angry that her brother lived with her mother and that she lived with her
grandmother.
On re-direct, B.C. said that she did not visit her mother at all in 2002. She
also said that when Lieutenant Hord first asked her about the Defendant’s conduct,
her grandmother was in the room and could hear everything. It was not until her
grandmother stepped out that she told the officer about what the Defendant had done.
Upon the Court’s questioning, B.C. said that she never saw the pictures that
were taken of her, but she knew that the Defendant took pictures of her with a
camera.
K.J. testified that she was born on November 27, 1989, and in June of 2002
she was twelve years old. She said that the Defendant had been friends with her
family since she was born and that, because of this friendship, she would sometimes
spend time at the Defendant’s house. K.J. testified that between June 1 and June 8
of 2002 she spent several days in a row at the Defendant’s house because her
grandfather had died. K.J. said that sometimes the Defendant’s wife was there, but
that sometimes she would leave to go to work at the Best Western Motel in
Murfreesboro.
K.J. testified that, while she was staying at the Defendant’s house, he asked
her to come out to the shed, which she did. She said that she went into the shed, and
the Defendant told her to take her clothes off, which she did. He then told her to play
with herself while she was sitting on a bucket that he put her on, and she complied.
K.J. said that the Defendant then started playing with her by putting her fingers inside
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of her vagina and “moving them around.” She said that the Defendant then put his
tongue inside of her vagina and “moved it around.” She also said that the Defendant
licked her breasts.
K.J. testified about the “next time” and said that the Defendant did the same
thing to her again in the shed after he asked her to go there with him. She said that
he again inserted his fingers and tongue in her vagina and that he “licked around on
[her breasts] and sucked them.” K.J. said that the Defendant told her not to tell
anyone or he would get into trouble. K.J. testified that the Defendant told her that
he was going to make her a model, and he took pictures of her. She said that the
Defendant told her to take her clothes off. K.J. said that, the day after the Defendant
sexually interacted with her twice, he took pictures of her. K.J. testified about a third
incident in the shed, that happened after the Defendant took pictures of her when he
“put his fingers inside her [vagina] and moved them around” and did the same with
his tongue. She said that this again occurred in the shed. K.J. said that the Defendant
then brought her outside beside the shed and put her on a chair. He then proceeded
to digitally and orally penetrate her and then engaged in intercourse with her. K.J.
told the Defendant that this hurt her, but he did not stop. K.J. testified about a fourth
incident in the shed where the Defendant digitally and orally penetrated her and
“sucked on [her] breasts.”
K.J. also testified about a fifth sexual encounter with the Defendant that
occurred inside of the Defendant’s house. She said that the Defendant told his son
to go outside and then told K.J. to go to his bedroom. K.J. testified that the
Defendant’s wife was at work during this encounter. She said that the Defendant
took her clothes off of her while she was laying on the bed on her back. The
Defendant then took his clothes off and proceeded to digitally penetrate K.J. while
asking her if she liked it. K.J. said that the defendant then orally penetrated her, and
then he engaged in intercourse with her. She said that she told the Defendant again
that this hurt, but he did not stop. K.J. testified that the phone rang, and the
Defendant answered the phone. She said he then came back to the bedroom and
began masturbating; then he ejaculated on her stomach. K.J. testified that the
Defendant told her to go the living room, which she did. K.J. said that she was still
naked in the living room and that the Defendant placed her on the couch and then put
in a pornographic movie on the television. The Defendant then digitally and orally
penetrated her and then again engaged in intercourse with her. She said that this
encounter ended when the phone rang again, and the Defendant said it was time for
his wife to come home from work.
K.J. testified about another incident that occurred at the motel where the
Defendant’s wife worked, which was located in Murfreesboro, Tennessee. She said
that she was at the motel with the Defendant’s wife because she wanted to “get away
from [the Defendant].” K.J. said that she went swimming in the motel pool and that,
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after she got out of the pool and was drying off, the Defendant “showed up.” She
said that the Defendant had a key to the motel rooms, and she went with him to check
the rooms to see which ones were clean. K.J. said that she and the Defendant then
entered room number 117, which was located the farthest away from the office by the
dumpster, and that the Defendant began to photograph her. She said that, at this
time, she had on a two piece bikini and a t-shirt. She testified that the Defendant told
her to smile, and she did not want to but he told her to “do it for the camera.” K.J.
testified that, at some point, the Defendant told her to take her clothes off. While the
Defendant was taking pictures, he digitally and orally penetrated her, and then he
engaged in intercourse with her. K.J. said that the Defendant took a picture of his
penis entering K.J.’s vagina while he was standing behind her. Many of the pictures
about which K.J. testified were admitted into evidence during the trial.
K. J. testified that, shortly after this last incident, her visit with the Defendant
and his wife was over, and she went home. K.J. said that, when she went home, she
told her mother what had happened. K.J. testified that she then spoke with police
about her interactions with the Defendant.
