State of Tennessee v. Coy McKaughan ( 2021 )

01/13/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
October 2, 2019 Session
COY MCKAUGHAN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 10-00690 James M. Lammey, Judge
___________________________________
No. W2018-01035-CCA-R3-PC
___________________________________
The Petitioner, Coy McKaughan, filed a post-conviction petition in the Shelby County
Criminal Court seeking relief from his conviction of aggravated sexual battery and
accompanying twelve-year sentence in the Tennessee Department of Correction. The post-
conviction court denied the petition, and the Petitioner appeals. On appeal, the Petitioner
contends that (1) his trial counsel was ineffective, (2) his appellate counsel was ineffective,
(3) his due process rights were violated by the State’s withholding evidence in violation of
Brady v. Maryland, (4) his due process rights were violated by the State’s assembling a
“rigged grand jury foreperson,” (5) the State violated his rights under the Fourth and
Fourteenth Amendments of the United States Constitution and article I, section 7 of the
Tennessee Constitution, and (6) he was denied his constitutional right to a “full and fair”
post-conviction hearing. Upon review, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. THOMAS T. WOODALL, J., not participating.
Joseph A. Crone, Memphis, Tennessee, for the Appellant, Coy McKaughan.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
The Petitioner was charged with the aggravated sexual battery of his six-year-old
stepdaughter. Specifically, the indictment alleged that on September 3, 2009, the Petitioner
unlawfully and intentionally engaged in sexual contact with the victim, who was less than
thirteen years of age, in violation of Tennessee Code Annotated section 39-13-504.
At trial, C.M., the victim’s mother, testified that the victim was born on November
15, 2002. When the victim was four years old, C.M. and the Petitioner married, and they
later had a daughter.
On September 3, 2009, the victim’s friend came to their home for a visit. The girls
rode bicycles together, and the victim had a bicycle accident that caused injuries to her
right side, head, and knee. That night, C.M. drove the victim’s friend home. When C.M.
returned, the victim and her sister were in bed. C.M. went into her daughters’ room and
saw the girls lying on a daybed, with one girl on each end of the bed. Both girls fit on the
bed because they were “very small.” The Petitioner was lying on his side behind the victim,
and a blanket was draped across them. C.M. saw the Petitioner’s hand moving underneath
the blanket, as if he were rubbing the victim between her legs. C.M. asked the Petitioner
what he was doing, and the Petitioner “looked at [her] like a deer in headlights.” The victim
looked terrified. C.M. took both of the children to her bedroom and shortly thereafter, she
took the girls to the front yard and called 911. While they were outside, a neighbor drove
into his driveway. C.M. said that she did not know what the Petitioner would do if he came
out of the house, so she asked the neighbor if he and his wife would watch the children.
C.M. said that when the police arrived, they questioned her and the victim
separately. Around 6:30 a.m. the following morning, the victim was examined at the Child
Advocacy Center.
C.M. identified the victim’s blanket, nightgown, and underwear that were taken by
the police. She acknowledged that some “drawings” on the blanket were not present before
it was taken by the police.
On cross-examination, C.M. acknowledged that she and the Petitioner had
“[s]erious discussions” about the Petitioner adopting the victim. C.M. said that the
adoption was the Petitioner’s idea, that he wanted the victim to call him “daddy,” and that
he was the only father the victim had ever known. The Petitioner had not “follow[ed]
through” with the adoption.
The victim testified that a few months prior to her seventh birthday, she was living
in a house with her mother, her sister, and the Petitioner. She said that the Petitioner gave
her a “bad touch,” and she pointed toward her vagina. She said that the touching happened
in “a bunch of rooms” at their home and that it happened “more than once.” The Petitioner
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told her not to tell anyone. The victim said that her mother walked into the victim’s
bedroom during one incident. The victim explained that she was lying on her bed and that
the Petitioner came into her room and stood beside the bed. The victim said that she was
underneath her princess blanket and that the Petitioner “rubbed [her] in a circular pattern”
on top of her underwear. C.M. made the victim go to the neighbor’s house across the street.
The victim explained that when she said “this happened a lot of times,” she meant
“[k]issing.” She recalled that a few days before the incident, the Petitioner gave her a
“grownup kiss” that was “not a good touch.” The victim said that she did not want the
Petitioner to kiss her like that or to touch her vagina, but she was afraid to tell him to stop.
The victim said that she had told C.M. about the Petitioner’s kissing her before C.M. caught
the Petitioner touching her. C.M. had told the victim that the Petitioner “would never do
that to [her].”
Millington Police Officer Trudie Carter testified that she spoke with the victim at a
neighbor’s house on the night of the complaint. The victim told Officer Carter
that she was lying in her bed, and her dad got into her bed with
her and got underneath her covers with her; and he started
kissing her like he would kiss her mother. . . . And she said,
“Well, then he started to touch me,” and she lifted up her
nightgown and showed me her vaginal area. . . . And she said
that he was using his two fingers - she demonstrated he used
two fingers - his index finger and his middle finger and moving
them around in a circular motion. . . . And she said that he also
pulled the skin apart down there. And I asked her if he had
done this over her underwear or under; and she said it was over.
Dr. Karen Lakin testified that on September 4, 2009, she examined the victim at the
Memphis Child Advocacy Center. During her examination and interview of the victim,
Dr. Lakin learned that the victim had been in a bicycle accident. Dr. Lakin saw a healing
abrasion on the victim’s forehead and her right knee. Dr. Lakin said that the victim
disclosed in the interview that her step-father was touching her
private area [“]on the front[”]; and motioned with her index
finger a circular pattern.
She also disclosed that he kissed her [“]like he kisses
mama[”].
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She disclosed that he told her it was [“]their secret[”];
but she told him it was [“]his and mama’s secret[”].
The patient did state that [the touching] had happened
before.
Dr. Lakin said the victim was frightened and “tearful” during the interview. During
her examination of the victim, Dr. Lakin noticed irritation and redness on the left side of
the victim’s genital area. Dr. Lakin explained that the asymmetrical redness was not
“something typical that you would see just for no reason at all” and that “it may be from
some type of sexual assault, but there are other reasons that you may see it as well.” The
victim also had an area of abrasion just below the bottom of the hymen. Dr. Lakin took
photographs of the injuries, and the photographs were shown to the jury to explain the
victim’s injuries. The victim weighed thirty-two pounds and was one hundred and eight
centimeters tall at the time of the examination.
Claire Prince testified that she was a social worker with the Child Advocacy Center.
On September 4, 2009, she interviewed the victim. The victim told Prince that the
Petitioner had touched the victim with one finger on the outside of her underwear. The
victim said that the incident C.M. saw was the first time the Petitioner had touched her in
that manner. The victim mentioned that the Petitioner had stuck his tongue in her mouth.
The parties stipulated that on September 3, 2009, the Millington Police Department
collected the victim’s pink blanket, her nightgown, and her underwear. The three items
were submitted to the Tennessee Bureau of Investigation’s (TBI) crime laboratory to be
tested for semen or other bodily fluids, but none were found.
Morgan Jones testified for the Petitioner. Jones said that the Petitioner told him on
two occasions that he was thinking about divorcing C.M. and resuming a relationship with
his ex-wife. Jones said that on the night of September 3, 2009, he was at the Petitioner’s
house. The Petitioner had been drinking heavily and was “almost passed out” when Jones
left.
Bubba Williams testified that for six months prior to the offense, he noticed that the
Petitioner and C.M. were having marital problems. The Petitioner told Williams that he
was consulting an attorney for advice about whether he should adopt the victim.
Todd Parsons said the Petitioner told him that he was considering leaving C.M. and
resuming a relationship with his ex-wife. Parsons was at the Petitioner’s residence on the
night of September 3, 2009. When Parsons left, the Petitioner was “inebriated.”
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The Petitioner testified that after he and C.M. married, they began having problems.
She became distant, they stopped sleeping in the same bed, and they took turns sleeping on
the couch.
The Petitioner said that on the night of the offense, he drank six “big old mugs” of
beer. After the guests left and the children had gone to bed, the Petitioner went to the living
room, sat on the couch, and turned on the television. The children got out of bed and told
him they were hungry or thirsty. The Petitioner went to the children’s room, started a
movie, and lay down with them so they would go to sleep. The Petitioner denied kissing
the victim inappropriately, fondling the victim, or touching the victim between her legs.
