Douglas L. Lyle, Sr. v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 15, 2015

DOUGLAS L. LYLE, SR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 103472 Jon Kerry Blackwood, Judge

No. E2015-00105-CCA-R3-PC – Filed December 4, 2015

The petitioner, Douglas L. Lyle, Sr., appeals the post-conviction court‟s denial of his

petition for relief from his aggravated sexual battery conviction, asserting that he

received ineffective assistance of counsel. After review, we affirm the judgment of the

post-conviction court denying relief.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Douglas L. Lyle, Sr.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Charme P. Allen, District Attorney General; and Kit Rodgers, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted by a Knox County Criminal Court jury of two counts

of aggravated sexual battery involving his granddaughter and was sentenced to

concurrent terms of twelve years. The petitioner appealed, and, on direct appeal, this

court reversed one of the convictions following a determination that the State‟s election

of offenses was inadequate as to one of the counts. The petitioner later filed an

application for permission to appeal to the Tennessee Supreme Court, which the court

denied.

The underlying facts of the case were recited by this court on direct appeal as

follows:

[The victim] testified that she was eleven years old at the time of

trial in July 2011. Her birth date was June 4, 2000, and she had just

finished the fifth grade. She lived with her mother, her stepfather, and her

brother, who was twelve years old. She also had three sisters who lived

with her father.

As [the victim] was growing up, she visited her father‟s parents, the

[petitioner] and his wife, Delilah (“Grandmother”). Sometimes she would

spend the night with them. She testified that she loved her grandfather, the

[petitioner], whom she called “papaw.” She also stated that he had made

her uncomfortable by touching her “wrongly.” When asked where he

touched her, she testified, “[m]y private.”

The prosecutor then showed [the victim] a drawing of a girl. As the

prosecutor pointed to different areas of the drawing‟s body, [the victim]

identified them with her own words, including “chest,” “butt,” and

“private.” She stated that she knew what the word “vagina” meant,

explaining that it referred to “[a] girl‟s part.” She agreed that she meant the

same by the word “private.”

The prosecutor next showed [the victim] a drawing of a man. When

asked what she called “the front private part where a man goes pee out of,”

she responded, “[p]rivate.” She confirmed that she had heard the word

“penis” and stated that it was a “boy‟s front part.” She agreed that her word

“private” and the word “penis” referred to the same thing.

When asked where the [petitioner] had touched her, [the victim]

stated, “[m]y chest, my private, and my butt.” She added that it had

happened more than once but not every time she visited. It started when

she was in kindergarten and ended when she was ten years old. She added

that the last time it happened, she was between the fourth and fifth grade.

[The victim] testified that the touchings occurred in her

grandparents‟ living room. She remembered it happening in the

[petitioner]‟s brown leather recliner chair. It also happened on a couch in

the living room and in the [petitioner]‟s bedroom. She explained that, on

one particular occasion, she was sitting next to the [petitioner] in his

recliner while they watched television. He touched her “private” with his

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hand, and the touching was both over and under her underwear. While his

hand was under her underwear, he rubbed, which felt “bad.” He also put

his finger inside of her, which felt “scratchy.” She also described the

sensation as “feel[ing] kind of weird.” She stated that he put his finger

inside of her more than once. She also stated that he would touch her

“private part” without putting his finger inside.

[The victim] testified that the [petitioner] also rubbed her “private

part” through her clothing, without putting his hand inside her clothing,

while they were sitting on the chair.

When asked what happened on the couch, [the victim] testified that

the [petitioner] touched her chest with his hand. She stated that this did not

occur “that much.” This touching occurred over her clothing. He also

touched her chest while she was sitting on his bed in his bedroom. She was

not sure if he ever touched her “private” in the bedroom. He did not touch

her “private” on the couch.

When asked if the [petitioner] said anything while touching her, [the

victim] testified that he told her, “Don‟t tell or we‟ll both get in trouble.”

Nevertheless, she told her mother in October 2009 about the touching. She

explained that she had not told anyone before because she was “scared and

embarrassed.” She added that she was scared that no one would believe

her. When her mother first came to her and inquired, she told her mother

“no” because she was “too scared.” She also testified that no one else had

touched her like that.

