Donald Wayne McCall v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 1, 2015 at Nashville

DONALD WAYNE MCCALL v. STATE OF TENNESSEE

Appeal from the Circuit Court for Crockett County

No. 4256 Clayburn Peeples, Judge

No. W2015-01171-CCA-R3-PC - Filed February 19, 2016

_____________________________

Donald Wayne McCall (“the Petitioner”) filed a Petition for Post-Conviction Relief,

alleging ineffective assistance of counsel. Following a hearing, the post-conviction court

denied relief. Discerning no error, we affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA

MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Justin P. Jones, Brownsville, Tennessee, for the appellant, Donald Wayne McCall.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Garry G. Brown, District Attorney General; and Hillary Parham, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Trial

The Petitioner was convicted of rape of a child and two counts of aggravated

sexual battery and sentenced to an effective term of eighty years at 100% service in the

Department of Correction. State v. Donald Wayne McCall, No. W2013-01501-CCA-R3-

CD, 2014 WL 2993864, at *1 (Tenn. Crim. App. June 30, 2014).1 On direct appeal, this

court affirmed the judgments of the trial court. Id.

The underlying facts were recited by this court on direct appeal as follows:

The [Petitioner] was convicted of the rape and aggravated sexual

battery of J.M., the [Petitioner]‟s niece, and the aggravated sexual battery of

K.P., the [Petitioner]‟s great niece. At the trial, J.M.‟s father, who was also

K.P.‟s grandfather, testified that on July 4, 2011, he hosted a family

gathering at his house. He said that sometime after the July 4 holiday, he

saw the [Petitioner], who was his brother, and the victims in the swimming

pool. He said that J.M. was sitting on the [Petitioner]‟s left leg and that

K.P. was sitting on the [Petitioner]‟s right leg. He told the victims to get

off the [Petitioner] and to swim or to get out of the pool. He said he left the

area and began working in the yard. He said he saw the victims and the

[Petitioner] alone in the pool once after that day.

On cross-examination, J.M.‟s father testified that the first time he

saw the [Petitioner] and the victims in the swimming pool was on Saturday

after the July 4 holiday. He said that the second time he saw them in the

pool was about one week later and that after that day, the victims no longer

wanted to swim. He said that when he learned of the allegations, he talked

to two county sheriff‟s deputies, who called Detective Curtis. He said he

took J.M. to the hospital to be examined about two or three months after he

learned of the allegations. He said that he took J.M. to a woman he

identified as Ms. Anita for counseling but that he did not like Ms. Anita‟s

talking to J.M.

J.M. testified that she was born on August 2, 1998, and that she was

twelve years old in July 2011. She identified her parents and said that K.P.

was her niece and that the [Petitioner] was her uncle, although she had

known the [Petitioner] less than one year in July 2011. She said that

although she did not recall the date on which the incidents occurred, they

occurred after July 4th.

J.M. testified that on the first day she, K.P., and the [Petitioner] were

in the swimming pool, they played and splashed the [Petitioner]. She said

1

To assist in the resolution of this proceeding, we take judicial notice of the record from the

Petitioner‟s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn.

2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).

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the [Petitioner] asked them, “You want to know what happens when you

splash me?” She said she splashed him again, and the [Petitioner] grabbed

her breast. She did not know if K.P. saw the [Petitioner] grab her breast.

She said they continued to play and splash the [Petitioner], and he grabbed

her breast “most of the time.” She thought the [Petitioner] should not have

grabbed her there and said he also touched her “crotch area” over her

bathing suit. She said the first time the [Petitioner] touched her private area

was when she held onto the side of the pool. She said they were playing a

game in which she and K.P. held onto the side of the pool, and the

[Petitioner] attempted to pull them from the side. She recalled holding onto

the side of the pool and the [Petitioner]‟s reaching and touching her private

area.