He said, “I would never do anything remotely close to that.”
The Petitioner said that when C.M. came into the children’s bedroom and asked
what he was doing, she looked angry. The Petitioner was confused. C.M. said, “You know
what I’m talking about,” and she and the children left the house. The next thing the
Petitioner remembered was the police coming to the house. The Petitioner did not know
why they were there. The officer asked the Petitioner if he had been in his daughter’s bed
that night, and the Petitioner answered affirmatively. The Petitioner told the officer that
they were watching movies. The officer asked the Petitioner if he kissed his daughters.
The Petitioner said that he became angry and told the officer that he had kissed his
daughters but not inappropriately.
At the conclusion of the trial, the jury found the Petitioner guilty of aggravated
sexual battery, and the trial court imposed a sentence of twelve years at one hundred percent
in the Department of Correction. State v. Coy McKaughan, No. W2013-00676-CCA-R3-
CD, 2014 WL 2547768, at *1 (Tenn. Crim. App. at Jackson, June 2, 2014). On direct
appeal, the Petitioner’s sole issue was the admissibility of the video recording of the
victim’s forensic interview. Id. This court affirmed the judgment of the trial court. Id.Thereafter, the Petitioner filed a pro se petition for post-conviction relief. Counsel
was appointed, but no amended petition was filed. The Petitioner alleged the following
claims of ineffective assistance of counsel: (1) that appellate counsel failed to appeal all
the issues raised in the Petitioner’s motion for new trial; (2) that trial counsel failed to raise
an objection pursuant to Rule 404(b) of the Tennessee Rules of Evidence to the
introduction of other alleged crimes that occurred outside the time specified in the
indictment and that appellate counsel failed to raise the issue on direct appeal; (3) that trial
counsel failed to request an election of offenses after the State presented proof of charged
and uncharged criminal conduct at trial and that appellate counsel failed to raise the issue
on direct appeal; (4) that trial counsel failed to object to the admission of photographs that
were taken of the victim during a forensic examination and that appellate counsel failed to
raise the issue on direct appeal; (5) that trial counsel gave the Petitioner incorrect legal
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advice during the plea negotiation process and that appellate counsel failed to raise the
issue on direct appeal; (6) that trial counsel failed to challenge the trial court’s infringement
of the Petitioner’s right to present a defense after the court threatened the Petitioner with
aggravated perjury when he attempted to offer proof in support of a Rule 412 motion and
that appellate counsel failed to raise the issue on direct appeal; (7) that trial counsel failed
to object to the hearsay testimony of three police officers and Dr. Lakin and that appellate
counsel failed to raise the issue on direct appeal; (8) that trial counsel failed to ask C.M.
about her statement to Bubba Williams that she “need[ed] to find a way to get rid of [the
Petitioner]” and that appellate counsel failed to raise the issue on direct appeal; (9) that trial
counsel failed to challenge the enhancement and mitigating factors imposed by the trial
court during sentencing and that appellate counsel failed to raise the issue on direct appeal;
(10) that trial counsel failed to object to multiple acts of prosecutorial misconduct and that
appellate counsel failed to raise the issue on direct appeal; (11) that trial counsel failed to
challenge the selection process of the grand jury foreperson, which was illegal; (12) that
trial counsel failed to object to the introduction of the video recording of the victim’s
forensic interview as substantive evidence or to request a limiting instruction and that
appellate counsel failed to raise the issue on direct appeal; and (13) that trial counsel failed
to challenge the unlawful search and seizure of the Petitioner by the Millington Police
Department.
The record reflects that the day before the post-conviction hearing, post-conviction
counsel told the court that appellate counsel was not available to testify. Post-conviction
counsel explained that he thought appellate counsel had moved to North Carolina, and post-
conviction counsel had been unable to contact appellate counsel. Post-conviction counsel
stated that he would submit “transcripts of the appellate record” which would “speak for
itself.”
Post-conviction counsel acknowledged that he had not filed an amended petition but
stated that the Petitioner wanted to raise an issue regarding the illegal appointment of the
foreperson of the grand jury that returned the indictment against him. Post-conviction
counsel said that a retired naval commander who was convicted of a felony similar to the
Petitioner’s conviction had contacted post-conviction counsel about the grand jury issue.
The grand jury foreperson in the naval commander’s case was chosen by a similar
procedure, and post-conviction counsel advised the court that the Petitioner wanted the
naval commander to testify at the post-conviction hearing.
Upon questioning by the post-conviction court, post-conviction counsel noted that
the Petitioner was convicted in 2012 and that the Petitioner filed the post-conviction
petition in 2015. The post-conviction court noted that the post-conviction case had been
pending for three years, during which the hearing had been set several times. The post-
conviction court refused to delay the hearing to allow the Petitioner to pursue a new issue
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regarding the selection of the grand jury foreperson because it was not pursued as a claim
of ineffectiveness of trial counsel.
At the beginning of the post-conviction hearing the following day, post-conviction
counsel announced that the Petitioner wanted to proceed pro se. The Petitioner said he was
not prepared to proceed because his “post conviction center[ed] around delayed appeal,”
and his appellate counsel was not present to testify. The Petitioner maintained that he knew
appellate counsel’s North Carolina address. The Petitioner said that trial counsel had raised
ten issues in the motion for new trial but that appellate counsel had not raised all of the
issues on direct appeal. The Petitioner further said that appellate counsel had never met
with him. The post-conviction court advised the Petitioner that he would have to rely on
the record, including the written motion for new trial, the transcript of the motion for new
trial, and the appellate brief, in support of his contentions. The post-conviction court
reiterated it could not order that appellate counsel be brought into court. The Petitioner
responded that he was not ready for the hearing. The post-conviction court advised the
Petitioner that he could proceed pro se but that the case would be heard that day or it would
dismissed with prejudice.
The post-conviction court explained that it could not force appellate counsel, who
resided out of state, to return to Tennessee to testify. The post-conviction court further
explained that it refused to delay the post-conviction proceedings based upon the hope
appellate counsel would return to Tennessee.
The Petitioner then stated that he also wanted to introduce “grand jury reporting
orders” for the foreperson of the grand jury that indicted him. The Petitioner maintained
that the grand jury foreperson was supposed to serve only a two-year term; however, the
foreperson of his grand jury was reappointed “[o]ver and over,” which the Petitioner
contended rendered his indictment void. The post-conviction court said that the Court of
Criminal Appeals had addressed the issue in another case and “determined that does not
render it void.”
Trial counsel testified that he was appointed to represent the Petitioner. The offense
was alleged to have occurred on September 3, 2009, and the State introduced evidence of
other acts that might have occurred prior to the date specified in the indictment. Trial
counsel acknowledged that if he had not objected to evidence of the other acts, he “probably
should have.” Trial counsel noted that the indictment alleged a single incident but that the
victim testified regarding “other innocuous inappropriate behavior.” Trial counsel noted
Dr. Lakin had testified that during the forensic interview, the victim said the Petitioner
“had kissed her in a way he kissed mommy – in a way that she found to be inappropriate –
not okay touching.” At trial, the victim testified that the kissing occurred a few days prior
to the charged offense. Trial counsel thought that he objected to the testimony about the
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kissing and that the trial court ruled that the State could present evidence of the “grooming”
that led to the charged offense.
Trial counsel said that he thought the victim’s trial testimony went “into areas that
we had not been made aware of at any point in time,” noting that her testimony was more
detailed than her forensic interview. Trial counsel could not recall definitively if he had
objected to the victim’s testimony about the kissing. Trial counsel said that he would not
define the kissing as a sexual assault, but he would define it as “inappropriate behavior.”
Trial counsel acknowledged that he did not ask for an election of offenses at the close of
the State’s proof, explaining that the other incidents did not “r[i]se to the same level of the
offense charged.”
Trial counsel said that prior to trial, he knew the victim’s forensic interview was
video recorded and recalled that a hearing was held regarding the admissibility of the video
at trial. Trial counsel said the State announced “very late in the game before the first trial
[date]” that it wanted to introduce the photographs of the victim’s vagina which were taken
during the forensic examination, and the trial date was continued to allow the defense to
prepare for the photographs. Trial counsel said that the photographs “were pretty graphic”
and that they “had the possibility to inflame the jury.” He could not recall whether he made
specific objections to the photographs; however, he did not think the State committed a
Brady violation by failing to disclose the photographs earlier in discovery.
