Eddie Medlock v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2016

EDDIE MEDLOCK v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-27449 Glenn Ivy Wright, Judge

___________________________________

No. W2015-02130-CCA-R3-PC - Filed October 21, 2016

___________________________________

A jury convicted the Petitioner, Eddie Medlock, of two counts of aggravated rape and

two counts of especially aggravated kidnapping perpetrated during the brutal assault of

his ex-girlfriend. On direct appeal, this court vacated one count of especially aggravated

kidnapping but affirmed the other convictions and the Petitioner‘s sentence of one

hundred and twenty years. The Petitioner filed a timely petition for post-conviction relief

on June 27, 2003, but the post-conviction court did not enter a final disposition until

October 1, 2015, when it denied the petition. On appeal, the Petitioner alleges that the

post-conviction court erred in denying him funding for expert analysis during the post-

conviction proceeding and that he received the ineffective assistance of counsel at trial

and on appeal. After a thorough review of the record, we affirm the denial of post-

conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

James E. Thomas, Memphis, Tennessee, for the appellant, Eddie Medlock.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Ann Schiller,

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

Trial Proceedings

The proof at the Petitioner‘s trial showed that the Petitioner assaulted his ex-

girlfriend (the victim), and then raped her with a heated coat hanger. The Petitioner

raped the victim a second time and then left her tied up and locked inside a residence they

had recently shared. This court summarized the evidence in the Petitioner‘s direct

appeal:

The victim, [S.R.],1 and the [Petitioner] ended their romantic

relationship in July of 1999. On July 31, 1999, [S.R.], believing the

[Petitioner] would be at work, returned to the duplex where she and the

[Petitioner] lived to retrieve the rest of her personal belongings. As [S.R.]

was packing her clothing, the [Petitioner] entered the residence. Once

inside the bedroom, the [Petitioner], who smelled of alcohol, accused [S.R.]

of ―being with someone else,‖ and called her a ―whore‖ and a ―bitch.‖ He

then began hitting [S.R.] with his fists and kicking her, while she pleaded

and screamed for him to stop. He also whipped her with an extension cord

which he pulled from the television set. During the beating, her clothes

were ―snatched‖ off.

Thereafter, [S.R.] was dragged by her hair from the bedroom to the

kitchen. The [Petitioner] tied her hands behind her back, and ―he got two

chairs from the kitchen table and he had opened [her] legs and tied [her]

legs to each chair.‖ Her legs were tied with the extension cord earlier used

to whip her, and her hands were tied with a rope. While she was tied up, he

also beat her with a board, and held his ―work‖ boots on her throat. [S.R.]

testified that,

He was steady drinking. He had lit a cigarette, and then he

went in the other room and got a clothes hanger out of the

closet, and he came back in the kitchen, and he turned the

stove on, and started untwisting the clothes hanger, and he

made it straight, and then he started twisting it up, and he

turned the stove on and struck the clothes hanger on the stove

and let it get hot, and then he had got some rubbing alcohol,

and then he was steady drinking and smoking cigarettes, and

then he started saying, ―Bitch, I‘m going to stick this so

nobody won‘t want you,‖ and he took the clothes hanger from

1

It is the policy of this court to refer to the victims of sexual assault only by their initials.

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the stove, and he stuck it between my legs while he was

pouring alcohol [into my vagina].

The [Petitioner] held a towel on [S.R.‘s] face to quiet her screams

while he raped her with the heated coat hanger. After the coat hanger was

removed from her vagina, the [Petitioner] said, ―[b]itch, that‘s what you

get. You made me do these things to you.‖

[S.R.] was then untied from the chairs, dragged into the bedroom

again by her hair, and thrown onto the bed. At trial, she testified,

Q. And what happened once he put you up on the bed-

or threw you up on the bed?

A. He forced me to have – forced me to have sex with

him.

Q. Your hands were still tied up?

A. Yes.

Q. How did he force you to have sex with him? What

did he do?

A. He opened my legs up....

A. He pulled his pants down, and he stuck his thing

inside me. He said, ―Bitch, open your legs,‖ and I started

screaming. I was telling him to stop....

Q. You were hollering. Did he make any threats

towards you this time?