On cross-examination, K.J. testified that she had been going to the
Defendant’s house for approximately five years and that, prior to these events,
nothing had happened between the them. K.J. said that the shed, where many of
these events occurred, was located on the side of the house and was visible from the
road. She said that there are neighbors that live back behind the shed. She testified
that the shed has one door on it that locks. K.J. testified that she did not know where
the Defendant’s stepson was during these events, and, during one of the events, the
Defendant’s wife and his son were both in the house. K.J. testified that she told the
Defendant’s stepson what the Defendant had done and that the stepson said that he
knew it had been happening all along. She said that, after the morning when the
Defendant first had a sexual encounter with her, she again went to the shed with him
that evening, but did not think that he would do the same things to her. K.J. testified
that every time she attempted to call home the Defendant was around her, so she
waited until she got home to tell her mother. K.J. conceded that the Defendant never
threatened her.
Rebecca Hord, a lieutenant with the Bedford County Sheriff’s Department,
testified that her chief notified her that there was a possible child rape case, and he
asked her to interview the witnesses and to assist in investigating the case. She said
that, as part of her investigation, she interviewed K.J. After interviewing K.J., she
determined that the Defendant had a stepdaughter, B.C, and she interviewed B.C. as
part of her routine investigation. Lieutenant Hord said that her interview with B.C.
lasted from 11:07 a.m. until 11:59 a.m.
The lieutenant said that, as part of her investigation, she went to the
Defendant’s home with the cooperation of the Defendant’s wife. Lieutenant Hord
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said that, at some point, she obtained the Defendant’s wallet, which contained a
master key to the Best Western Motel. The lieutenant testified that she also seized
a computer from the Defendant’s home to find out if there was anything relevant to
any crime stored on the computer. She said that she made arrangements with the
Tennessee Bureau of Investigation (“TBI”) office in Nashville, specifically with
Agent Tom Davis who is the computer specialist. The officer testified that Agent
Davis looked at the computer and retrieved photographs from the computer. She said
she looked at the photographs and recognized some of them as of K.J. On cross-
examination, the officer said that the Defendant gave the police permission to take
the computer by signing a consent to search form. She also said that the Defendant
did not work at the Best Western Motel.
David Williams, Jr., a sergeant with the Bedford County Sheriff’s
Department, testified that he met the Defendant at the sheriff’s department on June
8, 2002. He said that he obtained permission to search the Defendant’s residence
from both the Defendant and the Defendant’s wife. The officer testified that he and
three other officers went to the Defendant’s home to conduct a search. He said that
when they got to the address they saw a mobile home and a “mini barn” behind the
residence. Sergeant Williams testified that he primarily searched the mini barn, and
the Defendant was present during this search. He said that, in the mini barn, he
discovered a group of photographs in an envelope on a shelf that was concealed by
a row of clothes. The officer said that, in addition to the photographs, the police
seized a digital camera and a computer from the Defendant’s home. Sergeant
Williams testified that the Defendant appeared nervous as he observed the officer
searching the mini barn. On cross-examination, the officer confirmed that the
Defendant provided him permission to search the home and mini barn.
Tom Davis, a computer evidence specialist with the TBI, testified that he
received a computer from the Bedford County Sheriff’s Department on July 12, 2002.
He said that he examined the Defendant’s computer and found approximately 700
pictures. He said that, of the 700 photographs, he placed approximately 144
photographs of women, some of which were sexually explicit photographs, on a CD
ROM that he then gave to police. Agent Davis presented some of the pictures that
he found on the Defendant’s computer to the jury. Agent Davis then presented some
photographs of the Defendant to the jury. He also presented some pictures of K.J.
that he found on the Defendant’s computer. The agent confirmed that he found all
of these pictures on the hard drive of the Defendant’s computer.
On cross-examination, the agent admitted that he did not know from personal
knowledge that this computer belonged to the Defendant. He also stated that he did
not know who placed the pictures on the computer. The agent testified that the
Defendant’s digital camera used a “flash card,” the pictures on the flash card could
be easily downloaded to a computer. Agent Davis explained that, in addition to the
photographs of unclothed women, there were normal pictures on the Defendant’s
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computer.
C.G. testified that she was born February 4, 1987, and that she was the person
pictured in eighteen of the photographs.
The Defendant called C.C., B.C.’s brother and the Defendant’s stepson, who
testified that he was eleven years old at the time of trial. He said that, during June
1 through June 8, 2002, he was living with his mother and the Defendant, who is his
stepfather. C.C. said that, during this time frame, K.J. came to stay at his house. He
said that K.J. never told him that his stepfather was acting inappropriately with her,
and he did not see the two acting inappropriately with each other. C.C. testified that
K.J. would go in the shed with her boyfriend, who also stayed at the house during
that time. C.C. testified that one time he went for a walk while K.J. was at his house,
and K.J. was sleeping in C.C.’s bedroom and the Defendant was sleeping in the
Defendant’s room. When he returned, they both were both still asleep in their
respective rooms. C.C. said that he and the Defendant both had access to the
computer, and he said that K.J. could have had access to it also. On cross-
examination C.C. testified that the Defendant used the computer the most, and the
Defendant would use the computer to get on the Internet. C.C. denied that he told
police that K.J. told him that the Defendant inappropriately touched her.