Trial counsel recalled that the victim had a bicycle wreck on the day of the offense
and that the defense theory was that the victim’s injuries could have been caused by the
wreck. Trial counsel thought his cross-examination of the victim was “fairly decent.” He
also thought he thoroughly cross-examined Dr. Lakin and “was able to bring out to Dr.
Lakin that there were certainly other reasons for any of these abrasions than what they were
alleging against” the Petitioner. Trial counsel said that the Petitioner was convicted
because he allegedly touched the victim’s vagina.
Trial counsel said that the State made a disclosure “very late in the game” that it
intended to introduce the victim’s blanket and underwear into evidence. Trial counsel did
not think the failure to disclose the blanket and underwear at an earlier time was a Brady
violation.1 Trial counsel explained that the prosecutor told trial counsel that she was not
sure whether the State was aware that the victim’s blanket and her underwear “existed until
the time [they] were produced just prior to trial.” The prosecutor told trial counsel that the
items were tested for DNA but that no DNA was discovered. Trial counsel acknowledged
1
Post-conviction counsel requested permission to supplement the record with the Millington police
report to show the police did not have the victim’s blanket or her underwear at the time of the Petitioner’s
arrest. However, the record does not reflect that the record was supplemented with such a report.
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that “any testing that doesn’t bring a conclusion that assists the state with its burden of
proof is certainly favorable to the defense.”
Trial counsel said that during direct examination, he asked the Petitioner if the
victim had any prior knowledge of sexual events. Trial counsel was “[v]ery suspicious” of
the victim’s “very anatomically correct” description of how the vaginal redness occurred,
and he wanted to establish how the victim became familiar with “certain language – certain
body parts.” Trial counsel said that the defense wanted to introduce evidence through a
Rule 412 motion to support the defense theory that the victim “had been coached” and to
explain how the victim was “able to make the description that she made.”2 The defense
ultimately did not pursue a Rule 412 hearing because “there was a discussion of, you know,
whether statements that would be made during that hearing could eventually lead to some
sort of additional aggravated perjury or perjury charges.”
Trial counsel said that C.M. was a very “sympathetic” witness, especially testimony
“about how her life had been affected by the breadwinner in the family, not being able to
work, and then having to move and go on welfare.” Trial counsel said that during cross-
examination, he failed to ask C.M. about statements she had allegedly made to Bubba
2
Tennessee Rule of Evidence 412(b) provides that in certain situations when a defendant is charged
with a sexual offense, the “[r]eputation or opinion evidence of the sexual behavior of an alleged victim of
such offense is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this
rule and required by the Tennessee or United States Constitution.” Specifically,
Evidence of specific instances of a victim’s sexual behavior is
inadmissible unless admitted in accordance with the procedures in
subdivision (d) of this rule, and the evidence is:
(1) Required by the Tennessee or United States Constitution, or
(2) Offered 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, or
(3) If the sexual behavior was with the accused, on the issue of
consent, or
(4) If the sexual behavior was with persons other than the accused,
(i) to rebut or explain scientific or medical evidence, or
(ii) to prove or explain the source of semen, injury, disease, or
knowledge of sexual matters, or
(iii) to prove consent if the evidence is of a pattern of sexual
behavior so distinctive and so closely resembling the accused’s version of
the alleged encounter with the victim that it tends to prove that the victim
consented to the act charged or behaved in such a manner as to lead the
defendant reasonably to believe that the victim consented.
Tenn. R. Evid. 412(c).
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Williams that she was “out to get [the Petitioner].” As a result, trial counsel was unable to
call Bubba Williams to impeach C.M.’s testimony and show that she “coached” the victim.
Trial counsel recalled that the victim’s blanket was used for demonstrative purposes
during trial. Trial counsel said that he did not object to the introduction of the blanket,
noting that “we had the stipulation in place . . . [a]nd one of the things that I wanted to
argue was that the stipulation was in our favor.” Trial counsel noted that the laboratory
that had done the testing had drawn small dark circles on the blanket. Trial counsel did not
recall if the reason for the circles was explained to the jury.
Trial counsel said that he did not make any objections regarding the foreperson of
the grand jury. Regarding a motion to suppress, trial counsel said that he did not recall
“seeing anything that was of concern to suppress.” Trial counsel noted that the Petitioner
received the warrant for his arrest more than a month after his arrest, but trial counsel did
not challenge the validity of the Petitioner’s arrest.
Trial counsel said that he filed a motion for new trial and one or two amendments
to the motion because he felt “there were multiple issues that occurred at trial that needed
to be brought up on appeal.” Trial counsel “was a bit stunned” that appellate counsel did
not raise more issues on appeal. Trial counsel acknowledged that generally the strategy on
appeal was not to raise any grounds that might impact the defense’s credibility, but
otherwise, to argue as many issues as possible because predicting which issues the
appellate court might grant relief on was difficult. Trial counsel was taught to always raise
sufficiency and sentencing issues on appeal. Trial counsel said that the “one thing
[appellate counsel] did argue was fairly well settled, albeit new but well-settled law.” Trial
counsel said that he made himself available to appellate counsel if he had any questions
about the issues in the motion for new trial but that appellate counsel never contacted him.
Trial counsel thought he spoke with appellate counsel shortly before appellate counsel
moved out of state.
Trial counsel said that he and the Petitioner discussed whether the Petitioner should
accept a plea offer. Trial counsel told the Petitioner that if he pled guilty to a sexual offense,
he would be subject to community supervision for life and placed on the sexual offender
registry. Trial counsel said that the Petitioner “was adamantly against being on community
supervision and on the registry.”
On cross-examination, trial counsel said Dr. Lakin testified at trial that the victim’s
injuries were consistent with the victim’s version of events; however, Dr. Lakin could not
say conclusively that the injuries were caused by abuse. Trial counsel extensively cross-
examined Dr. Lakin on whether the injuries could have been caused by other means, and
she agreed the injuries could have been caused by something other than sexual abuse. Dr.
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Lakin said that the victim described the Petitioner’s making a “circular motion” when
committing the offense, and Dr. Lakin used the photographs taken of the victim during the
forensic examination “to describe sort of the unique pattern that matched what the victim
had described happened.”
Trial counsel acknowledged that often appeals challenging the sufficiency of the
evidence were not successful. Trial counsel opined that successful challenges to the
sufficiency of the evidence usually involved the State’s failure to prove the element of
intent. In the Petitioner’s case, intent was not an issue; instead, the issue was whether the
acts happened or whether the Petitioner was the person who committed the acts.
Trial counsel agreed that in the motion for new trial, he raised an issue regarding
whether the trial court erred by “limiting questions of the defense witness, Bubba
Williams.” Nevertheless, trial counsel conceded that “there’s no doubt that the initial error
falls on me for not asking [C.M.] the proper question[s]” to lay the foundation for asking
Williams about the impeachment evidence.
Trial counsel said that he had made a Rule 412 motion so that witnesses could testify
regarding the victim’s prior exposure to sexual acts or sexual “situations.” On the day of
the hearing, the witnesses who were supposed to testify in support of the motion were
uncooperative and refused to testify on the Petitioner’s behalf. Trial counsel acknowledged
that the witnesses had no reason to testify that they had committed sexual acts against the
victim. Moreover, if the witnesses had testified that they did not do anything to the victim,
counsel would have had to accept it. Accordingly, counsel and the Petitioner decided not
to proceed with the motion and instead asked to make an offer of proof. Trial counsel
explained that “in what was a back and forth between [the trial court and the Petitioner],
concerns were raised about, you know, these people are denying it, if you come on and this
is proven to be a false statement then you have made, then you would be committing
perjury.” Trial counsel agreed that in the motion for new trial, he raised an issue regarding
whether the “trial court erred in not allowing, under threat of perjury, the [Petitioner] to
make an offer of proof regarding (indiscernible), motion for 412 evidence.”
Trial counsel agreed that he also raised an issue regarding whether the trial court
erred by allowing the State to lead the victim on direct examination. Trial counsel
conceded that it was not unusual for a court to give the State “latitude” in questioning a
child victim. Trial counsel had been concerned that the victim was “just parroting” what
the State said; he acknowledged, however, that her testimony was consistent with her
forensic interview.