J.M. testified that the [Petitioner] also touched her private area when

she sat on his knee. She said the [Petitioner] had his hands under the water

and touched her and K.P. “down there.” She said she saw the [Petitioner]

touch K.P. She said that at one point, she put on goggles to determine if the

[Petitioner] was touching K.P. She said that before she went under the

water with the goggles, she suspected the [Petitioner] was touching K.P.

because K.P. yelled, “[I]t was an inappropriate place to touch.” She said

that the [Petitioner] left the pool to smoke a cigarette and that she and K.P.

left a few minutes later. She said that the [Petitioner] asked her if she knew

not to tell anyone and that she “nodded her head yes.” She said K.P. was a

few feet away.

J.M. testified that she and K.P. talked about what happened and

discussed whether to report the [Petitioner]‟s touching them but that they

decided not to tell anyone because they feared J.M.‟s father would not

believe them. She said that previously, the [Petitioner] told her father that

she made a “smart comment” to the [Petitioner], that she denied making the

comment, and that her father believed the [Petitioner].

J.M. testified that the following day, the [Petitioner] came to her

house to help her father with some repairs. She said that she and K.P. were

swimming when the [Petitioner] arrived, that the [Petitioner] entered the

pool after he finished helping her father, and that “it happened again.” She

said the [Petitioner] placed her on his lap and touched her private area with

his hand beneath her bathing suit. She said the [Petitioner] inserted his

finger into her vagina “a couple of times.” She said her father began

mowing the yard after he and the [Petitioner] finished the repairs. She did

not recall the [Petitioner]‟s saying anything during the incident and said

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K.P. was on the other side of the pool at the time. She said that the

[Petitioner] attempted to place her hand on his crotch a couple of times but

that she “jerked” her hand away. She said they all left the pool because it

began to rain. She did not see the [Petitioner] touch K.P. that day and said

the [Petitioner] drove K.P. home.

J.M. testified that she and K.P. discussed again whether they should

tell anyone about the [Petitioner]‟s touching them but denied that they

discussed the details of what occurred. She said that the following

Saturday, the [Petitioner] came to her house to repair her sister‟s Jeep. She

said her mother sent her outside to ask the [Petitioner] a question. She said

that she complied and that when she returned, her mother asked why she

was hateful to the [Petitioner]. She said her mother stated, “It‟s not like

he‟s ever touched you or anything like that, right?” She said she broke

down, cried, and told her mother what occurred. She said that her mother

called her father and that she and her mother calmly walked to the car, left

the house, and met K.P. and her mother at the library.

On cross-examination, J.M. testified that she wore a one-piece

swimsuit when the incidents occurred. She agreed the incidents occurred

on a Wednesday and a Thursday and denied they occurred on a Saturday.

Regarding the first incident, she agreed the [Petitioner] first touched her

when they were splashing around in the swimming pool. She did not know

how many times the [Petitioner] touched her breast and said he touched her

private area three or four times. She denied knowing why she and K.P.

stayed in the pool that day but said they first thought it was an accident and

“freaked out” when the [Petitioner] touched their crotch areas.

J.M. testified that the [Petitioner] wore his “street” clothes in the

swimming pool on the second day. She said she and K.P. stayed in the pool

because J.M.‟s father was outside mowing the lawn and thought the

[Petitioner] would stay away from them. She described how the

[Petitioner] moved her swimsuit to the side and “put his hand in.” When

asked why she did not leave, she said she was scared, did not know what to

do, and froze. She said she was “pretty sure” the [Petitioner] attempted to

put her hand on his crotch area because he pulled her hand to “his crotch

area.” She said that her hand touched his jeans and that she quickly jerked

her hand away. She denied getting into the pool with the [Petitioner] after

the incidents occurred.

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J.M. testified that she put on the goggles before she and K.P. sat on

the [Petitioner]‟s knees. She did not know of any incidents involving K.P.

after the first day. When confronted with her previous testimony, she

denied saying that she and K.P. decided not to tell anyone for any other

reason than fearing J.M.‟s parents would not believe them. She denied K.P.

said “it” did not happen to her. She denied she thought her parents would

not believe her because she had been in trouble at school.

