Jay Earl Haynes v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 9, 2015

JAY EARL HAYNES v. STATE OF TENNESSEE

Appeal from the Circuit Court for Dyer County

No. 09-CR-288 Lee Moore, Judge

No. W2015-00919-CCA-R3-PC - Filed February 26, 2016

The petitioner, Jay Earl Haynes, appeals the denial of his petition for post-conviction

relief from his two rape convictions, arguing he received ineffective assistance of

counsel. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,

P.J., and ROBERT W. WEDEMEYER, J., joined.

Hal J. Boyd, Tiptonville, Tennessee, for the appellant, Jay Earl Haynes.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; C. Phillip Bivens, District Attorney General; and Lance Webb,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted of two counts of rape, as a result of his having

intercourse with two mentally disabled individuals. He was sentenced to twenty years on

each count, to be served consecutively, for an effective term of forty years. This court

affirmed on direct appeal, and the Tennessee Supreme Court denied the petitioner’s

application for permission to appeal.

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

follows:

In June 2009, the male victims, who are twins, were nineteen years

old. The victims lived with their mother and required constant adult

supervision because they had the mental development of a child. The

evening of June 26, their grandmother and her boyfriend, [the petitioner],

picked the victims up to spend the night. [The petitioner] had been dating

their grandmother for about five months and living with her for about two

weeks. The grandmother and [the petitioner] had taken the victims out

dancing a few times before June 26.

The victims’ grandmother was the supervisor of the kitchen at the

Dyer County Jail. Very early in the morning of June 27, she received a call

that she needed to be at work at 4:00 a.m. She tried to call the victims’

mother but was unable to reach her. She left for work while [the petitioner]

and the victims were sleeping.

In the morning, [the petitioner] asked one of the victims to come into

the bedroom. [The petitioner] told the victim to pull his pants down. After

using lotion to lubricate the victim’s anus, he penetrated the victim and

anally raped him. After [the petitioner] was finished, he wiped the victim

with a towel. The victim said he saw blood on the towel. The victim’s

brother was not present during the rape. [The petitioner] next raped the

other victim in the living room on the mattress on which the victims slept

the night before. [The petitioner] also raped each victim a second time, one

in the bedroom and one in the living room. [The petitioner] told the victims

not to tell what had happened. Their grandmother came home and took

them to their mother’s house around 6:00 p.m.

When they arrived home, their mother stated that she could tell

something was wrong because they were both withdrawn. They told her

what had occurred while at their grandmother’s house. As a result, their

mother called their father and the police. The victims were taken to the

hospital for an examination where nurses examined them and found that

both victims showed signs of anal redness and slight injury to the anus.

The victims’ father decided to confront [the petitioner]. The

victims’ father drove to his mother’s house and sat in his car to watch the

house. He saw [the petitioner] come out of the house to the “burn barrel”

and put some trash in the barrel. [The petitioner] “lit the barrel.” [The

petitioner] began to bring what appeared to be sheets to the barrel as well.

Before [the petitioner] could put the sheets in the barrel, the victims’ father

ran over and knocked the barrel over to put out the fire. The victims’ father

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took the sheets to the police. [The petitioner] was apprehended a few days

later.

State v. Jay Earl Haynes, No. W2012-01917-CCA-R3-CD, 2013 WL 3807992, at *1

(Tenn. Crim. App. July 17, 2013), perm. app. denied (Tenn. Nov. 13, 2013).

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

appointment of counsel, an amended petition was filed. In his petitions, he asserted, as in

this appeal, that he received ineffective assistance of counsel because counsel failed to

investigate and challenge the constitutionality of Tennessee Code Annotated section 39-

13-503(a)(3) as applied in his case. He asserted that his I.Q. score was within eight

points of the victims’ full scale I.Q. score, meaning that all of the parties were mildly

mentally retarded and calling into question the “guilt or culpability” of the victims. He

further asserts that, because he was also mentally defective, the rape statute, Tennessee

Code Annotated section 39-13-503(a)(3), essentially criminalized “consensual sex

between mentally handicapped adult persons.” He contends that such criminalization

was arguably unconstitutional according to Lawrence v. Texas, 539 U.S. 558 (2003), a

case in which the United States Supreme Court upheld the right of same-sex individuals

to participate in sexual activity.