Trial counsel acknowledged that he raised a Rule 404(b) objection to the admission
of other acts such as the Petitioner’s kissing the victim but that the trial court ruled the acts
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were admissible as “grooming behaviors.” Nevertheless, trial counsel raised the issue
again in the motion for new trial. Trial counsel said that he did not see the need for an
election of offenses because he thought the indictment was clear regarding the offense on
which the State was relying to convict the Petitioner. Trial counsel said that he never found
any support for the argument that the selection of the grand jury foreperson was improper.
Bubba Williams testified that he and the Petitioner were close friends and that they
had known each other for twenty years. Williams went to the Petitioner’s house every
other week or every three or four weeks. Williams said that he was at the Petitioner’s trial
and was available to testify, but he was never called.
Williams said that approximately four weeks prior to the Petitioner’s arrest, he was
at the Petitioner’s house. The Petitioner and C.M. were arguing about the victim’s
adoption. The week following the argument, C.M. called Williams, which was “out of the
ordinary.” C.M. asked Williams to “go and buy her a porno book.” Williams asked why
she wanted the book, and C.M. responded that it was for her “personal use.” Williams
called the Petitioner and told him about the request. The Petitioner told Williams to get
the book and that he would ask C.M. about it later. Williams obtained the book for C.M.
Williams said that the next time he visited the Petitioner’s house, the Petitioner and
C.M. again argued about the victim’s adoption. The Petitioner told C.M. that he wanted to
discuss the matter with an attorney. When the Petitioner left the room, C.M. said, “‘I’m
getting rid of him, whatever it takes.’” Williams said that C.M. was upset because the
Petitioner would not adopt the victim. The Petitioner later told Williams that his attorney
had advised him against adopting the victim because if he and C.M. ever divorced, the
Petitioner would be required to pay child support.
Williams recalled that the Petitioner was arrested the following week. C.M. called
Williams to tell him about the arrest. Williams asked for details, and C.M. told Williams
that the Petitioner had been arrested for “[f]ondling” the victim. C.M. explained that she
and the Petitioner “would swap nights on putting [the] kids to bed. He would lay in the
bed with them one night and put them to sleep, and [she] would lay in the bed with them
the other night and put them to sleep.’” C.M. said that she had seen the “covers moving,”
but both the victim and the Petitioner were dressed. Williams told her that the Petitioner
could have been scratching his leg.
Williams said that the Petitioner called him from jail and asked him to go to the
bank and withdraw money from the Petitioner’s pension plan so the Petitioner could hire
an attorney. Williams called the bank and was told that the Petitioner was too young to
withdraw the money from the pension plan. The bank also said that C.M. had already tried
to withdraw money from the Petitioner’s pension plan.
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On cross-examination, Williams said that prior to trial, he gave a statement to the
defense investigator. Williams said that his post-conviction testimony may have contained
information he did not tell the defense investigator. He explained that he did not remember
going to the bank to try to get the Petitioner’s money until after he had spoken with the
investigator. Williams also did not tell the investigator about buying the “porno book” for
C.M. Williams told trial counsel about the book, but trial counsel told Williams that it
“wouldn’t matter,” that it “wouldn’t be admissible,” and that “he [did not] know if they
would even look at that or not.” Williams acknowledged that he told the investigator that
C.M. called him a couple of times when she was looking for the Petitioner.
Williams acknowledged he told the investigator that when C.M. said she would get
rid of the Petitioner, Williams thought she was just upset about the Petitioner’s reluctance
to adopt the victim. Williams further acknowledged that he did not tell the investigator
that C.M. said she and the Petitioner took turns putting the children to bed.
Williams said that C.M. usually “acted like a good Christian person” but that in the
weeks prior to the Petitioner’s arrest, she began acting differently. Williams did not know
if the change in her behavior could be attributed to her marital problems.
Upon questioning by the post-conviction court, Williams said that he thought the
Petitioner and C.M. were still married at the time of the post-conviction hearing, but he did
not know how long they had been married. Williams could not recall if he had spoken with
trial counsel before or after he spoke with the defense investigator.
Williams said that the Petitioner was in jail for three and one-half years before trial.
He recalled that the State “actually had a plea bargain for him, I believe, but he thought
everything would be okay, I guess; and, you know, he stayed here waiting to wait on a
trial.” Williams acknowledged that he did not tell the police that the Petitioner was
innocent.
The Petitioner testified that he was convicted of aggravated sexual battery that
allegedly occurred on September 3, 2009. The Petitioner said that on September 3, he and
C.M. invited some friends to their house and that the children were at home. The Petitioner
and C.M. drank alcohol that night.
Regarding his claims of ineffective assistance, the Petitioner contended that trial
counsel should have requested an election of offenses because the State presented evidence
of uncharged offenses. The Petitioner maintained that at trial, the victim’s testimony was
confusing as to whether on prior occasions the Petitioner had merely kissed her or had also
touched her.
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The Petitioner said that he allegedly touched the victim on top of her underwear;
however, the State introduced photographs showing “redness” on the victim’s vagina. The
Petitioner contended that the redness could have been caused by the victim’s bicycle
accident that day.
The Petitioner contended that trial counsel gave him incorrect legal advice during
plea negotiations. The Petitioner said that when trial counsel told him about the State’s
offer, trial counsel said that the discovery was complete. The Petitioner said that at the
“plea deadline hearing” in November 2011, he was “told by . . . [the j]udge . . . that from
this day forward there would be no more plea deals.” The Petitioner asked for trial
counsel’s advice, and trial counsel responded that he did not think the State had any
evidence and that he thought the Petitioner “st[oo]d a good chance.” Trial counsel said
that the Petitioner had to decide whether to plead guilty or proceed to trial. The Petitioner
made the decision to go to trial based on the information he received from trial counsel.
The Petitioner said that by the time of trial, the State had photographs of the injuries to the
victim’s vagina.
The Petitioner acknowledged that trial counsel first learned of the photographs
immediately prior to a pretrial hearing. Trial counsel filed a motion in limine to exclude
the photographs, and the trial court ruled against the Petitioner. The Petitioner said that he
and trial counsel had prepared for trial with no knowledge of the photographs. The
Petitioner thought trial counsel should have asked the trial court to allow further plea
negotiations after the photographs were disclosed.
The Petitioner said that if he had known he would be subject to community
supervision for life, he “probably” would have pled guilty. The Petitioner explained, “[A]t
that time, community supervision wasn’t – as a Class-C misdemeanor in criminal attempt,
I wouldn’t be required to be placed under community supervision. And [trial counsel]
never explained that to me.” Post-conviction counsel asked the Petitioner if he would have
chosen to plead guilty if he had known about the photographs. The Petitioner responded,
“I mean, I really can’t answer that question. I mean, I may and I may not have – probably
more than not would have . . . . I probably would have – hindsight, I would have taken the
plea deal.”
The Petitioner acknowledged that trial counsel pointed out to the jury that the
photographs were not mentioned in the forensic examination report and that a box on the
report was not checked to reflect that photographs had been taken. The Petitioner also
complained about the late disclosure of the victim’s blanket, her nightgown, and her
underwear. The Petitioner contended that trial counsel’s cross-examination of Dr. Lakin
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was inadequate and that trial counsel should have objected to Dr. Lakin’s testimony and
report.
The Petitioner explained that as part of his defense, he wanted to show the victim’s
“sexual knowledge because she was so vivid and graphic about things.” The Petitioner
said that prior to trial, he informed the trial court that he wanted his nieces and nephews to
testify about an incident in which the victim was caught in a closet with his nephew, but
when his nieces and nephews came to court, “they said that they weren’t going to testify.
And I don’t know if they said it wasn’t true or whatever.” The Petitioner contended the
trial court told him that “‘[i]f you get up there and say anything, I’m going to get you with
aggravated perjury.’” The post-conviction court responded that it did not remember
making such a statement but acknowledged that it had known “in the past, where
defendants would get on the stand during pretrial motions and lie; and they would be
indicted for aggravated perjury for lying on a pretrial motion.” The post-conviction court
stated, “It didn’t help [the Petitioner’s] cause by saying something that would be contrary
to what other witnesses would say; because on a pretrial motion, or something like that, if
you’re found to be lying, then you could be charged with aggravated perjury.” The
Petitioner said that he was prejudiced by the trial court’s threat of a perjury charge.