The Defendant testified on his own behalf that, around June 8, 2002, he was
the maintenance man for the Best Western Motel. The Defendant said that B.C. is
his stepdaughter and that she has never lived with him and his wife, but lived with
her grandmother. He said that B.C. stopped visiting around Christmas of that year.
The Defendant testified that he owned a Polaroid digital camera, the same one that
was admitted into evidence at the trial. He testified that he left the camera in
different places and that it was used by everyone in the house. Additionally, he said
that everyone had access to the computer and that the computer was not protected
with a password. The Defendant testified that, in June of 2002, a close relative of his
wife’s passed away, and K.J. visited them during that week. He said that K.J. came
over frequently, as did K.J.’s boyfriend. The Defendant said that he and K.J. got into
an argument, and he took her home. He said that she was upset with him for taking
her home. The Defendant said that he was never in the shed alone with K.J. and that
he never sent his son for a walk by himself on the road.
The Defendant said that, when he found out that he was being accused of
inappropriate sexual activity with a minor, he called the sheriff’s department and
asked them to come out to the house so that he could talk to someone. He said that
after approximately five hours no one came, so he called again, and the police told
him to come down to the police station, which he did. He said that he gave police
permission to search his house. The Defendant said that the police told him that “the
young lady says there are pictures in the shed,” and the Defendant responded, “Why
don’t we ride out there and find the pictures” because he had never seen any pictures
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before. The Defendant denied that he did the acts of which he was accused. On
cross-examination, the Defendant said that K.J.’s boyfriend was eleven or twelve at
the time of these alleged incidents. The Defendant conceded that the pictures shown
earlier in the trial were of K.J. standing in a motel room, unclothed, when she was
twelve years old, but he said that he did not take those pictures. The Defendant
stated that the pictures were found on his computer and in his mini barn, but
reiterated that he did not take the pictures. The Defendant admitted that he had taken
pictures of unclothed adult women and put those on his computer, but had never
taken any of K.J. or B.C. or any other minor girls. The Defendant denied any sexual
contact with B.C. The Defendant admitted that he owned pornographic movies, but
denied ever showing them to K.J. The Defendant admitted passing eight worthless
checks and admitted that he had four convictions for that offense.
State v. John Ray Thompson, Nos. M2003-00487-CCA-R3-CD & M2003-01824-CCA-R3-CD, 2004
WL 2964704, at *1-7 (Tenn. Crim. App., at Nashville, Dec. 20, 2004) (footnotes omitted), no Tenn.
R. App. P. 11 application filed. We summarized the facts of the second case as follows:
C.G., who also testified at the Defendant’s first trial, testified that she was born on
February 4, 1987, and in the summer of 2001 she was fourteen years old. She said
that the Defendant’s wife is her cousin, and so she had known the Defendant her
whole life. She said that the Defendant and his wife lived in her parents’ home
between 1994 and 1995, and she trusted the Defendant. C.G. testified that, during
the summer of 2001, the Defendant’s wife called C.G.’s sister and asked if C.G.
could baby-sit for her. C.G. said that, at that time, the Defendant and his wife were
living in an apartment building. C.G. explained that, sometimes when she baby-sat,
she would go over to the Defendant’s house and spend the night, so that she would
be there when the Defendant’s son woke up.
C.G. said that, when she was with the Defendant alone in the apartment, he
asked her if she had ever taken any pictures and if she would want to be a model.
She said that she did not believe the Defendant at first, but then she began to believe
him because he had “all kinds of other girls com[ing] over [and] tak[ing] pictures.”
She said that the Defendant’s daughter told her about the modeling and told her that
she was making money from it. She testified that a girl named “Kim” called, said
that she was an agent, and said that the Defendant’s story that he could make her a
model was true. The Defendant told her that, if she modeled, she would get clothes
and “thousands of dollars.” C.G. testified that, when the Defendant was trying to get
her to model, he showed her pictures of other young ladies. She said that, some of
the pictures were stored on his computer, and others were hidden behind a brick in
the garage. In some of these pictures, the subjects were partially or totally nude. She
said that, when the Defendant was convincing her to model, he bounced her breast
while he complimented her figure. She said that the Defendant also touched her leg
and touched her genital area through her clothing.
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C.G. testified that there was a computer in a computer room over the garage.