The post-conviction court conducted an evidentiary hearing, at which the

petitioner’s trial counsel testified that he had practiced criminal law exclusively for

twenty years. He recalled that the petitioner was charged with two counts of rape, and

that the allegation was that the two victims were mentally defective such that they could

not consent to any type of sexual activity. Counsel said that he was familiar with

Lawrence v. Texas and agreed that the case dealt with sexual interactions between

individuals when consent was not at issue. However, he further agreed that the problem

with the petitioner’s case was that the issue of consent was at least implicated and noted

that he argued such. He elaborated that consent was not mentioned in the subsection of

the rape statute under which the petitioner was charged, but counsel “couldn’t figure out

a way . . . that it wasn’t an issue also.”

Counsel testified that he addressed whether the rape statute was facially

unconstitutional, not as applied to the petitioner. He felt that he dealt with the statute’s

application to the petitioner “in terms of . . . the sufficiency of the evidence.” He “tried to

lay out the idea that . . . [the defendant is] the same as [the victims].” Counsel testified

that he thought whether effective consent is given and whether consent may be given are

closely related questions.

Counsel testified that he was very familiar with the facts and issues of the case and

had looked at the statute to see the essential elements the State would need to prove.

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Counsel recalled that a psychologist concluded that the petitioner had the executive

function to make decisions that the victims lacked. He also recalled that his investigation

revealed that the petitioner had held a job and had sexual relationships with other people.

There was evidence at trial that the victims could not make adult decisions and had a low

mental age. Counsel believed that the reason the petitioner was prosecuted and not also

considered a victim was because of the differences in executive functioning and the fact

that the petitioner had two prior felony sex convictions.

Counsel agreed that the primary issue in the post-conviction proceeding was

whether he should have challenged the constitutionality of Tennessee Code Annotated

section 39-13-503(a)(3) based on Lawrence v. Texas, the United States Supreme Court

case that upheld the right of same-sex individuals to participate in private sexual activity.

He acknowledged filing an appellate brief on the petitioner’s behalf in which he

essentially made the argument that Lawrence requires that a consent element be read into

Tennessee Code Annotated section 39-13-503(a)(3). He elaborated that his argument

was that:

Despite the fact that the statute in question Tennessee Code

Annotated 39-13-503(a)(3) mandates no element of consent . . . the real

issue in this cause is whether the alleged victims had the mental capacity to

consent to sex and if not whether the [petitioner] knew or had reason to

know whether their mental abilities rendered them unable to consent to sex.

Logically, this has to be the question because a literal reading of the statute

charged alleges no crime but rather . . . simply prescribes individuals of

lesser intelligence from engaging in sex. It is axiomatic that all people have

a constitutional right to have sex and/or procreate if they so choose.

Counsel said that he made the same argument during oral argument. Counsel stated that

he did not believe that Lawrence rendered Tennessee Code Annotated section 39-13-

503(a)(3) unconstitutional because the statute protected people who “can’t protect

themselves.”

Counsel acknowledged that the petitioner’s argument in the post-conviction

proceeding is that “because he is also . . . mildly mentally retarded; that he has some

fundamental right to have sex basically with whoever he wants to.” However, counsel

agreed that Lawrence did not say there was a right to have sex anywhere, anytime, and

with any person. For example, Lawrence did not apply to minors or those involved in

situations where consent might not easily be refused. Counsel testified that his strategy

was to prove that even if the victims were mentally disabled, the State failed to prove that

the petitioner knew that they were due to his own mental disability. He summarized that

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his two issues at trial were whether the victims were competent to consent and whether

the petitioner “had the ability to tell that.”

The post-conviction court made oral findings, followed by a written order, in

denying the petition for relief. In its oral findings, the court determined that counsel

“raised every defense that could be raised in this case and . . . did as good a job as could

be done in defending” the petitioner. The court found that the issues of “statutory

constitutionality” were raised and dealt with on direct appeal under a sufficiency of the

evidence argument. The other issues raised by the petitioner were matters of trial

strategy or were issues that were or should have been argued on direct appeal. The court

concluded that the petitioner had failed to show ineffective assistance of counsel and that,

even if he had, he failed to show prejudice.