The Petitioner contended that trial counsel’s cross-examination of C.M. was
incomplete and that the failure to ask certain questions of C.M. prevented trial counsel from
being able to call Bubba Williams as a defense witness.
The Petitioner said that he asked trial counsel to challenge the process of selecting
the grand jury foreperson. The Petitioner said that in his petition, he also raised the
selection of the grand jury foreperson “as a stand-alone issue under due process.” The
post-conviction court responded that it would not allow the Petitioner to pursue that issue,
noting that trial counsel was not appointed until after the Petitioner was indicted.
At the conclusion of the hearing, the post-conviction court held that the Petitioner
failed to prove that he received the ineffective assistance of trial counsel or appellate
counsel. On appeal, the Petitioner challenges this ruling.
II. Analysis
To be successful in a claim for post-conviction relief, the Petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
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Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled
to substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.When the Petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the [P]etitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). To establish deficient performance, the Petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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.” Strickland,
466 U.S. at 694. Moreover,
[b]ecause [the P]etitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in any
particular order or even address both if the [Petitioner] makes
an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to
determine the effectiveness of trial counsel and appellate counsel. See Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).
This court has previously observed:
“[F]ailure to preserve and/or assert all arguable issues on
appeal is not per se ineffective assistance of [appellate]
counsel, since the failure to do so may be a part of the counsel’s
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strategy of defense. Counsel is not constitutionally required to
argue every issue on appeal, or present issues chosen by his
client. The determination of which issues to present on appeal
is a matter of counsel’s discretion.”
State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v. Swanson,
680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate counsel [is] not
constitutionally required to raise every conceivable issue on appeal.” Carpenter, 126
S.W.3d at 887. “[T]he determination of which issues to raise on appeal can be
characterized as tactical or strategic[ ] choices, which . . . should not be ‘second guessed’
on appeal, subject, of course, to the requisite professional standards.” Cooper v. State, 849
S.W.2d 744, 747 (Tenn. 1993).
Our supreme court has set forth the following “non-exhaustive list” of factors which
“is useful in determining whether an attorney on direct appeal performed reasonably
competently in a case in which counsel has failed to raise an issue”:
1) Were the omitted issues “significant and obvious”?
2) Was there arguably contrary authority on the omitted issues?
3) Were the omitted issues clearly stronger than those
presented?
4) Were the omitted issues objected to at trial?
5) Were the trial court’s rulings subject to deference on appeal?
6) Did appellate counsel testify in a collateral proceeding as to
his appeal strategy and, if so, were the justifications
reasonable?
7) What was appellate counsel’s level of experience and
expertise?
8) Did the petitioner and appellate counsel meet and go over
possible issues?
9) Is there evidence that counsel reviewed all the facts?
10) Were the omitted issues dealt with in other assignments of
error?
11) Was the decision to omit an issue an unreasonable one
which only an incompetent attorney would adopt?
Carpenter, 126 S.W.3d at 888.
A. Full and Fair Hearing
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Generally, “[r]elief under [the Post-Conviction Procedure Act] shall be granted
when the conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
Tenn. Code Ann. § 40-30-103. “‘Due process is flexible and calls for such procedural
protections as the particular situation demands.’” Seals v. State, 23 S.W.3d 272, 277 (Tenn.
2000) (quoting Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993)). “The
flexible nature of procedural due process requires an imprecise definition because due
process embodies the concept of fundamental fairness.” Id. “All that due process requires
in the post-conviction setting is that the defendant have the opportunity to be heard at a
meaningful time and in a meaningful manner.” Stokes v. State, 146 S.W.3d 56, 61 (Tenn.
2004) (internal quotation marks and citations omitted). In a post-conviction proceeding,
the requirement of a “‘full and fair hearing’” is fulfilled when a “‘petitioner is given the
opportunity to present proof and argument on the petition for post-conviction relief.’”
Brimmer v. State, 29 S.W.3d 497, 531 (Tenn. Crim. App. 1998) (House v. State, 911
S.W.2d 705, 714 (Tenn. 1995)). The determination of whether the prospective evidence is
relevant is left to the post-conviction court’s discretion, which this court will not overturn
without a showing of abuse of discretion. See State v. Forbes, 918 S.W.2d 431, 449 (Tenn.
Crim. App. 1995)). At the hearing, the “[p]roof upon the [P]etitioner’s claim or claims for
relief shall be limited to evidence of the allegations of fact in the petition.” Tenn. Code
Ann. § 40-30-110(c).
1. Continuance
First, we will address the Petitioner’s contention that he was denied a “full and fair”
post-conviction hearing after the post-conviction court refused to grant a continuance so
that he could secure the attendance of appellate counsel, against whom the Petitioner raised
allegations of ineffective assistance of counsel. The decision whether to grant a
continuance rests within the sound discretion of the trial court. See State v. Mann, 959
S.W.2d 503, 524 (Tenn. 1997). A post-conviction hearing “shall not be continued except
by order of the court finding that unforeseeable circumstances render a continuance a
manifest necessity.” Tenn. Sup.Ct. R. 28, § 8(B). The trial court’s decision may be
reversed only if the trial court abused its discretion and the Petitioner was improperly
prejudiced. See State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). A
Petitioner is improperly prejudiced by the denial of a motion for continuance when “a
different result might reasonably have been reached if the continuance had been granted.”
Id. A criminal defendant’s constitutional right to compulsory process to obtain witnesses
in their favor is not unlimited and “extends to ‘competent, material, and resident witnesses
whose expected testimony will be admissible.’” William Darryn Busby v. State, No.
M2012-00709-CCA-R3-PC, 2013 WL 5873276, at *8 (Tenn. Crim. App. at Nashville, Oct.
30, 2013) (quoting Bacon v. State, 385 S.W.2d 107, 109 (Tenn. 1964)); see Paul Graham
- 18 -
Manning v. State, No. M2005-02876-CCA-R3-PC, 2007 WL 4116487, at *12 (Tenn.
Crim. App. at Nashville, Nov. 13, 2007).
The record reflects that despite repeated continuances, the Petitioner waited until
the day before the post-conviction hearing to complain about his inability to secure the
attendance of appellate counsel, who was an out-of-state resident. Neither the Petitioner
nor post-conviction counsel requested that a subpoena be issued for appellate counsel.
Regardless, the post-conviction court correctly stated that it did not have the authority to
issue a subpoena to force appellate counsel to testify at a post-conviction hearing. See
Tenn. Code Ann. § 40-17-204 (providing subpoena power to compel a non-resident witness
to testify in front of a grand jury or at a criminal proceeding). The Petitioner has failed to
establish that granting yet another continuance would have benefitted the Petitioner.
2. Search and Seizure
Next, the Petitioner maintains that the post-conviction court deprived him of the
ability to have a full and fair hearing by not allowing him to present proof that trial counsel
was ineffective by failing to challenge the Petitioner’s “unlawful search, seizure, and illegal
detainment by the Millington Police Department.” The Petitioner contends that the police
officers entered his home without a search warrant, questioned him without advising him
of his Miranda rights, and detained him for over forty-eight hours before he received a
probable cause determination by a magistrate.
In his post-conviction petition, the Petitioner contended that trial counsel should
have challenged his arrest, maintaining that the police entered his residence without
probable cause, without his consent, and without a warrant. At the post-conviction hearing,
trial counsel testified that he saw nothing in the Petitioner’s case that merited suppression.
The post-conviction court noted that the Petitioner did not make “a statement of admission”
that was used against him at trial.
Generally,
[t]he applicable evidentiary rule requires appellants who
challenge rulings that exclude evidence to make an offer of
proof unless the substance of the evidence is otherwise
apparent. On appeal, an appellate court may not find that the
exclusion of evidence was error unless a party’s substantial
right was affected and an offer of proof is contained in the
record. Tenn. R. Evid. 103(a)(2). An appellate court may find
error where no offer was made if the substance of the evidence
and the specific evidentiary basis for admission are apparent
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from the record. Id. Consequently, though not explicitly
stated, it is apparent that courts are required, in appropriate
circumstances, to allow offers of proof when evidence is
excluded so as to enable consideration of the issue on appeal.