She said that the computer room was “real little.” She said that, at first, the
Defendant took pictures of her clothed. C.G. said that, thereafter, the Defendant
came into the bathroom where she was showering and took a picture of her while she
was showering. She said that, later, she agreed to have her picture taken in her bra
and panties, and the Defendant took these pictures of her in the computer room at his
house. C.G. said that, ultimately, the Defendant took pictures of her nude. She said
that one set of these pictures was taken in the computer room, and the other set was
taken in his bedroom. She said that, while these pictures were taken, the Defendant’s
son was sleeping or playing outside, and the Defendant’s wife was at work. Eight
pictures taken in the computer room were admitted into evidence, in addition to nine
pictures taken in the Defendant’s bedroom.
C.G. testified that the Defendant would pose her for the photographs. He also
placed a blanket on the floor for her to sit on and gave her a t-shirt to wear during one
of the sessions. C.G. said that the Defendant told her to try not to let his wife know
about the modeling because she would be mad if a bunch of girls were coming over
to the house.
C.G. said that, during the last photography session, the Defendant told her to
“close her eyes” and, when she did, he went down and put his mouth on her genital
area. She said that she stopped him quickly, and he told her that he did that just to
“relax” her. C.G. testified that she then stopped her modeling sessions. She said that
she did not tell her parents or police about them until she was contacted by the police.
On cross-examination, C.G. testified that the pictures were taken around July
of 2001 and that the touching occurred around that same date. She said that she did
not remember telling the police that this incident occurred around Thanksgiving.
C.G. conceded that, at first, she lied to the officer about the events because she did
not want her family to think badly of her. She said that, later, she told the officer the
truth.
David Williams, Jr., an officer with the Bedford County Sheriff’s
Department, testified that he searched the Defendant’s car on June 8, 2002. He said
that the Defendant signed a “permission to search form,” after which he searched an
“outbuilding.” He said that, while he was conducting the search, the Defendant
seemed nervous. The officer testified that the police seized a digital camera and a
computer from the Defendant’s home.
Tom Davis, the computer evidence specialist with the TBI, testified that,
when he searched the Defendant’s computer, he found numerous photographs of
C.G. He said that these pictures were stored on the Defendant’s hard drive and,
according to the computer files, these were pictures stored on June 28, 2001, through
July 3, 2001. On cross-examination, Agent Davis said that a person of average
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intelligence could operate a computer and download pictures. The Agent said that
he could not be sure who put the pictures on the computer.
Rebecca Hord, an officer with the Bedford County Sheriff’s Department,
testified that she asked Agent Davis to search the Defendant’s computer for
photographs, and, when he found some, she asked him to print images. She said that
she recognized C.G. as one of the girls in the pictures. The officer said that, when
she first interviewed C.G., C.G. did not know that the police already had pictures of
her from the Defendant’s computer.
The Defendant testified that C.G. babysat for his son during the “end of June
and all of July and the first week in August.” The Defendant said that anyone who
wanted to turn on his computer had access to it and that a number of people used the
computer. He also testified that a number of people used his camera. The Defendant
denied taking any pictures of C.G. On cross-examination, the Defendant testified
that C.G. would spend the night at his house to babysit. The Defendant admitted
that, in one of the pictures, C.G. appeared to be wearing one of his shirts, but he
stated that there were many such shirts in the house. He stated that one of C.G.’s
friends could have taken the pictures. The Defendant admitted that he had previously
been convicted of passing worthless checks.
Id. at *8-10 (footnotes omitted).
At the post-conviction hearing, the parties presented the following evidence: The Petitioner
testified that his trial counsel (“Counsel”) represented him at trial in both cases. Prior to his
preliminary hearing, no attorney came to talk with him. After his preliminary hearing, at which he
was represented by a public defender, Counsel visited him for about an hour. The Petitioner
estimated this occurred approximately one and a half months before trial, and, by this time, he had
already been in jail for “months.” At this meeting, the Petitioner informed Counsel that he should
visit with the Petitioner’s mother and wife, and the Petitioner gave Counsel “paperwork,” consisting
of evidence that he was not at home on one of the days in question, June 4, 2002. The Petitioner
claimed, while offering a pay-check stub as supporting proof, that he unloaded drywall in Bell
Buckle on June 4, 2002. He stated that he gave Counsel the stub, but Counsel failed to follow up
on the issue. Counsel additionally failed to provide the Petitioner with the discovery he obtained.
Additionally, although the Petitioner wished to have DNA tests performed, Counsel told him they
would not be performed because they would neither help nor hurt his case.
The Petitioner stated that Counsel’s second and final visit occurred a few weeks before trial,
and this visit also lasted only one hour. At this meeting, the Petitioner claimed Counsel advised him
that “[t]he State has no evidence,” “[d]on’t worry about it,” and “[t]hey have nothing.” The
Petitioner then also recalled Counsel meeting with him the day before trial and in the hallway on the
day of trial. When further pressed, he recalled meeting an investigator while he was in jail who
obtained a list of potential witnesses. The Petitioner additionally claimed that he and his family
made repeated calls to Counsel’s office, but they were never able to speak with him.