A. He was steady saying, ―Bitch, shut up or I‘ll kill

you.‖

Before leaving the duplex, the [Petitioner] noticed blood on the

sheets. He removed [S.R.] from the bed and proceeded to wash the sheets.

Once the [Petitioner] finished washing the sheets, he locked the door and

left the residence. [S.R.] remained tied up for ―thirty/forty-five minutes to

an hour.‖ After she untied herself, she crawled to the living room window.

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She was unable to exit the home because the [Petitioner] had previously

taken her keys, and the windows were barred. [S.R.] waited for about thirty

minutes at the window until she saw her neighbor, Eva Tillman, who

phoned 911. Upon arrival at the home, the police were unable to open the

door, so the firemen were called to break down the door.

[S.R.] was taken to the hospital where she received extensive

medical treatment. The nurse, Sally DiScenza, testified that upon [S.R.‘s]

arrival at the hospital, her vagina was very red, and had ―a lot of drainage as

you get … when skin is burned, and you have the drainage from the cell

destruction and when … bacteria is introduced.‖ Because [S.R.] was in

extreme pain, a speculum exam was performed very quickly.

Consequently, no forensic evidence was obtained. Ms. Di[S]cenza also

observed [S.R.‘s] many other bruises and wounds. [S.R.] suffered

permanent scarring from the incident.

State v. Eddie Medlock, No. W2000-03009-CCA-R3-CD, 2002 WL 1549707, at *1-2

(Tenn. Crim. App. Jan. 16, 2002).

A copy of the transcript of the trial, which was made an exhibit at the post-

conviction hearing, shows that the forensic nurse testified that she waited for the arrival

of a surgeon to perform the internal examination of the victim and that she gave the

surgeon ―some Q-tips to quickly swab‖ but that ―[i]t was not a good collection‖ because

the victim couldn‘t tolerate the pain. The witness stated that a ―kit‖ was collected but

that to her knowledge, no sperm was recovered. She stated, ―To be honest, I don‘t have

the lab report.‖ She clarified that she did not expect that the swabs would yield evidence

because of the victim‘s injuries and the circumstances of collection.

In cross-examining the victim, trial counsel began to ask about the victim‘s past

relationship with the Petitioner and a ―fight‖ she had with her sister prior to the crimes.

The prosecutor objected, and the trial court warned trial counsel that he was getting close

to ―opening the door‖ to testimony about prior assaults the Petitioner had committed

against the victim. Trial counsel then began asking the victim whether or not another

man, Albert Triple, had committed an aggravated assault against her, and whether the

offenses at issue had not also been committed by Mr. Triple. Trial counsel also asked the

victim whether or not Mr. Triple had burned her, and she responded that the Petitioner

had done it. The trial court then allowed the prosecution to introduce proof that the

Petitioner had burned the victim with cigarettes on one prior occasion and with a

fireplace lighter on another occasion. The victim also testified that Mr. Triple was a

stranger who had hit her in the head with a pistol.

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On direct appeal, this court, concluding that the kidnapping offense was one

continuous course of conduct, vacated one count of especially aggravated kidnapping.

Id. at *3. The convictions and sentences were otherwise affirmed. Id. at *9. The

mandate was issued on July 19, 2002.

Post-Conviction Proceedings

On June 27, 2003, the Petitioner filed a timely petition for post-conviction relief,

alleging primarily ineffective assistance of counsel. The Petitioner moved the post-

conviction court to allow him to examine any deoxyribonucleic acid (―DNA‖) evidence

or lab results, based on the testimony of the forensic nurse. The Petitioner was appointed

counsel, and counsel filed an amended petition. In April 2005, the Petitioner‘s counsel

moved the court for funding to obtain DNA testing at an independent laboratory. The

motion alleged that evidence collected from the victim had been tested by the Tennessee

Bureau of Investigation (―TBI‖) in 2005, that the results were inconclusive, and that an

independent laboratory might be able to find exonerating evidence. In sum, the Petitioner

sought testing which could detect the perpetrator‘s DNA profile from the evidence.

Counsel argued that the denial of such funding to non-capital defendants was a due

process and equal protection violation. The post-conviction court denied the motion for

funding but allowed the Petitioner to pursue an interlocutory appeal. This court entered

an order on October 12, 2005, denying the Petitioner‘s interlocutory appeal and noting

that the issue could be raised after final judgment was entered in the post-conviction

matter. On February 6, 2006, the Tennessee Supreme Court denied the application for

permission to appeal.