J.M. testified that she and K.P. were in the swimming pool a couple

of hours each day. She said that K.P. wore shorts over her swimsuit on the

first day and that she wore a swimsuit with a skirt attached to it. She said

she was not wearing shorts when the [Petitioner] inserted his finger into her

vagina but did not recall exactly what she wore. She knew the [Petitioner]

touched her first because he had already touched her breast and crotch area

before K.P. yelled that the [Petitioner] was being inappropriate. She agreed

she told her mother what occurred in October 2011. She said she and K.P.

agreed never to talk about the incidents and to attempt to forget what

occurred. She said she told her mother what occurred because there was

something about the way her mother asked her. She said she liked to write

stories, including fantasies.

K.P. testified that she was born on November 24, 1999, that she was

eleven years old at the time of the incidents, and that the [Petitioner] was

her great uncle. She said that in July 2011, she had known the [Petitioner]

for about one year. She said that a few days after July 4, 2011, the

[Petitioner] touched her. She said that she, J.M., and the [Petitioner] were

in J.M.‟s swimming pool when he touched her. She said that the

[Petitioner] told her that he was tired from playing in the pool and that

although he did not leave the pool, he placed her on his lap. She said J.M.

was on the other side of the pool at the time. She said the [Petitioner]

touched her crotch area but denied he moved his hands around. She said

the [Petitioner] also grabbed her breasts after she splashed him. She denied

the [Petitioner] touched her anywhere else that day.

K.P. testified that the [Petitioner] touched her on other occasions but

denied that he attempted to make her touch him. She said the [Petitioner]

told her not to tell anyone about the touching. She said that after they got

out of the pool, the [Petitioner] took her home. She did not recall anyone

else being at the house that day.

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K.P. testified that the following day, she returned to J.M.‟s house

and swam in the pool. She said the [Petitioner] touched her breast and

crotch area like he did the previous day. She recalled J.M.‟s father mowing

the lawn when they were in the pool. She said she saw the [Petitioner]

touch J.M. when she put on goggles and went underwater, which she did to

determine what the [Petitioner] was doing to J.M. She said that she saw the

[Petitioner] touch J.M.‟s crotch area underneath J.M.‟s swimsuit. She said

the [Petitioner] told them not to tell anyone about the incident. She denied

that she and J.M. talked about the details of the incident but said they

discussed if they should tell someone. She said that J.M. wanted to tell

someone but that K.P. thought it was an accident. She said she did not

want to tell anyone. She stated that she ultimately told her mother about

the incidents when her mother asked if the [Petitioner] had ever touched

her. She said that after she told her mother what occurred, she and her

mother met J.M. and J.M.‟s mother at the library.

On cross-examination, K.P. testified that she did not recall whom the

[Petitioner] touched first, but she thought he touched her first. She said she

and J.M. were sitting on the [Petitioner]‟s knees at the same time. She said

that they were in the swimming pool for about two or three hours but that it

was “almost all day.” She clarified that it seemed as though they were in

the pool for two or three hours but that it was all day. She said the incident

on the first day occurred late in the day. She agreed she did not tell anyone

about the incidents and said nothing seemed inappropriate to her.

K.P. testified that at the end of the first day, she and J.M. became

hungry and left the swimming pool and that the [Petitioner] remained in the

pool. She said they “kind of” got out of the pool because of the

[Petitioner]‟s touching them. She said the [Petitioner] did not touch her

when he drove her home that day. She said that the [Petitioner] was living

with her family at the time of the incidents, that they played cards in his

room, and that he never touched her when they played cards.

K.P. testified that on the second day, the [Petitioner] was not in the

swimming pool when she and J.M. entered the pool. She said the

[Petitioner] was at J.M.‟s house to assist J.M.‟s father repair the

lawnmower. She agreed she invited the [Petitioner] to swim with them

because she thought his touching them the previous day was an accident.

She agreed, though, she used goggles to determine if the [Petitioner] was

touching J.M. the same way he was touching her. When presented with her

previous testimony, she stated that she did not recall saying she saw the

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[Petitioner] touch J.M. when she was wearing goggles underwater, rather

than she put on the goggles with the purpose of determining if the

[Petitioner] was touching J.M.