Alley v. State, 882 S.W.2d 810, 815-16 (Tenn. Crim. App. 1994).
The trial transcript reflects that Millington Police Officer Timothy Ryan Russell
testified that C.M. gave the officers permission to enter the house in which she lived with
the Petitioner. Our supreme court has held that “‘[t]he consent of one who possesses
common authority over premises or effects is valid as against the absent, non-consenting
person with whom that authority is shared.’” State v. Stanfield, 554 S.W.3d 1, 13 (Tenn.
2018) (quoting State v. Bartram, 925 S.W.2d 227, 230-31 (Tenn. 1996)). Specifically, “[a]
wife can consent to the search of her home, and if objects are found [that] would
incriminate her husband, such objects are admissible in evidence.” Id. (internal quotation
marks and citations omitted). The Petitioner did not call any witnesses or offer any
evidence at the post-conviction hearing to show that the search was illegal. Accordingly,
the Petitioner has failed to show that he was prejudiced. The Petitioner is not entitled to
relief on this issue.
Regarding the Petitioner’s complaint that he was not advised of his Miranda rights,
we note that generally, the Fifth Amendment to the United States Constitution and article
I, section 9 of the Tennessee Constitution provide a privilege against self-incrimination to
those accused of criminal activity, making an inquiry into the voluntariness of a confession
necessary. See State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998). As our supreme
court has explained:
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.
1602, 1612, 16 L. Ed. 2d 694 (1966), the United States
Supreme Court held that “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” The
procedural safeguards must include warnings prior to any
custodial questioning that an accused has the right to remain
silent, that any statement he makes may be used against him,
and that he has the right to an attorney.
State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). Miranda warnings are necessary
only in situations involving custodial interrogation or its functional equivalent. See, e.g.,
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Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); State v. Dailey, 273 S.W.3d 94, 102-
03 (Tenn. 2009).
In the instant case, the record reflects that the Petitioner was sitting on the couch in
his home when he spoke with the police and gave the non-inculpatory statement that was
used at trial. The Petitioner testified at trial that at the time he spoke with the police, he
did not think the police had an arrest warrant or probable cause to arrest him. The Petitioner
has not shown that he was subjected to custodial interrogation requiring the police to advise
him of his Miranda rights. See State v. Eric Foster, No. E2018-01205-CCA-R3-CD, 2019
WL 1546996, at *14 (Tenn. Crim. App. at Knoxville, Apr. 9, 2019).
Regarding the Petitioner’s claim that trial counsel was ineffective by failing to
challenge the State’s delay in seeking a probable cause determination after his arrest, we
note that “[w]hen a person is arrested without a warrant, the law requires the arresting
authorities to take him or her before a magistrate to ‘seek a prompt judicial determination
of probable cause.’” State v. Bishop, 431 S.W.3d 22, 42 (Tenn. 2014) (quoting Gerstein
v. Pugh, 420 U.S. 103, 125 (1975)). In the event of a warrantless arrest, the Fourth
Amendment requires a prompt judicial determination of probable cause as a prerequisite
to the extended detention of an individual. State v. Carter, 16 S.W.3d 762, 765 (Tenn.
2000). In Tennessee, these hearings are often referred to as “‘Gerstein hearings.’” Bishop,
431 S.W.3d at 42. Initially, we note that the Petitioner presented no proof that he suffered
a Gerstein violation. Moreover, the Petitioner did not establish any connection between
his detention and the evidence adduced at trial; therefore, the Petitioner failed to establish
a Fourth Amendment violation. See State v. Clayton, 535 S.W.3d 829, 849 (Tenn. 2017).
Additionally, the Petitioner summarily raised the suppression issue as a “stand-
alone” claim. However, because the Petitioner failed to support this claim with any
argument, this claim is waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P.
27(a)(7).
B. Rule 404(b)
The Petitioner contends that trial counsel was ineffective because he failed to raise
an objection pursuant to Tennessee Rule of Evidence 404(b) when the State adduced proof
of other alleged sexual crimes that occurred outside the date specified in the indictment.
We note that at trial, the victim clarified that the Petitioner had touched her sexually on one
occasion and that on another occasion he had given her a “grownup” kiss. Trial counsel
testified that he thought he objected to the testimony about the kissing and that the trial
court ruled the State could present evidence of the “grooming” that led to the charged
offense. The post-conviction court noted that trial counsel testified that the kiss was “‘other
innocuous inappropriate behavior’” and that the indictment alleged a single incident of
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fondling. Further, trial counsel emphasized to the jury that the Petitioner’s kissing was not
inappropriate and that the Petitioner never touched her inappropriately. Therefore, the
record reflects that trial counsel did object to the testimony regarding other acts but that
the objection was overruled.
The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise a 404(b) issue on direct appeal. The Petitioner failed to support this claim
with any argument; therefore, this claim is waived. See Tenn. Ct. Crim. App. R. 10(b);
Tenn. R. App. P. 27(a)(7).
C. Election of Offenses
The Petitioner contends that trial counsel was ineffective by failing to request an
election of offenses after the State adduced proof of other uncharged sexual conduct,
namely the Petitioner’s kissing the victim. The post-conviction court stated that if the State
had adduced proof of any additional incidents of digital penetration, the State would have
been required to make an election of offenses; however, “here there wasn’t anything to
elect. The only allegation of actual sexual misconduct was on the day in question.” The
post-conviction court noted that the indictment clearly charged the Petitioner with engaging
in sexual contact with the victim on September 3, 2009. The post-conviction court asserted
that any motion for an election of offenses would have been frivolous.
Trial counsel testified that he did not request an election of offenses because he did
not think it was warranted. Generally, the State must make an election of offenses when it
“adduces proof of multiple instances of conduct that each match the allegation contained
in a single charged count.” State v. Smith, 492 S.W.3d 224, 232-33 (Tenn. 2016). The
Petitioner was charged with aggravated sexual battery, which is unlawful sexual contact
with the victim by the defendant when the victim was less than thirteen years old. Tenn.
Code Ann. § 39-13-504(a)(4). Tennessee Code Annotated section 39-13-501(6) defines
sexual contact as “the intentional touching of the victim’s . . . intimate parts, or the
intentional touching of the clothing covering the immediate area of the victim’s . . . intimate
parts, if that intentional touching can be reasonably construed as being for the purpose of
sexual arousal or gratification[.]” “Intimate parts” include “the primary genital area, groin,
inner thigh, buttock or breast of a human being[.]” Tenn. Code Ann. § 39-13-501(2). Thus,
kissing cannot be construed as an act of aggravated sexual battery. Moreover, the
indictment specified that the aggravated sexual battery occurred on September 3, and the
victim testified that the kissing occurred prior to that date. See generally State v. Rickman,
876 S.W.2d 824 (Tenn. 1994). The State repeatedly mentioned the date of the offense and,
during closing argument, emphasized that the charges related to the allegations of fondling
the victim underneath the blanket. Therefore, no election of offenses was necessary. We
agree that trial counsel was not deficient for failing to ask for an election of offenses.
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The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise an issue regarding the election of offenses on direct appeal. The Petitioner
failed to support this claim with any argument, thereby waiving this claim. See Tenn. Ct.
Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).
D. Admission of Photographs
The Petitioner contends that trial counsel was ineffective by failing to object to the
admission of the photographs taken during the victim’s forensic examination. However,
the record reveals that trial counsel did object to the untimely disclosure of the photographs
and filed a motion in limine to prohibit their admission at trial. Trial counsel again raised
the objection at trial, but the trial court overruled the objection.
The Petitioner contends that the photographs were “unnecessary and prejudicial.”
The post-conviction court held that the photographs were “extremely relevant to the
prosecution’s case to corroborate the victim’s testimony and prove that the victim was
indeed sexually assaulted.” The post-conviction court further held that the probative value
of the photographs substantially outweighed the danger of unfair prejudice. Additionally,
the post-conviction court noted that trial counsel filed a motion in limine to exclude the
photographs. Therefore, the post-conviction court determined trial court was not deficient
and that the Petitioner was not entitled to relief on this issue. We agree. The photographs
were used at trial to demonstrate why Dr. Lakin reached her conclusions regarding the
victim’s injuries. This court has held that a trial court may admit photographs of a child’s
genital area to assist a medical professional’s testimony regarding a victim’s injuries. See
State v. John Valentine, No. W2013-01002-CCA-R3-CD, 2014 WL 4792801, at *7-8
(Tenn. Crim. App. at Jackson, Sept. 25, 2014); see also State v. Wayne Sellers, No. W2013-
02771-CCA-R3-CD, 2014 WL 6491070, at *6-7 (Tenn. Crim. App. at Jackson, Nov. 20,
2014). We conclude that the Petitioner has failed to show that trial counsel was ineffective
on this issue.