From the record before us, it appears that no further action was taken in this matter

until August 28, 2012, when the Petitioner again amended the petition for post-conviction

relief. There is nothing in the record to explain the reason for this six-year period of

inactivity.2 The record contains two motions which the Petitioner attempted to file pro se

in 2014. The matter was finally heard beginning on August 5, 2015, approximately

twelve years after the petition was filed.

We note that the judgments from which the Petitioner appeals do not appear in the

record. While the original judgment sheets were part of the original appellate record, a

copy of which was introduced as an exhibit at the post-conviction hearing, this court

ordered the entry of corrected judgment sheets after the decision on appeal, and these do

not appear anywhere in the record.3 We conclude, however, that the record is adequate to

2

The trial judge who had denied the motion for DNA testing passed away in 2013 and the

hearing on this matter was conducted by a newly-appointed judge.

3

The original judgment sheets contain other inaccuracies which we do not address on this appeal.

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allow review of the issues raised. See Jerrie Bryant v. State, No. M2010-01954-CCA-

R3-PC, 2011 WL 5052480, at *14 n.1 (Tenn. Crim. App. Oct. 25, 2011) (noting that

amended judgments were not attached to the petition and assuming that the petitioner‘s

representation regarding resentencing was correct for the purposes of analysis).

The Petitioner alleges on appeal that he received the ineffective assistance of

counsel when trial counsel did not obtain an expert to analyze the forensic evidence

recovered from the victim; when trial counsel and appellate counsel did not challenge the

failure to charge aggravated sexual battery and sexual battery as lesser-included offenses

of aggravated rape; when trial counsel failed to meet with the Petitioner; and when trial

counsel‘s cross-examination of the victim ―opened the door‖ to testimony regarding prior

assaults the Petitioner had committed against the victim. Accordingly, we will limit our

summary of the proof at the hearing to testimony bearing on these issues.

Lawrence James, a special agent forensic scientist and supervisor with the TBI,

testified regarding the testing of the samples obtained from the victim. Special Agent

James testified that he had been working with the TBI at the time of the Petitioner‘s trial

and that the TBI had upgraded testing equipment around 1999 or 2000. The same

equipment was in use in 2005, and other upgrades occurred around 2007 and 2010. He

testified that Special Agent Qadriyyah Debnam had attempted, in 2005, to perform

testing on the samples taken from the victim. Special Agent Debnam was able to isolate

some sperm in the samples, but she determined there was not enough to attempt to create

a DNA profile. She analyzed the nonsperm fraction of the samples and found the

victim‘s DNA. Special Agent James testified that the decision not to test a sample

because it appeared insufficient was within the discretion of an individual agent, that it

would have been reviewed by other agents, and that it was not a ―wrong‖ decision. He

agreed that it was possible that an independent laboratory in 2005 might have been able

to obtain DNA from the sperm in the sample. However, he also testified that he was not

aware of any instance in which a private laboratory had obtained a DNA profile when the

TBI had not been able to. The post-conviction court, in denying the funding for further

testing in 2005, found that Special Agent Debnam had also advised the parties that it was

possible that another lab might be able to obtain a DNA profile.

In looking over the evidence and reports to prepare for the post-conviction

hearing, Special Agent James determined that the sample was large enough to obtain a

DNA profile from the sperm. He explained that the TBI‘s equipment was much more

sensitive than it had been in 2005 and that he could obtain a profile with a much smaller

sample size than would have been necessary prior to the more recent upgrades. Special

Agent James found that the sample contained a mixture of DNA, and the major

contributor was the Petitioner. Special Agent James also found DNA from a minor

contributor, and this DNA was consistent with the victim‘s DNA. While he

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acknowledged that another laboratory could come to a different conclusion regarding the

sample, he explained that the difference would primarily be the ratio of the major and

minor contributor, because the laboratory would have to use a different cutting of the

swab. He testified that he would expect that another laboratory would still find the

Petitioner‘s DNA.