K.P. testified that she never got in the swimming pool with the

[Petitioner] after the incidents. She said she never told anyone what

occurred until her mother approached her about it in October 2011. She

denied talking to J.M. in October about the incidents. She agreed she

continued to think in October that the touching was accidental. She did not

recall her previous testimony in which she stated that the [Petitioner]

attempted to make her touch him. She denied her father or J.M.‟s father

ever swam with her and J.M.

J.M.‟s mother, who was K.P.‟s step-grandmother, testified that she

was home the two days in which J.M. and K.P. swam with the [Petitioner].

She said she first learned of the allegations in October 2011 when the

[Petitioner] was at her house repairing a car. She asked J.M. to go outside

and ask the [Petitioner] a question related to car parts. She said J.M. did

not want to talk to the [Petitioner], although she told J.M. to do it anyway.

She said J.M. returned, was upset, and did not want to go outside anymore.

She said she was confused and asked J.M. why she was behaving this way.

She said that she told J.M., “It‟s not like he‟s ever touched you or nothing,”

and that J.M. began to cry. She said that she asked J.M. if the [Petitioner]

had touched her and that J.M. cried. J.M. told her that the [Petitioner]

touched her between the legs when J.M.‟s mother was inside the house.

She said J.M. told her that the [Petitioner] touched K.P., too.

J.M.‟s mother testified that she called her husband, who called

K.P.‟s mother. She denied J.M. and K.P. talked from the time J.M. told her

about the allegations to K.P.‟s telling her mother about the allegations. She

said that after she and J.M. met K.P. and her mother at the library, they

went to the police station. She said that after the July 4 holiday, J.M. was

different when the [Petitioner] came to her house. She said that anytime the

[Petitioner] came to their house, J.M. put on long sleeves and pants. She

said J.M. refused to swim, although she loved swimming, and disrespected

the [Petitioner].

On cross-examination, J.M.‟s mother testified that she convinced

J.M. to go swimming with her once after the incidents occurred. She said

she equated J.M.‟s changing her clothes when the [Petitioner] was at their

house and her disrespect toward the [Petitioner] to J.M.‟s adolescent

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attitude. She agreed J.M. and K.P. talked to her after their trial testimony

but denied discussing the substance of their testimony. She said that she

recalled walking outside the house during the relevant days and that she

thought J.M., K.P., and the [Petitioner] were having a good time. Although

she could not recall whether it was the first or second day, she said J.M.

entered the house and stated she was done with swimming.

Upon this proof, the [Petitioner] was convicted of rape of a child of

J.M., aggravated sexual battery of J.M., and aggravated sexual battery of

K.P. The trial court sentenced the [Petitioner] as a Range II, multiple

offender to forty years for the child rape conviction and to twenty years for

each aggravated sexual battery conviction. The court ordered consecutive

sentences, for an effective eighty-year sentence at 100% service.

Id. at *1-5.

Post-Conviction Proceedings

The Petitioner filed a pro se petition for post-conviction relief and, after the

appointment of counsel, an amended petition was filed. Although the Petitioner raised

numerous allegations of ineffective assistance of counsel in his petitions, on appeal he

limits himself to arguing that counsel was ineffective for: (1) failing to confer adequately

with the Petitioner regarding trial preparation; (2) failing to call two witnesses requested

by the Petitioner; (3) refusing to allow the Petitioner to testify; (4) failing to provide the

Petitioner with discovery; and (5) failing to file pre-trial motions.2 The State argues that

the post-conviction court properly found that the Petitioner failed to establish either

deficient performance or prejudice.

The Petitioner testified that he was incarcerated in the Crockett County Jail before

trial. He stated his counsel would come to see him “almost every time just before docket

call before we had to come to [c]ourt” but that “mostly all he wanted to talk about was a

plea agreement.” He estimated that his attorney came to see him four to five times. The

offer tendered by the State was for him to plead guilty to two counts of sexual battery in

return for a sixteen-year sentence. He stated he received no discovery from his counsel.