On cross-examination, [the victim] stated that the touchings usually

occurred in the mornings while Grandmother was still asleep. She also

stated that she had discussed the matter with her mother four times.

The victim‟s mother (“Mother”), testified that she and the victim‟s

father (“Father”) had divorced about four years previously. She currently

was married to George Michael Ailey, and the victim and her brother lived

with her and Ailey. While she and Father were married, they lived with

Father‟s parents, the [petitioner] and Grandmother. Mother stated that her

in-laws “were just like a mom and dad to” her. After she and Father

divorced, “things seemed okay at first.” After she married Ailey, however,

“it seemed like things kind of went downhill from there.” She added that

she did not feel as if they “cared for [Ailey] a whole lot.” However, they

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attended her wedding to Ailey. After the divorce, her children continued to

spend time with the [petitioner] and Grandmother.

Mother testified that the victim began wetting her pants in school

when she was in second or third grade. After [the victim] told her what had

happened, her accidents at school declined and then stopped.

Mother testified that she had a “very vivid dream” one night in

which she “found a pair of panties.” Ailey and Ailey‟s father were in the

dream. She awoke from the dream “frantic” and became concerned about

her children. The next day, she sat both her son and the victim down and

asked them if anyone had ever touched them inappropriately. [The victim]

shook her head, but Mother noticed that her eyes were filled with tears.

Mother called the victim‟s school to speak with a guidance counselor for

advice. She was given the number for ChildHelp, and she called them.

The next day, she took the victim in to speak with a counselor.

Later, Grandmother and “Aunt Mo”1 visited and spoke with the

victim outside of Mother‟s presence but with her permission.

On cross-examination, Mother testified that she and Father married

in February 1997. They had two children, the victim and her older brother,

Nicholas. They divorced in May 2007. After she and Father split up, she

and the children moved in with the [petitioner] and Grandmother (“the

Lyles”) and lived with them for about one year. The Lyles helped with

child care and took care of the children when needed. There were often

other children there, as well. Mother dated while she lived with the Lyles,

sometimes staying out all night. When she began staying out all night

frequently, Grandmother told her that “she felt that [Mother] was

neglecting the kids.” Mother started spending more time with the kids.

Mother sometimes took [the victim] with her on her nights out, and

they would stay with the man she dated before Ailey. [The victim] would

sleep on the floor next to the bed that Mother shared with her boyfriend.

Eventually, she and the children moved into a house with Ailey.

Sometimes when the children were at Father‟s on the weekend, she and

Ailey would have a party with other people. These parties included

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Mother explained that “Aunt Mo” was Grandmother‟s sister.

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alcohol, and sometimes women would flash their breasts.

Officer Mark Amos Taylor of the Knoxville Police Department

(“KPD”) testified that he was an investigator in the family crimes unit. He

spoke with the [petitioner] at the [petitioner]‟s home about [the victim]‟s

allegations. The [petitioner] denied the allegations but acknowledged that

he and [the victim] would sit in his recliner together. According to Officer

Taylor, the [petitioner] explained [the victim]‟s actions that resulted in his

hand sometimes touching her as follows: “She crawled out of the chair –

well, she crawled. She just rolled over face first and would go out. She‟d

do that all the time, like, and I kept telling her because my hand hit – would

end up in the wrong place, and I kept telling her, „[the victim], you‟re

breaking my arm. I can‟t do that.‟ ” Officer Taylor returned to the

[petitioner]‟s house at a later date and spoke with both the [petitioner] and

Grandmother. Officer Taylor testified that, at that time, the [petitioner] told

him that he was impotent.

Officer Taylor took a more “formal” statement from the [petitioner]

in February 2010 at the KPD. Investigator Lynn Everett also participated

in this interview, which was video-recorded. The video-recording was

admitted into evidence and played for the jury. During the interview, the

[petitioner] admitted to touching [the victim]‟s genital area with his hand

two or three times, and he also admitted that he did so because it excited

him. Toward the end of the interview, the [petitioner] voiced an apology to

the victim which Officer Taylor wrote down. The [petitioner] reviewed the

written apology after it was completed and signed it. The apology was

admitted into evidence and provides as follows:

[The victim],

I did not intend on hurting you when I rubbed you on

your privates (vagina). I didn‟t intend on it to happen; but, it

did and I am very sorry! I hope you can forgive me and get

along with a “well-prosperous” life. You did nothing wrong

– I did and I‟m sorry!