The Petitioner‘s trial counsel testified that he was aware, from a notation on the

victim‘s forensic evaluation, that a kit had been collected from the victim, that he

inquired about this evidence, and that he was told by the prosecution that nothing of value

was collected because the victim‘s pain precluded a standard examination. He

acknowledged that he did not seek to test the swabs which were collected. He testified

that he would have preferred not to test the evidence for DNA due to the possibility that it

would be inculpatory, particularly given that the victim and Petitioner had recently been

in a relationship.

The jury was instructed regarding rape as a lesser-included offense of aggravated

rape, and trial counsel did not recall why the jury was not instructed on any other lesser-

included offenses of aggravated rape. He did not include the issue in his motion for a

new trial. Appellate counsel testified that he did not raise the issue regarding failure to

charge lesser-included offenses because the Petitioner‘s theory at trial was that someone

else was the perpetrator of the crime, not that a lesser crime had been committed.

Trial counsel testified that he might have only visited the Petitioner twice in prison

but that he met with him at other times in jail and on several report dates. Trial counsel

acknowledged that he opened the door to some testimony regarding prior assaults that the

Petitioner had committed against the victim.

The Petitioner testified that trial counsel told him that no DNA evidence was

available and that the judge would not approve funding for a ―rape expert‖ to dispute the

forensic nurse‘s testimony that the victim could not be examined due to pain. According

to the Petitioner, trial counsel refused to communicate with him or with his family, and

the total time he spent meeting with trial counsel prior to trial was one and one-half

hours. The Petitioner faulted trial counsel for failing to examine a police report regarding

the victim‘s assault by Mr. Triple and stated that photos from that assault showed prior

scarring that could not be attributed to the conviction offenses.

The post-conviction court denied the petition for relief. It found that trial counsel

was not deficient in failing to retain an expert because the technology in place at the time

would not have allowed for testing and because failure to test was sound trial strategy

given the likelihood of a positive result. The court also found no prejudice because

testing would have further incriminated the Petitioner. The post-conviction court

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concluded that the Petitioner had not shown prejudice from trial counsel‘s failure to

request lesser-included offenses and appellate counsel‘s decision not to appeal the issue.

The court likewise found that there was no evidence of prejudice from trial counsel‘s

alleged failure to meet with the Petitioner. The post-conviction court noted that the

cross-examination of the victim was a reasonable strategic decision even though it

opened to the door to evidence of prior assaults, and it further found that the evidence

was so overwhelming that the admission of evidence of prior assaults could not have

affected the outcome of trial.

The Petitioner acknowledges that he did not present evidence of prejudice

regarding trial counsel‘s failure to test, at the time of the trial, the swabs taken from the

victim. However, he argues that he was unable to present evidence because the post-

conviction court denied his motion for funding, and he alleges that the denial of funding

was a violation of his right to equal protection and due process. Accordingly, the

Petitioner asserts that the post-conviction court erred in denying funding for a DNA

expert as well as that the post-conviction court erred in denying the petition on its merits.

ANALYSIS

I. Funding for Expert Testimony

The Petitioner argues that the post-conviction court erred in denying him funding

for further DNA analysis. We conclude that this issue has been rendered moot by the

testing performed by the TBI in 2015.

Mootness is a doctrine regarding the justiciability of a controversy. McIntyre v.

Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). A case is justiciable when it

involves ―a genuine and existing controversy requiring the present adjudication of present

rights.‖ Id. ―A moot case is one that has lost its character as a present, live controversy.

The central question in a mootness inquiry is whether changes in the circumstances

existing at the beginning of the litigation have forestalled the need for meaningful relief.‖

Id. (citations omitted). When the case may no longer provide relief to the prevailing

party, it is considered moot. Id.

The Petitioner‘s 2005 request for independent testing was premised on the

assertion that an independent laboratory could possibly create a DNA profile from the

sperm in the sample taken from the victim, whereas the TBI‘s 2005 results had been

inconclusive. The crux of the Petitioner‘s motion was a request that the State fund a

second test, one that would be able to retrieve the DNA profile in the sperm recovered

from the victim. While the Petitioner requested that the testing be done by an

independent facility, this request was not based on any allegation that the TBI testing was

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improper, but merely on speculation that another facility might have more sensitive

equipment which could create a DNA profile. The request for funds for independent

testing was denied, but the TBI nevertheless retested the sample using more sensitive

equipment in 2015. This equipment was able to create a DNA profile from the sperm in

order to help identify the assailant. In an unsurprising turn of events, it was the