Although the testimony of the Petitioner is confusing, the Petitioner appears to claim that

counsel had a copy of a protective order concerning a forensic interview conducted by the

2

The Petitioner was initially represented by the public defender, who filed a motion for

discovery. After discovering a conflict, the public defender was allowed to withdraw and trial counsel

was appointed.

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Department of Children‟s Services (DCS) but that the Petitioner was never able to view

the forensic interview file or to read a transcript of the interview.3

The Petitioner said he provided his attorney with the names of two witnesses, Josh

and Jennifer Potts, both of whom had been subpoenaed by the State. The Petitioner

wanted them called as witnesses to testify that J.M. had lied to her father in the past “to

get out of trouble at school[.]” We note from the direct appeal record that J.M.‟s father

testified at the trial and that he was not asked about the allegations that J.M. had lied to

him to get out of trouble. Petitioner also requested trial counsel to obtain the school

records of J.M. Although his trial counsel was able to get a copy of the school records

shortly before trial, he was precluded from introducing them by the trial court. The

Petitioner claimed he told trial counsel about the records a month before trial but that trial

counsel did not get them until a few days before trial. The Petitioner claimed if trial

counsel had gotten the records earlier that he may have been able to have them admitted

as evidence. The Petitioner testified that his attorney failed to file a motion for discovery

and therefore failed to get exculpatory evidence from the State that would have shown the

discrepancies in the victims‟ allegations.

The Petitioner said he and his attorney did not discuss the State‟s evidence or trial

strategies. He claimed he told trial counsel “from day one” that he wanted to testify and

that after the State completed its proof, that he again told trial counsel during the court

recess that he wanted to testify. The Petitioner stated that when court reconvened, trial

counsel and the assistant district attorneys approached the bench and talked to the judge

and that when trial counsel came back to the table, he asked: “Well, am I going to

testify[?]” The Petitioner said “[trial counsel] looked at me and he said „You‟re not.‟”

He said he wanted to testify to show a motive for the victims making up the allegations.

He said he had previously seen pictures posted on J.M.‟s Facebook and that the day

before the allegations were made, he stopped by J.M.‟s father‟s house and told J.M. that

he had “found another one of them pictures on your Facebook” and “I‟m gonna [sic] tell

your dad tomorrow evening.” He said J.M. and K.P. went around to the back of the

house, and the next morning the allegations were made.

Trial counsel testified that he received information from the State concerning what

the testimony of Mr. and Ms. Potts was expected to be if they were called to testify. He

stated that the testimony that the Petitioner wanted to illicit from Mr. and Ms. Potts was

hearsay. Trial counsel said he was provided “open file access” to the State‟s file and the

3

The transcript of the Petitioner‟s testimony states, “I received [from trial counsel] a [sic] Order

of Protection against forensic interview telling me that I could not have a copy of it, but I was supposed to

be allowed to review it, which I never looked at.”

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file of the State‟s investigator. He said he met with the Petitioner in an office at the jail

and showed him everything he had obtained through discovery. He said the Petitioner

read the reports and that he discussed the protective order with the Petitioner. He said

they discussed the strengths and weaknesses of the case. He explained that “the

similarity in the stories these two girls were telling and how typically an honest off-the-

cuff story doesn‟t tend to be so exact between two people.” Trial counsel stated that his

strategy was to point out how the two stories were too identical and argue that, coupled

with the lack of physical evidence, the jury should find that they were fabricated.

Trial counsel obtained records from DCS and, after the trial court performed an in

camera review, he reviewed the records. He sought to introduce the DCS records as an

exhibit, but the trial court refused to allow admission. The State had filed a notice of

intent to impeach the Petitioner with his prior convictions, and trial counsel did not want

the Petitioner to testify because that would open the door for the State to introduce his

significant criminal history.4 Trial counsel testified that, although he recommended that

the Petitioner not testify, he advised the Petitioner that it was the Petitioner‟s decision

whether to testify, and the Petitioner said “well, you‟re the attorney.”5 When the State

ended its proof, trial counsel announced that the Petitioner did not intend call any

witnesses, and the Petitioner “huffed.” Trial counsel said he knew of no exculpatory

evidence withheld by the State. Trial counsel stated that, based on his investigation, the

testimony of Mr. and Ms. Potts would not have been favorable to the Petitioner.