On cross-examination, Officer Taylor admitted that there was no

physical evidence corroborating [the victim]‟s allegations.

The [petitioner] testified that he was seventy-one years old. He had

been married to Grandmother for thirty-five or thirty-six years, and they

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had two sons. One of his sons, Father, had five children, one of whom is

[the victim]. Mother was the mother of [the victim] and Nicholas, and

Father‟s other three children were by Mother‟s sister, Ashley. He stated

that he was close to his grandchildren and loved them “to death.” Ashley‟s

children continued to visit him.

According to the [petitioner], Father and Mother dated in high

school and eventually married. Father and Mother lived with the

[petitioner] and Grandmother for a time. Later, they moved out and started

their family. When Father and Mother divorced, Mother and the children

returned to the [petitioner]‟s house to live. The [petitioner] testified that he

had no ill feelings toward Mother about the divorce, and he told her that she

was the daughter he never had. Over time, however, he and Grandmother

became concerned about Mother‟s dating behavior, particularly when

Mother would take [the victim] with her on overnight dates. Eventually,

Mother moved out, taking [the victim] and Nicholas with her. At that time,

she was dating a man named Michael. The [petitioner] continued to see

[the victim] and Nicholas frequently at the [petitioner]‟s house.

The [petitioner] stated that “all kids” were welcome at his house and

that he frequently had children other than his grandchildren visiting.

Grandmother‟s sister‟s children visited, and his own sister‟s children

visited. Lots of children visited during holiday celebrations.

The [petitioner] stated that he played checkers and put together

puzzles with [the victim] and that they also baked brownies and funnel

cakes together. He never had a problem with [the victim]. When he sat in

his favorite chair, she would climb up into his lap. Sometimes she would

take a nap in his lap. He testified that nothing improper ever took place in

his chair, on the couch in the living room, or on his bed.

The [petitioner] testified about [the victim]‟s movements when

getting out of his chair:

Normally, she would just get out, but there was one

particular time that she was sitting on my left leg, and I had

my arm on the chair, the recliner, and she rolled over the back

of my hand and rolled off, and I felt her pelvis bone on the

back of my hand as she rolled off. When that first happened,

you know, I didn‟t think much about it. But kids climb all

over you, get on your back and everything. I didn‟t think a

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whole lot about it the first time. The second time that it

happened I said, “[The victim], don‟t do that. You‟re hurting

my hand.” So she didn‟t say anything. She went on. A little

while later she come [sic] back, she got back in my lap again,

and she sat there a few minutes, and she rolled off again. I

said, “[The victim], don‟t do that. You‟re breaking my

hand.” She wasn‟t hurting me, but I just wanted her to stop,

because I was real uncomfortable with her doing that to me.

And I had – I had cut myself with a grinder that had a

cut off blade in it on my finger, which I still got a scar from it,

and it was in the bend of my finger which it healed kind of

like a callous, a real – just not – didn‟t have a scab on it, more

of a callous over it, and it was real rough. That third time she

got off, she went to the bathroom where my wife was at, and

my wife come [sic] in and jumped all over me, because she

had a scratch.

When asked where [the victim] had been scratched, the [petitioner]

testified, “I didn‟t know where at. It was in her private area, leg or thigh –

inner thigh. I don‟t know where it was at.” He also speculated that his

watch or one of his fingernails caused the scratch.

The [petitioner] recalled Officer Taylor coming to his house and

speaking with him. He told Officer Taylor “seven, eight, nine times” about

[the victim] sliding off of the chair. He told Officer Taylor that

Grandmother could verify what had happened, and he asked Officer Taylor

to return to the house to speak with her. When Officer Taylor returned,

they both spoke with him together.

After these interviews, Nicholas and [the victim] visited only once or

twice more, and he did not speak with [the victim] on either occasion. The

[petitioner] was very unhappy and upset about the separation from his

grandchildren. He determined “to find out what it was that was affecting

[his] granddaughter that she would make these allegations against [him].”