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The Petitioner testified that he relayed to Counsel that he discovered one of the victims, K.J.,1
and her boyfriend, Thomas Riley, having sex on his couch. The Petitioner recalled that he
discovered them on June 8 at approximately 2:30 in the morning. The Petitioner additionally
claimed he told Counsel that he heard Thomas Riley “fingered” K.J., took photos of her, and placed
these photos on his computer. Counsel told him that he was going to be able to tell his side of the
story, but the Petitioner was “cut off” by the State at trial; he was never able to tell the jury what he
knew about K.J. With respect to pictures allegedly taken in the Murfreesboro hotel, the Petitioner
complained to Counsel that the pictures were taken from outside the “jurisdiction” of the court.
Counsel told him to not worry about it.
With respect to the second trial, the Petitioner testified that Counsel was again appointed to
represent him. He had already been sent to the Department of Correction, and the Petitioner stated
that he did not talk with Counsel between the first and second trials. In fact, the Petitioner stated he
only learned about the second trial as he was being transported to it. In addressing the victim of the
second case, C.G., the Petitioner testified that she was babysitting for them because “she was fixing
to get kicked out because she was having sex with little boys . . . .” The Petitioner claimed that he
did not have a chance to explain this to Counsel. He would have had witnesses at the second trial
to testify to this, but there was not time. Finally, the Petitioner testified he had no idea, prior to
testifying, that he could be impeached with his previous convictions.
On cross-examination, the Petitioner stated that the pay stub was for approximately three
hours work in the early evening of June 4, 2002. Additionally, although he knew what information
the State would present at the first trial, the Petitioner claimed he did not know the State found
pictures of C.G., the victim in the second case. With respect to the checks and previous sexual
encounters, the Petitioner admitted Counsel objected to these issues, but the court ruled against him.
In addressing the timing of the second case, he claimed he did not know about the second trial
because Counsel told him the second case had been dropped. The Petitioner admitted that he knew
he was being taken to court for something associated with the second case, but he did not know trial
was scheduled for that day. The Petitioner then admitted he knew a trial date had been selected, but
he did not know if that would be a preliminary hearing, jury selection, or the actual trial.
The Petitioner additionally testified that his family considered hiring another attorney, Ted
Daniel. During one hearing, Daniel stood up and informed the judge that he believed “grave
constitutional violations had occurred.” Counsel allowed the Petitioner to discuss the situation with
Daniel, but, “under advisement from an attorney,” the Petitioner decided not to complain about
Counsel’s representation at that time.
Peggy J. Wimbley, the Petitioner’s mother, testified that she visited him regularly in jail after
he was arrested. The Petitioner relayed information to Wimbley, and Wimbley attempted to relay
the information to Counsel. She went by his office twice and called him twenty-five to thirty times.
1
At trial, this victim was referred to by the initials K.J. At the post-conviction hearing, she was referred to
by the initials C.J. W e will refer to her as K.J.
11
Out of those phone calls, she only spoke with him four times. Once Wimbley recalled going to meet
with Counsel, but she did not speak with him. Only the Petitioner’s stepson, his wife, and his sister
were able to speak with Counsel. After the trials, Wimbley requested all the Petitioner’s paperwork
from Counsel, and, although she did not receive them as quickly as she thought she should have,
Wimbley ultimately received what she requested. Wimbley stated, however, that Counsel avoided
the family at the Petitioner’s hearings. She also told Counsel about a situation when K.J. hung
around two boys at a roller-skating rink and about a time when she caught K.J. performing oral sex
on Wimbley’s grandson; they were six and five at the time. She knew these things at the time of
trial, but Counsel failed to call her as a witness to testify. Counsel told her that he felt it would not
be prudent to call her as a witness.
Cody Caldwell testified that he lived with the Petitioner at the time he was arrested on these
charges. He recalled a young man named Thomas Riley, but he did not recall Riley ever taking
photographs and putting them on the Petitioner’s computer. Caldwell did remember that Riley and
K.J. were boyfriend and girlfriend.
Counsel testified that he reviewed the preliminary hearing transcripts prior to the first trial.
He stated that he and the preliminary hearing attorney, Collins, discussed the witnesses and their
demeanor. Prior to trial, Counsel possessed statements made by K.J., B.C., and C.G.; a report from
Our Kids who examined the victims; and reports from Bedford County Medical Center on K.J.
Counsel stated that he and the Petitioner discussed severing the cases, but they determined that the
first case, with victims K.J. and B.C., should be tried together because the Petitioner’s defense was
to deny involvement. Based on this position, Counsel felt it was reasonable to try the cases together.
In addressing his lack of a pre-trial Rule 412 motion, Counsel stated that he felt any pre-trial
motion would be denied. Thus, he decided to forgo the pre-trial motion and attempt to introduce the
evidence of Thomas Riley and K.J. without putting the State on notice. The State objected to the
evidence, and the trial court sustained the objection.