Following argument of counsel, the post-conviction court orally ruled on the

petition. The court found that trial counsel‟s defense strategy was “by far the very best

strategy that could have been employed in this particular case”; that trial counsel had

made “all pre-trial motion[s] that should have been made”; that “there was ample

communication between [trial counsel] and [the Petitioner]”; that trial counsel and the

Petitioner met to discuss strategy; and that trial counsel had preserved all possible issues

for appeal. Additionally, the post-conviction court noted that the Petitioner had not

offered any proof that the testimony of Mr. and Ms. Potts‟s would have been material or

admissible. The post-conviction court also stated that trial counsel‟s recollection of his

advice about the Petitioner‟s right to testify was “not only completely believable, but

consistent with what happened at the trial, and also appears to have been excellent advice,

which [the Petitioner] at the time took.” Further, the post-conviction court found that

trial counsel never told the Petitioner he could not testify. In sum, the post-conviction

4

The notice filed by the State is an exhibit and is in the technical record of the direct appeal. The

notice lists six class E felony convictions for various offenses and one class A felony conviction for

second degree murder. One of the E felony convictions was for sexual battery, and it was determined

before trial that that conviction could not be used by the State to impeach the Petitioner.

5

The direct appeal record does not contain a transcript of any Momon hearing.

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court held that “[trial counsel‟s] actions not only met but exceeded the requirements of

effective representation, not only in this area by in any area of the country.”

The post-conviction court then denied relief on the petition. This timely appeal

followed.

Analysis

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial

court‟s findings of fact under a de novo standard with a presumption that those findings

are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.

R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court‟s

conclusions of law and application of the law to factual findings are reviewed de novo

with no presumption of correctness. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.

2015).

When reviewing the trial court‟s findings of fact, this court does not reweigh the

evidence or “substitute [its] own inferences for those drawn by the trial court.” Fields, 40

S.W.3d at 456. Additionally, “questions concerning the credibility of the witnesses, the

weight and value to be given their testimony, and the factual issues raised by the evidence

are to be resolved by the [post-conviction court].” Id. (citing Henley, 960 S.W.2d at

579); see also Kendrick, 454 S.W.3d at 457.

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove two factors: (1) that counsel‟s performance was deficient; and (2)

that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that

the same standard for ineffective assistance of counsel applies in both federal and

Tennessee cases). Both factors must be proven in order for the court to grant post-

conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,

938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not

satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,

316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).

Additionally, review of counsel‟s performance “requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‟s

challenged conduct, and to evaluate the conduct from counsel‟s perspective at the time.”

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Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-

guess a reasonable trial strategy, and we will not grant relief based on a sound, yet

ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790

(Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel‟s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, the petitioner “must show that there is a reasonable probability

that, but for counsel‟s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

Failure to Adequately Communicate and Prepare for Trial

On appeal, the Petitioner contends that trial counsel was ineffective because he

failed to adequately communicate with the Petitioner and prepare for trial. The Petitioner

testified that trial counsel met with him four or five times while he was incarcerated.

Trial counsel used the State‟s offer for open file discovery to find out what evidence the

State had against the Petitioner, obtained school records and the DCS records, and

formulated a trial strategy. Trial counsel testified that he discussed the State‟s evidence

and explained the trial strategy to the Petitioner on several occasions. The post-

conviction court found there was ample communication between counsel and the

Petitioner. The post-conviction court implicitly accredited trial counsel‟s testimony,

stating that it found trial counsel‟s “testimony was believable and consistent with what

happened at trial.” The Petitioner has failed to prove that trial counsel was deficient in

either communicating with him or in his trial preparation.