Accordingly, he set up the meeting with Officer Taylor in February.

About a year previously, the [petitioner] testified, he had been to

visit his doctor and had been prescribed Xanax. Occasionally, he would

take one-half of a tablet at night to help him sleep. On the morning of his

meeting with Officer Taylor at the police station, he was very nervous. He

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took a whole Xanax and, when he remained nervous, took two of his

wife‟s. He stated that he had never taken Xanax during the day before and

“had no idea how they would affect [him] during the day.” He took them

because he thought they would “just . . . relax [him] to where [he] wouldn‟t

be nervous.”

He arrived at the police station on time. He first spoke with Officer

Everett. By the time Officer Taylor joined them, the [petitioner] was

feeling “[p]retty much out of it.” When asked what he remembered about

his conversation with Officer Taylor, the [petitioner] testified,

I remember him coming in. I remember the statement

coming up about her sliding off my hand, and I remember

Taylor telling me that I was lying about that, and that upset

me real bad, and I told him that I‟m not no child molester, and

that‟s pretty much all I remember about the whole thing.

Asked how he felt when he left the police department that day, the

[petitioner] testified,

I – I don‟t remember. I know I was in a room, and I

don‟t remember leaving that room, but I remember walking

through a door to the lobby. When I seen [sic] my wife, my

wife and I walked outside. I remember I felt like a – I guess

if you was [sic] a zombie, that‟s what I felt like. I was just –

my whole body was just numb.

He realized later that his statement had not “gone well” for him.

On cross-examination, the [petitioner] testified that his relationship

with [the victim] had been special, that she was his first granddaughter. He

remembered when [the victim] complained that he had hurt her and put a

mark on her skin near her “privates” because his wife spoke to him about it,

and she was upset. He heard his wife tell [the victim] to never let anyone

touch her private area. The [petitioner] showed the jury the scar on his

hand where the callous had been. He reiterated that [the victim] had rolled

off the recliner arm over his hand three times on that day. He did not hear

[the victim] say anything to indicate that she was in pain. When his wife

confronted him, he told her what happened. [The victim] was standing

there, and when Grandmother asked her, “Is that what happened?”, [the

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victim] said, “yes.”

The [petitioner] stated that he did not remember telling Officer

Taylor that he had touched [the victim]‟s vagina several times. He also did

not remember telling Officer Taylor that [the victim] liked to be rubbed

down there. He did not remember Officer Everett asking him about any

medications he had taken that morning. He did not remember telling

Officer Everett that he had not taken any medications other than his insulin

and blood pressure medication. He did not remember telling Officer Taylor

that [the victim] had grabbed his hand one time and put it on her breast, but

he did recall [the victim] grabbing his hand one time and putting it on her

chest with both of her hands.

Dr. David T. Stafford testified that he is a toxicologist. Asked about

the effects of Xanax, Dr. Stafford explained that it can cause a drop in

blood pressure, an increase in heart rate, and “a degree of confusion and

some short-term memory loss.” He emphasized that it does not affect

everyone in the same way. He reviewed the [petitioner]‟s videotaped

statement and opined that there were “some slight indications” that he was

under the influence of Xanax. Dr. Stafford explained: “At some times he

was hesitant about answering questions and – as if he maybe didn‟t quite

understand, but he eventually answered every question, I think, that was

asked him, and he was, at times, a little – perhaps a little confused. He was

hesitant.” He agreed that the [petitioner]‟s failure to remember the

interview could be an effect of Xanax. He also testified that, if a person

was accustomed to taking one-half milligram of Xanax and then took three

milligrams, the possibility of greater confusion would be increased.

Kenneth Wayne Maples testified that he had known the [petitioner]

all his life. He worked with one of the [petitioner]‟s sons and knew

Mother. He attended parties at Mother‟s house. The children, [the victim]

and Nicholas, were present at these parties. He described the parties as

involving alcohol and “flashing.” He stated that the parties “got wild a lot”

and were “free-spirited.” He added that he had seen “a lot of touching

between people, kissing, crotch grabbing, stuff like that.” According to

Maples, [the victim] saw some of these activities.