Petitioner. Accordingly, the relief which the Petitioner sought — further testing to

establish the DNA profile associated with the sperm — was in fact granted. The

Petitioner‘s counsel did not file any subsequent motions asserting that yet another test

was necessary because the 2015 results were somehow invalid. Instead, the Petitioner in

2005 asked for additional DNA testing at the State‘s expense to create a profile of the

assailant, and in 2015 additional DNA testing, which successfully created a profile of the

assailant, was in fact performed — at the State‘s expense. Accordingly, there is no

justiciable controversy between the parties, and we conclude the Petitioner was ultimately

granted the relief he sought.

The Petitioner nevertheless asserts on appeal that independent testing performed in

2005 might have come to a different result, despite the testimony from Special Agent

James that, while another laboratory could have found a different ratio of DNA, it would

not have achieved a result that excluded the Petitioner. In any event, the Petitioner

acknowledges that the Rules of the Supreme Court of Tennessee mandate that ―[i]n non-

capital post-conviction proceedings, funding for investigative, expert, or other similar

services shall not be authorized or approved.‖ Tenn. R. S. Ct., Rule 13, § 5(a)(2). The

Petitioner likewise acknowledges that the Tennessee Supreme Court has decided this

issue in Davis v. State, 912 S.W.2d 689, 695 (Tenn. 1995). However, he argues that his

rights to due process and equal protection have been violated because capital post-

conviction petitioners may be entitled to funding for expert assistance. Owens v. State,

908 S.W.2d 923, 927-28 (Tenn. 1995).

In Davis, the Tennessee Supreme Court noted that there is no statutory provision

entitling post-conviction petitioners to state-funded experts. Davis, 912 S.W.2d at 695.

The Davis court concluded that neither was there a constitutional right to such services,

relying on the fact that neither the State Constitution nor the Federal Constitution

guarantees post-conviction petitioners the right to counsel. Id. at 696. The Davis court

rejected the argument that the denial of State funding for expert services could constitute

a violation of due process or equal protection. Id. Davis cited to Owens, in which the

Court had earlier concluded that the statute entitled capital post-conviction petitioners to

expert assistance in some circumstances. Id. at 695 (citing Owens v. State, 908 S.W.2d

923 and T.C.A. § 40-14-207(b)). The Petitioner was not entitled to testing under Davis.

We note that, since the opinions in Davis and Owens, the Legislature has enacted

the ―Post-Conviction DNA Analysis Act of 2001.‖ See T.C.A. §§ 40-30-301 to -313.

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This Act does not distinguish between capital and non-capital defendants, and it entitles

persons convicted of, among other crimes, aggravated rape to request the ―the forensic

DNA analysis of any evidence that is in the possession or control of the prosecution, law

enforcement, laboratory, or court, and that is related to the investigation or prosecution

that resulted in the judgment of conviction and that may contain biological evidence.‖

T.C.A. § 40-30-303. As a general rule of statutory construction, a particular provision of

a statute will prevail over a more general provision. Keough v. State, 356 S.W.3d 366,

371 (Tenn. 2011). ―When two statutes seemingly address the matter in question, and one

is special and particular and the other is general, then the general statute will be construed

so as to operate on all the subjects introduced therein except the particular one which is

the subject of the special provision.‖ State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005).

We conclude that the Petitioner‘s request for DNA analysis would best have been

analyzed under the statute.

Under the Post-Conviction DNA Analysis Act of 2001, the post-conviction court

is required to order testing if it finds that:

(1) A reasonable probability exists that the petitioner would not have

been prosecuted or convicted if exculpatory results had been obtained

through DNA analysis;

(2) The evidence is still in existence and in such a condition that

DNA analysis may be conducted;

(3) The evidence was never previously subjected to DNA analysis or

was not subjected to the analysis that is now requested which could resolve

an issue not resolved by previous analysis; and

(4) The application for analysis is made for the purpose of

demonstrating innocence and not to unreasonably delay the execution of

sentence or administration of justice.