On cross-examination, Counsel testified that he discussed the case with Collins after the
preliminary hearing. Collins opined that K.J. and B.C. would be good witnesses at trial. Counsel
understood the charges and evidence against the Petitioner, and he met with the Petitioner “at least
10 or 12 times” prior to trial. Counsel looked at the pay-stub provided by the Petitioner and stated
that he did not remember ever seeing that document. Even if the Petitioner provided him with the
pay stub, it would not serve as an absolute defense to the charges. In addressing the Petitioner’s
charge that he told the Petitioner the second case would be “dismissed,” Counsel stated that he told
the Petitioner the indictment would be dismissed, but a superceding indictment would be filed. The
Petitioner was present when the trial date was set in open court. Counsel testified that all of the
cases were investigated together, and they discussed both cases during their ten to twelve meetings.
Counsel stated that the Petitioner’s defense remained the same through both trials.
Counsel recalled that the State did not attempt to introduce DNA evidence because the events
occurred days before the children were checked. Additionally, Counsel testified that the Petitioner
never requested a DNA test on himself. Counsel met with the Petitioner’s mother, stepson, and wife
12
before trial, and learned about K.J.’s intercourse with Riley. Counsel determined, however, that Rule
412 would not permit him to introduce this information. Counsel thought his best chance would be
to attempt to introduce the evidence without the State noticing; the State objected and the trial court
excluded the evidence. Although Counsel recalled hearing about the skating rink incident, he could
not remember being told about the oral sex incident. Counsel chose not to elicit testimony about the
skating rink because he thought it was not relevant. He said that, even if he was told about the oral
sex, Rule 412 would have probably prevented that testimony.
In determining who would testify, Counsel stated that he, the Petitioner, and the Petitioner’s
family met after the close of the State’s case. The Petitioner determined that his wife might “cop an
attitude and become mouthy and make a bad witness,” so she was not called to testify. Prior to the
Petitioner’s testimony, Counsel objected to the State’s use of his convictions for passing worthless
checks. The trial court allowed the State to use the prior convictions, which Counsel and the
Petitioner had discussed. The Petitioner knew that if he testified he would be confronted with his
worthless check convictions. Finally, Counsel stated that, when cross-examining child witnesses,
he often must take a different approach than normal. Experience has taught Counsel that juries
become sympathetic to a child witness when an attorney cross-examines him or her about every little
inconsistency.
On redirect-examination, Counsel testified that he does not keep a log of how many times
he speaks or meets with a client. Counsel passed on discovery to the Petitioner in a timely manner
and considered the witnesses proposed by the Petitioner. Ultimately, Counsel refused to use some
of the witnesses because he knew their testimony would be perjury.
The post-conviction court, in a memorandum opinion, denied the Petitioner’s petition for
post-conviction relief. It is from this decision that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner raises the general issue that he failed to receive the effective
assistance of counsel. More specifically, the Petitioner alleges that: (1) Counsel failed to adequately
cross-examine the victims; (2) Counsel failed to investigate; (3) Counsel failed to file a Tennessee
Rule of Evidence 412 motion; and (4) Counsel failed to prevent improper cross-examination of the
Petitioner. We additionally note that the Petitioner raises a related issue, that Tennessee’s standard
for ineffective assistance of counsel cases is unconstitutional according to established United States
Supreme Court precedent. We will first address this issue, with the remaining issues in turn.
A. Constitutionality of Tennessee’s Ineffective Assistance of Counsel Standard
As this Court has repeatedly stated, in order to obtain post-conviction relief, a petitioner must
show that his or her conviction or sentence is void or voidable because of the abridgment of a
constitutional right. T.C.A. § 40-30-103 (2006). Pursuant to the statute, the petitioner bears the
burden of proving factual allegations in the petition for post-conviction relief by clear and
convincing evidence. T.C.A. § 40-30-110(f) (2006). The Petitioner argues that this “clear and
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convincing” standard is irreconcilable with that of Strickland v. Washington, the polestar ineffective
assistance of counsel case.
In Strickland, the United States Supreme Court explained the following two-prong test
applied to claims of ineffective assistance of counsel:
First, the [petitioner] must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.
Second, the [petitioner] must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
[petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989). If a petitioner clears the first hurdle of proving deficiency, he must then show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d
576, 587 (Tenn. 2002). It is this “reasonable probability” standard that the Petitioner claims conflicts
with Tennessee’s clear and convincing evidence standard.