Maples testified that Ailey disciplined the children by speaking

“very, very loud” to them and that he was very stern, frequently sending

them to their bedrooms, where he would lock them in. [The victim] and

Nicholas “really didn‟t care for it.” He also testified that, when [the victim]

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would greet him, she would “run and jump and hug [him] . . . with her

arms, and then wrap her legs around [him] at the same time.” This made

him uncomfortable so he would pull her away and put her on the floor. He

also saw [the victim] run and jump on the [petitioner] while he was sitting

on the couch, straddling him. He described the [petitioner]‟s response to

[the victim]‟s conduct as “uncomfortable,” and he heard the [petitioner]

telling her to quit “multiple times.”

Doug Lyle, Jr., testified that he is the [petitioner]‟s son. He and his

son, who was fifteen, lived with the [petitioner]. Many children continued

to visit frequently, and the [petitioner] behaved “like any grandfather

should.” He described the [petitioner] as “the most honest man I know.”

Whitney Hardy testified that the [petitioner] is her uncle. She is the

daughter of Grandmother‟s sister. She had known the [petitioner] her

whole life and described the [petitioner] as “like a dad to me.” As she was

growing up, she spent the night at the [petitioner]‟s house “[a] lot.” He

never gave her a reason to be afraid. She has three children, two girls and a

boy, and they continue to spend time with the [petitioner]. She had seen

[the victim] with the [petitioner], and [the victim] never showed any fear or

concern about being with the [petitioner].

Hardy knew Mother and Ailey, and she lived next door to them for

about a year. She did not like Ailey and stated that he “wasn‟t very nice” to

[the victim] and Nicholas. She added, “He didn‟t really ever talk to them

except for to tell them to go away.” He also yelled at them “a lot.”

On cross-examination, Hardy stated that she had watched the video-

recording of the [petitioner]‟s interview with Officer Taylor. She also

stated that she continued to visit the [petitioner] with her children.

Jody Monroe testified that the [petitioner] was her uncle. She grew

up around the [petitioner] and spent “97 percent” of her time at his house.

She described the [petitioner] as “[m]ore like a father for me.” She was

“[v]ery comfortable” spending time alone with him, and he never touched

her improperly.

Monroe has three children, and she was very comfortable with them

all spending time with the [petitioner]. She preferred that her eldest

daughter did not spend time alone with [the victim], however, because [the

victim] “was just a little faster than [her] daughter.” She explained that [the

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victim] was “[m]ore advanced” with respect to “[s]exual stuff.” She also

stated that she had seen interactions between [the victim] and Ailey and

saw Ailey yell at the children “[m]any times.”

On cross-examination, Monroe acknowledged that she had watched

the videotaped interview of the [petitioner] and stated that some of the

things he said surprised her. She also stated that, during the interview, the

[petitioner] was “not the Doug that I‟m around all the time.” She explained

that her perceived discrepancy was based on “[t]he things that he was

saying, and the way they were coming out, I guess. He‟s usually more

straightforward, is the only way I know how to say it.”

Nicole Bajoie testified that she was employed at ChildHelp and, on

October 13, 2009, interviewed [the victim]. The interview was video-

recorded, and a portion of the recording was played for the jury. The trial

court instructed the jury that it was to consider the recording only for the

issue of the witnesses‟ credibility. After the tape was played, Bajoie

testified that she recalled [the victim] telling her that the touching did not

happen anywhere other than the [petitioner]‟s chair.

On cross-examination, Bajoie confirmed that [the victim] had told

her that the [petitioner] had touched her on the inside of her “private” with

his finger. [The victim] did not say that anyone else had touched her and

denied that anyone else had touched her.

Father testified that he is the [petitioner]‟s son and [the victim]‟s

father. He continued to have a good relationship with [the victim] after her

accusations against the [petitioner] arose. He had been told not to speak

with her about the allegations, and he respected that instruction. Mother

spoke to him about her dream and told him that, in her dream, the person of

concern was Ailey.

Father testified that the [petitioner] had a reputation for truthfulness

and stated that “[h]e‟s a very honest person.” He testified that the

[petitioner]‟s testimony should be believed. He also testified that, although

he loved [the victim] “very much,” he also believed that her reputation for

truthfulness was “[b]ad.”