Failure to Call Two Witnesses Requested by the Petitioner

The Petitioner requested that trial counsel call Mr. and Mrs. Potts to impeach the

credibility of the victims. Trial counsel determined that the testimony the Petitioner

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wanted to illicit from the witnesses would have been inadmissible as hearsay and that

their testimony otherwise would have been unfavorable to the Petitioner. However,

neither Mr. Potts nor Ms. Potts testified at the post-conviction hearing. In cases where a

petitioner contends that trial counsel failed to present a witness in support of the

petitioner‟s defense, the petitioner must present such witness at the post-conviction

hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Neither a trial

nor an appellate judge can speculate as to whether that witness‟s testimony would have

been favorable to the defense. Id. Therefore, the petitioner must “produce a material

witness who . . . would have testified favorably in support of his defense if called [at

trial]. Otherwise, the petitioner fails to establish the prejudice requirement mandated by

Strickland v. Washington.” Id. at 758. Because neither of the witnesses testified at the

post-conviction hearing, the Petitioner has failed to show that he was prejudiced by the

failure of trial counsel to call the two witnesses. See id. at 757-58. The Petitioner is not

entitled to relief on this ground.

Refusal to Allow the Petitioner to Testify

The Petitioner claims trial counsel refused to allow him to testify. Trial counsel

testified that the State would be allowed to present evidence of the Petitioner‟s extensive

criminal record, and he believed such evidence would undermine the Petitioner‟s

credibility and jeopardize the defense strategy. Trial counsel therefore recommended that

the Petitioner not testify but still advised the Petitioner that the decision rested with the

Petitioner. Trial counsel said the Petitioner decided not to testify. The post-conviction

court found the testimony of trial counsel credible and noted that trial counsel gave

“excellent advice.” We are bound by the post-conviction court‟s findings of fact and

judgments of credibility. Fields, 40 S.W.3d at 456. Therefore, we conclude that the

Petitioner has failed to show that trial counsel refused to allow the Petitioner to testify.

Failure to Conduct a Momon Hearing

Although not raised by the Petitioner in either this appeal or in the direct appeal,

we note that there was no Momon hearing conducted on the record during the trial of this

case. See Momon v. State, 18 S.W.3d 152 (Tenn.1999). Because defendants have a

constitutional right to testify, the right must be personally waived by the defendant. Id. at

163. Therefore, pursuant to Momon, trial counsel should have requested that the trial

court allow him to question the Petitioner in order to ascertain whether the Petitioner

knowingly, voluntarily, and intelligently waived his right to testify. See id. at 162-63.

Furthermore, a trial court bears the responsibility to “require” that a hearing be conducted

pursuant to the procedure outlined in Moman. Id. at 162. This court has previously

determined that “the failure to conduct a hearing pursuant to Momon to determine

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whether the Defendant did personally waive his right to testify was plain error.” State v.

Posey, 99 S.W.3d 141, 148 (Tenn. Crim. App 2002).

The Petitioner had the opportunity, personally or through counsel, to present the

failure to conduct a Momon hearing at trial, on direct appeal, and in this proceeding but

failed to do so. The Petitioner has waived a free-standing Momon claim in the post-

conviction proceedings by failing to raise the issue at trial or on direct appeal. Tenn.

Code Ann. § 40-30-106(g); Tenn. Sup. Ct. R. 28, § 2(D); Miqwon Deon Leach v. State,

No. W2004-01702-CCA-R3-PC, 2005 WL 1651654, at *7 (Tenn. Crim. App. July 14,

2005), perm. app. denied (Tenn. Dec. 5, 2005). However, we will address the issue of

whether trial counsel rendered ineffective assistance by failing to conduct a Momon

hearing. See Miqwon Deon Leach, 2005 WL 1651654, at *7. “When a petitioner argues

that his trial counsel‟s assistance was ineffective based on Momon violations, he or she

must establish that his counsel‟s performance fell below „the range of competence

demanded of attorneys in criminal cases,‟ and that counsel‟s ineffective performance

actually adversely impacted his defense.” Id. at *8 (citing Strickland, 466 U.S. at 693;

Baxter 523 S.W.2d at 936); see also Mario Deangalo Thomas v. State, No. W2004-

01704-CCA-R3-PC, 2005 WL 1669898, at * 3-4 (Tenn. Crim. App. July 18, 2005),

perm. app. denied (Tenn. Dec. 5, 2005).