Our review of the issue leads us to the conclusion that the two standards do not conflict. A
petitioner must prove disputed factual allegations by clear and convincing evidence. For example,
in this case, the Petitioner claimed he gave Counsel a pay-stub allegedly proving he was moving
drywall in Bell Buckle on June 4, 2002. Counsel disputed this, claiming he never received the pay-
stub. The Petitioner must prove by “clear and convincing” evidence that he actually gave Counsel
the pay-stub. If he does not meet this burden, we analyze the case as though the Petitioner did not
give the pay stub to Counsel. Having resolved that factual dispute, we would then proceed to the
two-prong Strickland test, analyzing deficiency and prejudice. In other words, “clear and
convincing” is the burden of proof. Deficient representation and a reasonable probability of a
different outcome is what must be proven. In this respect, the statute is not in conflict with
established precedent. Further, the Tennessee Supreme Court has upheld and applied this statute in
numerous cases, and we are bound by the rulings of that court. See, e.g., Wallace v. State, 121
S.W.3d 652, 656 (Tenn. 2003); Nichols v. State, 90 S.W.3d 576, 586 (Tenn. 2002). The Petitioner
is not entitled to relief on this issue.
B. Ineffective Assistance of Counsel
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee Constitution.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). As noted above, the following two-prong test
directs a court’s evaluation of a claim for ineffectiveness:
14
First, the [petitioner] must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.
Second, the [petitioner] must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
[petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419 (Tenn.
1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland,
466 U.S. at 688).
When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
In doing so, the reviewing court must be highly deferential and “should indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel,
‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’”
Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38
(1984)). Counsel should not be deemed to have been ineffective merely because a different
procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276,
279-80 (Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the
defense does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate preparation.
House, 44 S.W.3d at 515.
If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence in the
15
outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
1. Counsel failed to adequately cross-examine the victims
In his first allegation of ineffectiveness, the Petitioner goes to great length to point out the
various inconsistencies in the victims’ testimony and prior statements. He argues that Counsel’s
failure to adequately cross-examine the victims with their prior inconsistent statements amounted
to the ineffective assistance of counsel. Specifically, the Petitioner notes Counsel failed to cross-
examine K.J. about her inconsistent statement concerning the dates, times, and relationships of the
four episodes. Additionally, the Petitioner argues Counsel failed to cross-examine K.J. about
statements allegedly made by the Petitioner and about her relationship with Thomas Riley. With
respect to C.G., the Petitioner alleges Counsel failed to adequately cross-examine C.G. about
inconsistencies concerning where the Petitioner touched her and what she was wearing during the
incidents.
At the post-conviction hearing, Counsel testified that he obtained all of the victims’
statements prior to trial, and he believed he cross-examined the victims adequately. He also noted
that a particularly harsh cross-examination of a child might make the jury sympathize with the child.
Therefore, he chose not to emphasize every particular inconsistency in linear order as a tactical
strategy.
The post-conviction court found the following with respect to Counsel’s cross-examination:
A careful review of the trial transcript reveals that Counsel used the statements made
at other times and places effectively in his cross examination of the victim. He asked
questions concerning timing of events and sequence of events and about the presence
or absence of witnesses to the events that reflect that he was in possession of these
statements. Several questions asked by Counsel illustrate the inconsistency in the
victims testimony concerning the dates and times the events occurred, whether or not
she was on her period, whether or not she had told Detective Elliot or someone else
something different. The mere fact that he did not approach his questions in a
chronological line by line approach does not mean that the questions were
ineffective. Counsel asked questions designed to show the jury that inconsistencies
existed in the timeline, in the ability of the victim to recall the events, in the ability
of the victim to remember all of the details concerning when and were certain events
occurred, whether or not pictures were taken, what directions were given to her by
the Petitioner and whether she was afraid or was engaging in the conduct for some
other reason. The Petitioner has not shown this approach is below the standard of
care of attorneys in criminal cases, nor has he shown that prejudice of this approach.
A constant thread in Counsel’s approach is to bring out inconsistencies while not
upsetting the young witness nor alienating the jury to his client.
We reviewed Counsel’s cross-examination of the victims, and we come to the same
conclusion. During cross-examination, K.J. admitted she could not recall on what date the incidents
16
occurred, and she was imprecise in recalling specific times. Counsel also cross-examined K.J. about
Thomas Riley and any possible bias K.J. may have had against the Petitioner, although the trial court
prevented Counsel from questioning K.J. about her sexual relationship with Riley.
With respect to C.G., Counsel cross-examined her about inconsistencies in pre-trial
statements concerning the date on which the events happened. Specifically, Counsel questioned, “So
you are saying that you knowingly lied about this?” C.G. responded, “Yes, with my family sitting
there, the first time I got called to her office.” Counsel asked, “But you are trying to tell these people
that you are not knowingly lying today, right?” C.G. stated, “Yes.”
We recognize that Counsel did not specifically confront C.G. with inconsistent statements
concerning where she alleged the Petitioner touched her and concerning what she wore during the
incident. Ultimately, however, we agree with the trial court that Counsel skillfully cross-examined
K.J. and C.G. using their pre-trial statements. Further, a decision to refrain from harsh line-by-line
cross-examination is within the discretion of Counsel in this case, particularly because of the age of
the victims. House, 44 S.W.3d at 515. The Petitioner has not proven Counsel was deficient in this
respect.