Ashley Yoder testified that she is Mother‟s sister. She eventually

began dating Father, which caused a year-long rift in her relationship with

Mother, but they had since reconciled and had a “good” relationship.

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Yoder and Father had three children together, and their children spent time

with [the victim] and Nicholas. She stated that her relationship with [the

victim] was “really good” and that [the victim]‟s accusations had not

affected it.

At one point after the accusations arose, [the victim] asked to go

with Yoder to the [petitioner]‟s house. Yoder took her and told her that she

could wait in the car while Yoder picked up her children, but [the victim]

wanted to go inside. They stayed about thirty minutes. Nicholas continued

to visit at the [petitioner]‟s house, and Mother would take him there to

spend the night.

Yoder described her relationship with Ailey as “neutral” and added

that the children “don‟t seem to like him too much.”

Yoder stated that the [petitioner] had a reputation for truthfulness

and that his testimony should be believed. She also stated that [the

victim]‟s reputation for truthfulness was “bad.”

The State called Officer Lynn Everett of the KPD in rebuttal. He

assisted Officer Taylor in interviewing the [petitioner] at the police station.

At the beginning, he asked the [petitioner] if he had taken any medications.

The [petitioner] told him that he had taken insulin and his blood pressure

medication, but nothing else. Officer Everett also testified that, due to his

experience as a patrol officer, he was familiar with the characteristics of

persons under the influence of intoxicants and controlled substances. He

stated that he did not observe such characteristics in the [petitioner] that

morning.

On cross-examination, Officer Everett stated that he met the

[petitioner] at 9:00 a.m. that morning and stayed with him until 11:30 a.m.,

when Officer Taylor joined them. During the two and one-half hours

before Officer Taylor arrived, the [petitioner] denied having any improper

contact with [the victim].

State v. Douglass Leon Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL 1281857, at *1-9

(Tenn. Crim. App. Mar. 28, 2013), perm. app. denied (Tenn. Sept. 11, 2013).

The petitioner filed a pro se petition for post-conviction relief on April 10, 2014,

and, following the appointment of counsel, two amended petitions were filed. In his

petitions, the petitioner raised various allegations of ineffective assistance of counsel,

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including the ground pursued on appeal – that counsel was ineffective for not calling his

wife (and the victim‟s grandmother) to testify on his behalf at trial.

At the evidentiary hearing, the petitioner presented the testimony of his wife who

stated that she and the petitioner had been married for thirty-nine years and had lived

together the entire time. She said that the victim in this case is her granddaughter, with

whom she had a “very good” relationship. She recalled that, during the years from 2006

to 2009, the victim and her brother were at her and the petitioner‟s home often. During

that timeframe, the petitioner‟s wife usually slept on the couch in the living room, and the

petitioner slept in the master bedroom. The petitioner usually went to bed earlier than she

and awoke before her in the morning. When the victim spent the night at their house, the

victim would wake up at different times. The petitioner‟s wife elaborated, “Sometimes I

would wake up and she would still be asleep.”

The petitioner‟s wife testified that the victim never appeared to be afraid of the

petitioner. In describing how the petitioner and victim interacted, the petitioner‟s wife

said: “She would roll all over that man. She played. She jumped on him. She run down

his back. She would comb his hair.” The petitioner‟s wife said that other children also

frequently visited their home, and none appeared to be apprehensive of the petitioner.

She never observed any inappropriate behavior between the petitioner and any of the

children who came into their home. There was nothing about the petitioner‟s behavior

that would indicate he was sexually attracted to the victim.

The petitioner‟s wife testified that the petitioner spoke with investigators after the

allegations surfaced but before the petitioner was charged. She said that the

conversations occurred voluntarily, before they consulted with counsel. She recalled that,

prior to the interview at the police station, the petitioner was nervous and asked for

“something to calm his nerves.” The petitioner sometimes took “a half of a half of a

milligram” of Xanax, but she gave him a full milligram of the medication. The

petitioner‟s wife surmised that the petitioner had also probably taken his prescription

medications for blood pressure, cholesterol, and diabetes that day.

The petitioner‟s wife testified that the petitioner was coherent and in his right

mind during their drive to the police station for the interview. She was not allowed to be

present during the interview. It lasted four and a half hours, during which she waited in

the lobby. When the petitioner returned from the interview, he was “incoherent” and

“shaky,” and he wanted to get something to eat. His condition improved after eating.