T.C.A. § 40-30-304. The court may additionally order testing if it finds that:

(1) A reasonable probability exists that analysis of the evidence will

produce DNA results that would have rendered the petitioner‘s verdict or

sentence more favorable if the results had been available at the proceeding

leading to the judgment of conviction;

(2) The evidence is still in existence and in such a condition that

DNA analysis may be conducted;

(3) The evidence was never previously subjected to DNA analysis,

or was not subjected to the analysis that is now requested which could

resolve an issue not resolved by previous analysis; and

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(4) The application for analysis is made for the purpose of

demonstrating innocence and not to unreasonably delay the execution of

sentence or administration of justice.

T.C.A. § 40-30-305. When testing is ordered pursuant to section -304, ―the court shall

order the analysis and payment, if necessary.‖ T.C.A. § 40-30-306. However, for testing

pursuant to section -305, ―the court may require the petitioner to pay for the analysis.‖

Id.

Both these statutory provisions require a finding that the evidence was either not

previously tested for DNA or was ―not subjected to the analysis that is now requested

which could resolve an issue not resolved by previous analysis.‖ The Petitioner, in his

2005 motion, did not ask the post-conviction court to make any factual findings regarding

whether the analysis could resolve an issue not resolved by previous analysis or whether

there was a reasonable probability either that the verdict would have been more favorable

or that the Petitioner would not have been prosecuted. Accordingly, any analysis of the

issue under this provision is waived. The Petitioner is not entitled to relief.

II. Ineffective Assistance of Counsel

The Post-Conviction Procedure Act provides relief when a conviction or sentence

is ―void or voidable because of the abridgment of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.‖ T.C.A. § 40-30-103.

The petitioner bears the burden of proving the allegations of fact in the petition by clear

and convincing evidence. T.C.A. § 40-30-110(f); Ward v. State, 315 S.W.3d 461, 465

(Tenn. 2010). ―Evidence is clear and convincing when there is no serious or substantial

doubt about the correctness of the conclusions drawn from the evidence.‖ Grindstaff v.

State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245

(Tenn. Crim. App. 1998)). The findings of fact made by a post-conviction court are

conclusive on appeal unless the evidence preponderates against them. Ward, 315 S.W.3d

at 465. This court may not substitute its own inferences for those drawn by the post-

conviction court, and questions concerning the credibility of witnesses, the weight and

value of the evidence, and the factual issues raised by the evidence are to be resolved by

the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001).

Mixed questions of fact and law are reviewed de novo, with a presumption of correctness

applied to the factual findings. Ward, 315 S.W.3d at 465. A claim of ineffective

assistance of counsel raises a mixed question of law and fact. Fields v. State, 40 S.W.3d

450, 458 (Tenn. 2001). The trial court‘s conclusions of law are reviewed under a purely

de novo standard with no presumption of correctness. Id.

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Both the Sixth Amendment to the United States Constitution and article I, section

9 of the Tennessee Constitution guarantee the criminally accused the right to

representation by counsel. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008). The right

to counsel encompasses ―the right to ‗reasonably effective‘ assistance, that is, assistance

‗within the range of competence demanded of attorneys in criminal cases.‘‖ Id. (quoting

Strickland v. Washington, 466 U.S. 668, 687 (1984)). In evaluating a claim of ineffective

assistance of counsel, the court must determine ―whether counsel‘s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.‖ Vaughn v. State, 202 S.W.3d 106, 116 (Tenn.

2006) (quoting Strickland, 466 U.S. at 686).

To show that relief is warranted on a claim of ineffective assistance of counsel, the

petitioner must establish both that counsel‘s performance was deficient and that the

deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).

Deficiency requires showing that counsel‘s errors were so serious ―that counsel was not

functioning as the ‗counsel‘ guaranteed the defendant by the Sixth Amendment.‖

Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that

counsel‘s performance fell below an objective standard of reasonableness under

prevailing professional norms. Pylant, 263 S.W.3d at 868. Courts must make every

effort ―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.‖ Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011) (quoting Strickland, 466

U.S. at 689). ―[A] reviewing court must be highly deferential and should indulge a strong

presumption that counsel‘s conduct falls within the wide range of reasonable professional

assistance.‖ Felts, 354 S.W.3d at 277 (quoting State v. Burns, 6 S.W.3d 453, 462 (Tenn.