Trial counsel‟s failure to follow the well-established procedure for conducting a

Momon hearing was deficient performance. See Miqwon Deon Leach, 2005 WL

1651654, at *8 (concluding “that trial counsel‟s failure to follow what was by the time of

Petitioner‟s trial a well-established procedure was deficient performance”). However, the

Petitioner has failed to show that he was prejudiced by trial counsel‟s failure to conduct a

Momon hearing. The Petitioner stated at the post-conviction hearing that he wanted to

testify about the victims‟ motives to fabricate the allegations. The trial strategy of the

defense had been to attempt to show the victims‟ statements were so identical that they

were contrived. From this standpoint, the Petitioner‟s testimony could have possibly

bolstered the defense. However, if the Petitioner testified, the State would have presented

proof of six prior felony convictions, including two petty larcenies, an escape from jail,

and second degree murder. The risk of substantial damage to the Petitioner‟s credibility

was great. Additionally, trial counsel testified at the post-conviction hearing that he

discussed with the Petitioner the possible benefits and dangers of the Petitioner testifying.

After trial counsel‟s motion to exclude some of the Petitioner‟s prior convictions was

denied, trial counsel met with the Petitioner and explained that the State could “use the

fact that you‟ve been in jail essentially all of your adult life for one crime or another,

including murder, to attack your credibility.” Trial counsel advised the Petitioner that in

his opinion “you run a stronger risk of doing more harm than good if you testify.” After

explaining that the Petitioner had to decide whether to testify, the Petitioner stated “[w]ell

you‟re the attorney,” thereby choosing not to testify. Therefore, this case, like Mario

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Deangelo Thomas, is distinguishable from Posey. See Mario Deangelo Thomas, 2005

WL 1669898, at *3. In Posey, there was no proof in the record that the defendant

knowingly and voluntarily waived his right to testify. Id. Conversely, in Mario

Deangelo Thomas this court noted that Mr. Thomas‟s trial counsel testified “that the

defendant made an informed decision not to testify[,]” and the post-conviction court

credited that testimony. Id. This court stated “[t]hus, the failure to conduct a Momon

hearing in this case is mere procedural error that does not „in and of itself support a claim

for deprivation of the constitutional right to testify.‟” Id. As stated above, in this case,

trial counsel advised the Petitioner that he could do more harm than good if he chose to

testify and the Petitioner responded, “Well, you‟re the attorney.” Therefore, we conclude

that the Petitioner has failed to show by clear and convincing evidence that trial counsel‟s

failure to conduct a Momon hearing adversely impacted his defense or deprived him of

the constitutional right to testify. See Miqwon Deon Leach, 2005 WL 1651654, at *8

(citing Strickland, 466 U.S. at 693). The Petitioner is not entitled to relief on this issue.

Failure to Provide the Petitioner with Discovery

Trial counsel testified that he had open file discovery with the State and that he

took documents to the Petitioner to read and discuss. Trial counsel testified that he

obtained school records and DCS records concerning the victims but that he was denied

being allowed to admit them by the trial court. The post-conviction court credited the

testimony of trial counsel. Additionally, the post-conviction court found that “there was

ample communication between [trial counsel] and [the Petitioner.]” The Petitioner has

failed to prove trial counsel‟s representation was deficient for failing to provide

discovery. He is not entitled to relief on this issue.

Failure to File Pretrial Motions

The Petitioner claims that trial counsel failed to file a pretrial motion for

discovery and by doing so failed to discover exculpatory evidence. Trial counsel testified

he was provided open file discovery and that he was unaware of any exculpatory

evidence. Further, the Petitioner did not present any exculpatory evidence at the post-

conviction hearing. See Black, 794 S.W.2d at 757-58. The Petitioner failed to show that

trial counsel‟s pre-trial representation was deficient or that he was prejudiced, and he is

entitled to no relief on this issue.

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Conclusion

For the aforementioned reasons, we affirm the judgment of the post-conviction

court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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