In its written order, the court found that the issue of the constitutionality of

Tennessee Code Annotated section 39-13-503(a)(3) had been previously determined as

“trial counsel did arguably raise it on appeal in the context of a sufficiency of the

evidence argument.” The court continued that, even if not previously determined, the

petitioner failed to prove that counsel’s performance fell below the range of competence

of attorneys in criminal cases or that there is a reasonable probability that the result of the

trial would have been different but for the alleged deficiencies.

ANALYSIS

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

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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:

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”).

On appeal, the petitioner argues that he received ineffective assistance of counsel

because counsel failed to research, raise, and receive a ruling on constitutional issues

surrounding Tennessee Code Annotated section 39-13-503(a)(3) and preserve the

constitutional issues for direct appeal. He asserts that the statute is unconstitutionally

vague and overbroad.

Tennessee Code Annotated section 39-13-503(a)(3) provides: “Rape is unlawful

sexual penetration of a victim by the defendant . . . [when] [t]he defendant knows or has

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reason to know that the victim is mentally defective, mentally incapacitated or physically

helpless[.]” The petitioner asserts that the vagueness of the statute as applied to him is

evidenced by counsel’s inability “to untangle the differences between having mental

defect (incapable of appraising the nature of the person’s conduct) and the ability to give

effective consent.” He asserts that the statute is overbroad in that it could be “read and

applied so as to prohibit two mentally defective individuals from engaging in private

sexual conduct.” However, the petitioner acknowledges that “constitutional matters are

generally waived in [p]ost-[c]onviction proceedings” and also that the “constitutional

inquires/arguments set forth . . . [in his brief] are matters which were admittedly

overlooked . . . . It is in this spirit and in the duty to zealously represent the client the

arguments are brought forth here for the court’s consideration.”

Upon review, we determine that the petitioner has waived his argument that the

statute is vague and overbroad because he failed to raise it in his petition for post-

conviction relief or amended petition. The petitioner briefly poked at the issue in the

post-conviction evidentiary hearing, and the court sustained the State’s objection based

on the issue having not been raised in the post-conviction petition. The petitioner did not

protest or attempt to argue that he had raised it. “As a general rule, this court will not

address post-conviction issues that were not raised in the petition or addressed in the trial

court.” Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996). Moreover, this

court will refrain from addressing constitutional issues unless required. State v.

Thompson, 151 S.W.3d 434, 442 (Tenn. 2004); Wilson v. Wilson, 984 S.W.2d 898, 902

(Tenn. 1998).

We also determine that counsel was not ineffective for failing to research, raise,

and receive a ruling on constitutional issues surrounding Tennessee Code Annotated

section 39-13-503(a)(3) and preserve the constitutional issues for direct appeal.

Tennessee Code Annotated section 39-13-503(a)(3) criminalizes the unlawful sexual

penetration of those whom a defendant knows to be mentally defective, mentally

incapacitated or physically helpless. If the petitioner’s argument is that he was too

mentally impaired to violate the statute, then that is an issue of the petitioner’s capacity to

be resolved on the facts with expert testimony. If the petitioner’s argument is that he did

not know the victims were mentally incapacitated, then that is a factual issue for the

jury’s determination and not a constitutional claim. In fact, counsel raised the issue on

direct appeal that the petitioner lacked knowledge of the victims’ mental impairment. Jay

Earl Haynes, 2013 WL 3807992, at *2-4. Finally, counsel actually made a constitutional

claim on direct appeal regarding Tennessee Code Annotated section 39-13-503(a)(3) by

arguing that it violated a constitutionally protected action of intellectually disabled

persons to engage in sexual activities under Lawrence v. Texas unless a consent

requirement was read into the statute. Accordingly, we agree with the post-conviction

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court that the petitioner failed to prove that counsel performed deficiently or that any

deficiency caused him prejudice.

CONCLUSION

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

petition.

_________________________________

ALAN E. GLENN, JUDGE

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