The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise an issue regarding the photographs on direct appeal and summarily raises
this issue as a “stand-alone” claim. However, because the Petitioner failed to support these
claims with any argument, these claims are waived. See Tenn. Ct. Crim. App. R. 10(b);
Tenn. R. App. P. 27(a)(7).
E. Plea Negotiations
The Petitioner contends that trial counsel was ineffective because he failed to advise
Petitioner correctly during plea negotiations. The Petitioner maintains that he rejected the
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State’s plea offer because trial counsel informed him that the State’s discovery was
complete. However, just prior to trial, the State produced a photograph of the victim’s
vagina that was taken during her forensic examination and also submitted as exhibits the
victim’s blanket, her underwear, and her nightgown which had been tested for DNA. The
Petitioner also contends that trial counsel failed to advise him that he would be subject to
the sexual offender registry and lifetime supervision if he were convicted of the charged
offense at trial.
The post-conviction court noted that the Petitioner rejected the State’s plea offer
after trial counsel told him discovery was complete and advised him of their chances of
winning at trial. The post-conviction court found that trial counsel’s advice at the time of
the first plea offer was accurate. The post-conviction court stated that after the Petitioner
rejected the plea offer, the trial court stated that it would not “accept any further negotiated
pleas.” The post-conviction court observed that “[t]he nurse clinician had not indicated on
her records that photographs were taken [and] the State did not have the evidence either at
the time the offer was conveyed and discovered it just before trial.” The post-conviction
court found that trial counsel was not deficient during the plea negotiation process.
A petitioner who alleges he rejected a plea offer due to the ineffective assistance of
counsel
has the burden to show by a reasonable probability that, but for
counsel’s deficient representation, (1) he . . . would have
accepted the plea, (2) the prosecution would not have
withdrawn the offer, and (3) the trial court would have
accepted the terms of the offer, such that the penalty under its
terms would have been less severe that the penalty actually
imposed.
Nesbit v. State, 452 S.W.3d 779, 800-01 (Tenn. 2014) (citing Lafler v. Cooper, 132 S. Ct.
1376, 1385 (2012)).
In the instant case, the Petitioner has failed to meet this burden. Initially, the State
notes that the Petitioner failed to establish the exact terms of the plea offer. According to
the appellate record, immediately prior to trial the State told the trial court that the State
had made an offer that included a plea to “criminal attempt, six years.” During the post-
conviction hearing, the State explained that the plea offer had been “criminal-attempt
aggravated sexual battery, six years, Range I thirty percent, the ability to ask for probation.”
However, the Petitioner testified that the offer was for a plea to attempted sexual battery
and a six-year sentence to be served on probation. The Petitioner said that the conviction
- 24 -
was to be either a “class C felony” or a “class C misdemeanor” with release eligibility after
serving thirty percent of the sentence.
Tennessee Code Annotated section 39-13-504(b) provides that aggravated sexual
battery is a Class B felony. Tennessee Code Annotated section 39-13-505(c) provides that
sexual battery is a Class E felony. Tennessee Code Annotated section 39-12-107(a)
provides that “[c]riminal attempt is an offense one (1) classification lower than the most
serious crime attempted, unless the offense attempted was a Class C misdemeanor, in
which case the attempt would not be an offense.” Therefore, attempted aggravated sexual
battery is a Class C felony and attempted sexual battery is a Class A misdemeanor. A
Range I offender convicted of a Class C felony is subject to a sentence range of three to six
years. Tenn. Code Ann. § 40-35-112(a)(3). The sentence for a Class A misdemeanor is
no more than eleven months and twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1).
Thus, it seems clear from the record that the plea offer was for attempted aggravated sexual
battery, a Class C felony, and a six-year sentence.
The Petitioner also claims that trial counsel advised him prior to the plea hearing
that the State’s evidence against him was weak and that he had a “good chance” at trial.
The Petitioner acknowledges, however, that counsel’s advice was given before the State
produced the photograph, the victim’s underwear, her nightgown, and her blanket as
exhibits. We note that at the time of the plea hearing, trial counsel’s advice was reasonable
and was based upon the evidence available to trial counsel at the time. See Charles Glen
Connor v. State, No. M2017-01003-CCA-R3-PC, 2018 WL 4676353, at *7 (Tenn. Crim.
App. at Nashville, Sept. 27, 2018), perm. to appeal denied, (Tenn. Feb. 20, 2019).
Moreover, the Petitioner never affirmatively testified that he would have accepted
the plea offer. Indeed, his testimony on this matter was, at best, equivocal; the Petitioner
said that he “probably” would have accepted the plea or that he “may” or “may not have”
accepted the plea. See Joseph Lamont Johnson, Jr. v. State, No. M2012-02310-CCA-R3-
PC, 2014 WL 793636, at *9 (Tenn. Crim. App. at Nashville, Feb. 27, 2014) (“[T]he
petitioner’s own testimony on the issue was equivocal, as he testified at times that he would
have taken the offer and at other times that it was ‘highly likely’ or ‘possible’ that he would
have.”). Accordingly, the Petitioner failed to establish that he is entitled to relief on this
issue.
Further, the Petitioner complains in his brief that trial counsel failed to advise him
that he would be subject to community supervision for life if convicted of aggravated
sexual battery at trial and that he would not be subject to community supervision for life if
he accepted the plea offer. The Petitioner failed to provide citations to the record to show
any testimony in this regard at the post-conviction hearing and failed to support his
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argument with citations to authority. This issue is waived. See State v. Bonds, 502 S.W.3d
118, 144 (Tenn. Crim. App. 2016).
The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise on direct appeal an issue regarding trial counsel’s advice during the plea
process. As we concluded supra, trial counsel was not ineffective. Moreover, this court
has said:
[T]he practice of raising ineffective assistance of counsel
claims on direct appeal is “fraught with peril” since it “is
virtually impossible to demonstrate prejudice as required”
without an evidentiary hearing. Instead, “ineffective assistance
of counsel claims should normally be raised by petition for
post-conviction relief.”
State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citations omitted). The
Petitioner is not entitled to relief.
F. Right to Present a Defense
The Petitioner contends that trial counsel was ineffective by failing to challenge the
trial court’s infringement of the “Petitioner’s constitutional right to present a defense.” The
Petitioner maintains that when the Petitioner tried to make an offer of proof in support of
his Rule 412 motion, the trial court threatened to charge him with aggravated perjury.
The record belies the Petitioner’s contention. The trial transcript reveals that trial
counsel stated that in order to explain how the victim could have obtained knowledge of
sexual matters, he wanted the victim’s aunt and cousin to testify that the cousin and the
victim watched a pornographic video together. However, at the time of trial, the victim,
her aunt, and her cousin denied the allegations. Trial counsel said that the Petitioner had
told him that the victim’s grandmother had seen the victim and her cousin watching the
video; however, trial counsel acknowledged that the grandmother was not present to testify.
Trial counsel told the trial court that he learned from the Petitioner that “the grandmother
is who observed [the video watching incident] and then [the grandmother] told the, I guess,
aunt, who told [C.M.].” The Petitioner wanted to make an offer of proof. The trial court
cautioned the Petitioner that if he testified untruthfully about an event, and the other parties
to the event denied that it occurred, he possibly could be subject to perjury charges. The
trial court said, “So, I don’t know if it would be advisable. If he wants to take the stand,
he can come on up. And if he wants to come up and testify to this to establish a record,
come on up.” The trial court additionally stated that the multiple layers of hearsay might
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make the Petitioner’s potential testimony inadmissible. Trial counsel did not call the
Petitioner to make an offer of proof after the trial court’s warning.