1999) abrogated on other grounds as recognized in State v. Randall T. Beaty, No.

M2014-00130-CCA-R3-CD, 2016 WL 3752968, at *31 (Tenn. Crim. App. July 8,

2016)). In evaluating counsel‘s performance, ―[s]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.‖ Kendrick v. State, 454 S.W.3d 450, 458 (Tenn. 2015) (quoting Strickland,

466 U.S. at 690-91). The reviewing court must begin with ―the strong presumption that

counsel provided adequate assistance and used reasonable professional judgment to make

all strategic and tactical significant decisions.‖ Davidson v. State, 453 S.W.3d 386, 393

(Tenn. 2014).

In determining prejudice, the post-conviction court must decide whether there is a

reasonable probability that, absent the errors, the result of the proceeding would have

been different. Grindstaff, 297 S.W.3d at 216. ―‗A reasonable probability is a

probability sufficient to undermine confidence in the outcome.‘‖ Honeycutt, 54 S.W.3d

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at 768 (Tenn. 2001) (quoting Strickland, 466 U.S. at 694). ―That is, the Petitioner must

establish that his counsel‘s deficient performance was of such a degree that it deprived

him of a fair trial and called into question the reliability of the outcome.‖ Finch, 226

S.W.3d at 316 (Tenn. 2007). ―A reasonable probability of being found guilty of a lesser

charge, or receiving a shorter sentence, satisfies the second prong of Strickland.‖ Pylant,

263 S.W.3d at 869.

Because both prongs must be established for relief, a court need not address both

if the defendant has failed to prove either deficiency or prejudice. Goad v. State, 938

S.W.2d 363, 370 (Tenn. 1996). Failure to show either deficiency or prejudice precludes

relief. Felts, 354 S.W.3d at 277.

A. DNA Testimony

The Petitioner first asserts that he received the ineffective assistance of counsel

when trial counsel did not insist on having laboratory testing of the swabs collected by

the forensic nurse. The post-conviction court found that trial counsel‘s failure to require

DNA testing was not deficient because testing could not have been conducted with the

technology in existence at the time and also because choosing to avoid testing was a

reasonable trial strategy. Moreover, the court found that the Petitioner could not

demonstrate prejudice.

We agree with the post-conviction court‘s analysis on this issue. This claim is

easily disposed on the grounds that the TBI testing revealed the Petitioner‘s DNA in the

samples and thereby precludes any possibility of finding prejudice. The omitted testing

has proven inculpatory to the Petitioner and bolsters the already strong proof that he was,

as the victim testified, the perpetrator of the crimes. Furthermore, the evidence

introduced at the post-conviction hearing suggests that testing at the time of the trial

would have been fruitless because technology would not have allowed the forensic

scientists to create a DNA profile. Indeed, an attempt at testing in 2005 failed when

Special Agent Debnam found the sample to be of an insufficient size. The Petitioner has

not presented any proof that the testing could have been exculpatory. Neither has he

shown deficiency in the failure to request testing, because the evidence at the hearing

suggests that testing would not have been possible. Moreover, the post-conviction court

found the lack of testing to be reasonable trial strategy, as trial counsel testified that he

would not have wanted testing of the swabs because there was some likelihood that

testing would reveal the Petitioner‘s DNA, given the victim‘s testimony at trial and the

fact that the victim and the Petitioner had recently been romantically involved. We

conclude that the Petitioner has failed to establish either that his trial counsel was

deficient or that there was any possibility of prejudice.

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B. Lesser-Included Offenses

The Petitioner also faults both his appellate and his trial counsel for failing to

challenge the trial court‘s decision not to charge sexual battery or aggravated sexual

battery as lesser-included offenses of aggravated rape. We conclude that the post-

conviction court correctly found that the Petitioner cannot show any prejudice on these

claims.