On cross-examination, the petitioner‟s wife admitted that Xanax did not cause her to say

something that was not true.

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After the conclusion of the hearing, the post-conviction court entered a written

order denying relief. The court found that the petitioner‟s wife‟s testimony was “simply

corroborative” of other testimony at trial and that the petitioner did not prove that “the

decision to not call Petitioner‟s wife as a witness was no more than a tactical decision.”

The court concluded that the petitioner “failed to prove deficient performance of counsel

and prejudice to the defense, the two required elements of ineffective assistance of

counsel.”

ANALYSIS

On appeal, the petitioner argues that the post-conviction court erred in finding that

he did not receive ineffective assistance of counsel. He asserts that counsel performed

deficiently by failing to call his wife to testify on his behalf at trial and that such deficient

performance caused him prejudice. He claims that his wife would have been a more

effective witness to his behavior during the time period of the alleged incidents, as well

as his demeanor before and after his interview with the police, than the other witnesses

who testified.

The post-conviction petitioner bears the burden of proving his allegations of fact

by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an

evidentiary hearing is held in the post-conviction setting, the findings of fact made by the

court are conclusive on appeal unless the evidence preponderates against them. See

Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves

purely factual issues, the appellate court should not reweigh or reevaluate the evidence.

See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial

court‟s application of the law to the facts of the case is de novo, with no presumption of

correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective

assistance of counsel, which presents mixed questions of fact and law, is reviewed de

novo, with a presumption of correctness given only to the post-conviction court‟s

findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6

S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel‟s performance was deficient and that counsel‟s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland

standard is a two-prong test:

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First, the defendant 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 defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel‟s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel‟s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of

counsel falls within the range of reasonable professional assistance, see Strickland, 466

U.S. at 690, and may not second-guess the tactical and strategic choices made by trial

counsel unless those choices were uninformed because of inadequate preparation. See

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is

satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine

confidence in the outcome,” that “but for counsel‟s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

Id. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim”).

As noted above, the post-conviction court found that the petitioner‟s wife‟s

testimony “[a]t best . . . would have been cumulative.” The court noted that “there was

ample proof in the record from [the petitioner]‟s testimony about him taking Xanax, the

effect of it” and that “other witnesses were presented that also testified about his

relationship with other children.” The court concluded that the petitioner failed to show

that counsel‟s “tactical decision not to call [the petitioner‟s wife] as a witness was

ineffective and has also failed to show that the result of the outcome of this trial would

have been different as a result of her testimony.”

After review, we conclude that the record supports the findings of the post-

conviction court. The petitioner claims that his wife could have testified that she never

observed any inappropriate contact between the petitioner and the victim. However, the

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victim testified at trial that the inappropriate contact occurred when her grandmother was

asleep. Douglass Leon Lyle, 2013 WL 1281857, at *2. In addition, even though the

petitioner‟s wife could have testified that she never saw the victim express fear of the

petitioner, four other witnesses testified similarly to that at trial. See id. at *7-8.

The petitioner also claimed that his wife‟s testimony could have helped challenge

the credibility of his confession by testifying concerning his taking a Xanax pill before

his interview with police and that he appeared “shaky” and “incoherent” after the

interview. However, the petitioner himself testified at trial that he took three Xanax pills

prior to his interview and that he could not remember what happened in the interview

room after the officer entered. See id. at *5-6. Moreover, the petitioner‟s wife could not

testify concerning the petitioner‟s condition during the interview, and she testified at the

evidentiary hearing that she saw no difference in the petitioner‟s behavior before and

after taking the Xanax prior to his going in for the interview. In addition, counsel

retained an expert who testified at trial that Xanax “can cause a drop in blood pressure, an

increase in heart rate, and „a degree of confusion and some short-term memory loss.‟” Id.

at *6. As determined by the post-conviction court, the petitioner‟s wife‟s testimony

would have merely been cumulative to the evidence presented, and we cannot conclude

there was any reasonable probability that the result of the proceeding would have been

different had the petitioner‟s wife testified at trial.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the

post-conviction court denying the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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