At the post-conviction hearing, the Petitioner did not introduce testimony from the
victim’s aunt or cousin to reflect they would have been willing to testify at trial. Further,
the Petitioner did not specify what his offer of proof would have been nor did the Petitioner
explain how any exceptions to hearsay applied to make the evidence admissible. Hearsay,
“a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted,” is generally inadmissible
except ask provided by the Tennessee Rules of Evidence. Tenn. R. Evid. 801(c), 802.
Further, in order to admit “hearsay within hearsay,” each part of the combined statements
must conform with an exception to the hearsay rule. Tenn. R. Evid. 805. The Petitioner
has failed to establish that trial counsel was ineffective in this regard.
The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise the foregoing issue on direct appeal. However, the Petitioner failed to
support this claim with any argument; therefore, this claim is waived. See Tenn. Ct. Crim.
App. R. 10(b); Tenn. R. App. P. 27(a)(7).
G. Hearsay
The Petitioner summarily contends that trial counsel was ineffective by failing to
object to the hearsay testimony of three police officers and Dr. Lakin, who testified that
the victim said the Petitioner touched her vaginal area. The Petitioner also summarily
contends that appellate counsel was ineffective by failing to raise this issue on direct
appeal. However, the Petitioner makes no argument and cites no law in support of these
contentions; therefore, these issues are waived. Tenn. Ct. Crim. App. R. 10(b); see also
Tenn. R. App. P. 27(a)(7).
H. Cross-Examination of C.M.
The Petitioner contends that trial counsel was ineffective by failing to cross-examine
C.M. about a statement she made to Bubba Williams about getting rid of the Petitioner,
which in turn prevented trial counsel from asking Williams about the statement.
In the instant case, the post-conviction court found that trial counsel was deficient
when he failed to sufficiently cross-examine C.M. Nevertheless, the post-conviction court
found that Williams testimony at the post-conviction hearing was not credible, noting it
was “peculiar” that Williams waited years while his good friend was in jail before revealing
that C.M. had made the incriminating statement. The post-conviction court also found that
C.M. had no motive to coach the victim to make the accusations, noting that she had
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testified that the Petitioner had been the sole breadwinner for the family and that after the
offense, she and her children had to go on welfare. Therefore, the post-conviction court
found that the Petitioner failed to prove that he was prejudiced by any alleged deficiency.
The evidence does not preponderate against this finding.
The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise the foregoing issue on direct appeal. The Petitioner failed to support this
claim with any argument, waiving this claim. See Tenn. Ct. Crim. App. R. 10(b); Tenn.
R. App. P. 27(a)(7).
I. Enhancement and Mitigating Factors
The Petitioner contends that trial counsel and appellate counsel were ineffective by
failing to challenge the trial court’s application of enhancement and mitigating factors
during sentencing. The Petitioner maintains that he submitted to the post-conviction court
a list of the sentencing factors that trial counsel should have challenged. The Petitioner
contends that certain enhancements should not have applied because they were elements
of the offense of aggravated sexual battery. The post-conviction court found that “[t]rial
counsel did not fail to challenge the application of enhancement factors and the non-
application of mitigating factors.” On appeal, the Petitioner does not specify the factors,
make any further arguments, cite to the record, or cite any law in support of this issue. We
conclude that this issue is waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P.
27(a)(7); see also State v. Anthony Blackwell, No. M2016-01063-CCA-R3-CD, 2017 WL
2772688, at *13 (Tenn. Crim. App. at Nashville, June 26, 2017) (stating that simply
incorporating by reference a prior argument without giving proper citations to the record
or law or providing new argument fails to “comply with the basic rules of this court and to
provide sufficient analysis” for this court to address the claim, resulting in waiver of the
issue).
J. Prosecutorial Misconduct
The Petitioner contends that trial counsel was ineffective by failing to object to
multiple acts of prosecutorial misconduct. Specifically, he contends that trial counsel
should have objected to the admission of the victim’s blanket, on which were markings by
the TBI crime laboratory, “which could be inferred as markers for existing DNA, which
could convince the jury that the [Petitioner] either ejaculated on the blanket or that a rape
took place.”
In order to prevail on a claim of prosecutorial misconduct, the Appellant must
demonstrate that the conduct committed by the prosecution was so inflammatory or
improper that it affected the verdict to his detriment. Harrington v. State, 385 S.W.2d 758,
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759 (Tenn. 1965); State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997). The post-
conviction court found no evidence in the record of prosecutorial misconduct. Therefore,
the post-conviction court found that trial counsel was not deficient for failing to challenge
any alleged prosecutorial misconduct. The record does not preponderate against this
finding.
Moreover, we note that at the post-conviction hearing, trial counsel testified that he
agreed to stipulate to the admissibility of the blanket because testing revealed that no DNA
was present on the blanket; therefore, trial counsel thought that the blanket helped the
Petitioner’s case. This court has stated that, “[w]hen reviewing trial counsel’s actions, this
court should not use the benefit of hindsight to second-guess trial strategy and criticize
counsel’s tactics.” Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998). On
appeal, this court may not second-guess the tactical or strategic choices of counsel unless
those choices are based upon inadequate preparation, nor may we measure counsel’s
behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). The
Petitioner is not entitled to relief on this issue.
On appeal, the Petitioner also complains that trial counsel should have objected to
the State’s use of the word “rape kit” while questioning Dr. Lakin, which he contends was
an attempt to infer that a rape took place. However, the Petitioner did not raise this claim
in the lower court. We will not address issues raised for the first time on appeal. State v.
Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996); State v. Turner, 919 S.W.2d
346, 356-57 (Tenn. Crim. App. 1995).
The Petitioner also summarily contends that appellate counsel was ineffective for
failing to raise issues of prosecutorial misconduct on direct appeal. However, because the
Petitioner failed to support this claim with any argument, this claim is waived. See Tenn.
Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7).
K. Grand Jury Foreperson
The Petitioner contends that trial counsel was ineffective by failing “to challenge
the illegal selection process of the grand jury foreperson.” This issue has been addressed
by this court in numerous cases and found to be without merit. Nelson v. State, 499 S.W.2d
956, 956 (Tenn. Crim. App. 1972); David C. Duncan v. State, No. M2017-00277-CCA-
R3-ECN, 2017 WL 3078178, at *3 (Tenn. Crim. App. at Nashville, July 19, 2017); State
v. Antonio Crenshaw, No. W2014-01367-CCA-R3-CD, 2015 WL 2447717, at *14 (Tenn.
Crim. App. at Jackson, May 22, 2015); State v. Anthony R. Aikens, No. E2006-00528-
CCA-R3-CD, 2007 WL 1135492, at *7 (Tenn. Crim. App. at Knoxville, Apr. 16, 2007).
The Petitioner is not entitled to relief on this issue.
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L. Forensic Interview
The Petitioner contends that trial counsel was ineffective by failing “to object to the
introduction of the video of the victim’s forensic interview as substantive evidence or
request that a limiting instruction be given to the jury.” He also contends that appellate
counsel was ineffective by failing to raise this issue on direct appeal. The Petitioner makes
no further argument, gives no citations to the record, and cites no law in support of these
contentions. These issues are waived. See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App.
P. 27(a)(7).
M. Sufficiency of the Evidence
The Petitioner raises as “an ineffective assistance of counsel claim[] and also a
stand-alone claim” a challenge to the sufficiency of the evidence sustaining his conviction
of aggravated sexual battery. Initially, we note that “[i]t has long been established that the
sufficiency of the convicting evidence is not cognizable in a post-conviction proceeding.”
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Although the Petitioner
maintains that he raises the issue as an ineffective assistance claim, he makes no arguments
to support his claim regarding the ineffectiveness of counsel on this issue.
N. Brady Violation
As a stand-alone claim, the Petitioner contends on appeal that the State committed
a violation of Brady v. Maryland, 373 U.S. 83 (1963), by withholding evidence from the
Petitioner during the plea negotiation process. Specifically, the Petitioner contends that
the State withheld the victim’s blanket, nightgown, underwear, and the photographs of the
victim’s vagina. The Petitioner did not raise this as a stand-alone issue in the post-
conviction court, thereby waiving the issue.
O. Cumulative Error
The Petitioner contends that the cumulative errors denied him the right to a fair trial.
However, we have found no trial errors that individually or cumulatively warrant relief.
III. Conclusion
The judgment of the post-conviction court is affirmed.
_________________________________
NORMA MCGEE OGLE, JUDGE
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