2. Counsel failed to investigate
Next, the Petitioner complains that Counsel failed to adequately investigate and prepare for
the two trials because he met with the Petitioner only twice and failed to investigate the alibi defense
provided by the pay-stub. The post-conviction court accredited the testimony of Counsel, who
testified that he met with the Petitioner ten to twelve times and was prepared for both cases. Counsel
additionally testified that the Petitioner never provided him with the pay-stub, but, even if the
Petitioner had provided the stub, it would not have provided an adequate defense as the alleged work
only required three hours, while the crimes occurred over several days.
Based on our review of the record, we agree with the post-conviction court’s finding that
Counsel met with the Petitioner a number of times, spoke with potential witnesses, and proceeded
to trial based on the Petitioner’s defense of, “I didn’t do it.” As such, Counsel was not deficient.
Further, the Petitioner has failed to prove any prejudice.
3. Counsel failed to file a Rule 412 motion
Next, the Petitioner complains that Counsel failed to file a Rule 412 motion to introduce
testimony that K.J. and Riley had sex on the Petitioner’s couch. Counsel testified that he found no
basis under Rule 412 to introduce the statement; therefore, he attempted to “slip it by” the State at
trial. The State objected to the testimony, and the trial court excluded it. The post-conviction court
ruled that the Petitioner provided no basis under Rule 412 to admit the evidence, and, therefore, the
Petitioner was not prejudiced by Counsel’s failure to make the motion.
Rule 412 generally prohibits the use of specific instances of the victim’s “sexual behavior.”
Certain exceptions apply, and the one of arguable applicability to this case concerns credibility. If
17
certain procedural requirements are followed, specific instances of sexual behavior may be admitted
if “[o]ffered by the defendant on the issue of credibility of the victim, provided the prosecutor or
victim has presented evidence as to the victim’s sexual behavior, and only to the extent needed to
rebut the specific evidence presented by the prosecutor or victim[.]” Tenn. R. Evid. 412(c)(2).
To support his argument that the “credibility exception” applies in this instance, the
Petitioner cites to K.J.’s numerous inconsistent pre-trial statements concerning her sexual
relationship with Riley. The statements come from the following sources: (1) a medical record; (2)
an interview with a sheriff’s department deputy; (3) an interview with a sheriff’s department
lieutenant; and (4) the preliminary hearing. The Petitioner cited no statements made either by the
State or the victim at trial.
In our view, in order to “rebut the specific evidence presented by the prosecutor or victim,”
the State or victim must “present evidence at as to the victim’s sexual behavior” at the proceeding
in which the defendant seeks to introduce the evidence. See State v. Collin S. Johnson, No.
M2001-01973-CCA-R9-CD, 2002 WL 992402, at *5 (Tenn. Crim. App., at Nashville, May 15,
2002) (stating Rule 412(c)(2) evidence must be presented “to rebut testimony offered by the state.”)
(emphasis added), perm. app. denied (Tenn. Oct. 14, 2002). In other words, for a defendant to utilize
this exception at a trial, the State or victim must present the evidence at the trial. Similarly, if the
defendant seeks to utilize the exception at a preliminary hearing, the State or victim must present the
evidence at the preliminary hearing.
On post-conviction appeal, the Defendant argues that Counsel could have successfully
pursued a Rule 412 motion, and he was thus ineffective. However, because the State and victim
presented no evidence at trial concerning the victim’s sexual behavior, the credibility exception to
Rule 412 does not apply, and a Rule 412 motion would not have been successful. Thus, as the post-
conviction court found, there was no prejudice from Counsel’s tactical decision. The Petitioner is
not entitled to relief on this issue.
4. Counsel failed to prevent improper cross-examination of the Petitioner
Finally, the Petitioner complains that Counsel failed to prevent him from being improperly
cross-examined with “bad check convictions.” The Petitioner cites to Bunch v. State for the
proposition that evidence of other crimes is generally not admissible. 605 S.W.2d 227, 229 (Tenn.
1980); see generally Tenn. R. Evid. 404(b). The post-conviction court found that Counsel attempted
to exclude the check convictions, but, after unsuccessful argument, he informed the Petitioner that
the check would be used to impeach him should he testify. We agree with the post-conviction court.
Counsel made an objection, but the checks were properly allowed under Rule 609 for the purpose
of impeachment. Counsel advised the Petitioner they would be used against him should he testify.
The Petitioner has not proven Counsel was deficient in this respect. He is not entitled to relief on
this issue.
III. Conclusion
18
After a thorough review of the record and applicable law, we conclude that the Petitioner has
not proved he failed to receive the effective assistance of counsel. The judgment of the post-
conviction court is affirmed.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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