The trial court charged the jury with rape as a lesser-included offense of

aggravated rape. Trial counsel acknowledged that he had not asked for aggravated sexual

battery or sexual battery to be charged as lesser-included offenses. An erroneous failure

to instruct on lesser-included offenses which are supported by the evidence is a

constitutional error. State v. Ely, 48 S.W.3d 710, 726 (Tenn. 2001). Failure to request

lesser-included offenses is not deficient performance when it is a matter of strategy,

Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016), but here, trial counsel did not testify

that it was a strategic decision. At the time of the Petitioner‘s trial, the trial court was

required to instruct the jury on lesser-included offenses even absent a written request

from trial counsel. T.C.A. § 40-18-110(a) (2000) (―It is the duty of all judges charging

juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or

classes of offense may be included in the indictment, to charge the jury as to all of the

law of each offense included in the indictment, without any request on the part of the

defendant to do so.‖); compare T.C.A. § 40-18-110(a), (c) (2002) (requiring counsel to

submit a written request). The instructions were not requested and the failure to instruct

was not raised in the motion for a new trial or on appeal.4

―For ineffective assistance of counsel claims arising from the failure to properly

request lesser-included offense instructions, the prejudice inquiry assesses whether a

reasonable probability exists that a properly instructed jury would have convicted the

petitioner of the lesser-included offense instead of the charged offense.‖ Moore, 485

S.W.3d at 420-21. This analysis ―mirrors‖ the constitutional harmless error standard that

would be applied had the issue been raised on direct appeal. Id. at 421.

The Tennessee Supreme Court in Moore clarified that the prejudice analysis in an

allegation of error based on a failure to charge lesser-included offenses is dependent on a

determination regarding whether or not any intervening or intermediate lesser-included

offenses were charged to the jury. Id. If the jury rejected an intervening lesser-included

offense, then the reviewing court can conclude that the petitioner was not prejudiced by

4

There was some brief testimony at the hearing that the trial judge who presided over the case

had refused to instruct on lesser-included offenses in several trials around that time period, resulting in the

reversal of some convictions.

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the failure to charge any additional lesser-included offenses, as the jury necessarily

rejected them in rejecting the intervening lesser-included offense.5 See State v. Williams,

977 S.W.2d 101, 106 (Tenn. 1998); but see State v. Stephen John Abbott, No. 01C01-

9704-CC-00122, 1998 WL 847919, at *28–29 (Tenn. Crim. App. Dec. 9, 1998) (Smith,

J., dissenting) (noting that the ―principal distinction‖ between the charged and omitted

lesser-included offenses was hotly contested at trial). When the jury ―by finding the

defendant guilty of the highest offense to the exclusion of the immediately lesser offense,

necessarily rejected all other lesser-included offenses,‖ then the error in failing to instruct

on lesser-included offenses is harmless on direct appeal under Williams. State v. Allen,

69 S.W.3d 181, 191 (Tenn. 2002); see State v. Banks, 271 S.W.3d 90, 128-29 (Tenn.

2008). Likewise, when the jury has rejected an intervening lesser-included offense, the

petitioner cannot demonstrate prejudice on post-conviction review. Moore, 485 S.W.3d

at 421.

On the other hand, when there is no intervening lesser-included offense, the

reviewing court must consider the record, the evidence presented at trial, the defendant‘s

theory, and the jury‘s verdict. Id. at 422. ―In examining the evidence presented at trial,

the harmless error analysis focuses on the distinguishing element between the greater and

lesser offenses, the strength of the evidence of the distinguishing element, and the

existence of contradicting evidence of the distinguishing element.‖ Id. If the court

determines that there is no reasonable probability that a properly instructed jury would

have convicted on the lesser-included offenses, then the petitioner is not entitled to relief.

Id. at 423-24 (concluding that overwhelming evidence supported the distinguishing

element between the greater and lesser offenses).

In applying this analysis, we note that, under current law, sexual battery is a

lesser-included offense of the charged, intervening lesser-included offense of rape.

T.C.A. § 40-18-110(g)(4). The State correctly notes that rape is not, however, an

intermediate offense between aggravated sexual battery and aggravated rape, because

aggravated sexual battery is not a statutorily-defined lesser-included offense of rape.

T.C.A. § 40-18-110(g)(3). At the time of the Petitioner‘s trial, this court had come to the

same conclusion. See State v. Clyde Hambrick, Jr., No. E1998-0893-CCA-R3-CD, 2000

WL 823467, at *11 (Tenn. Crim. App. June 27, 2000) (concluding that aggravated sexual

battery was not a lesser-included offense of rape).

5

The Tennessee Supreme Court has previously rejected what it dubbed the ―strict approach‖ of

―holding that a defendant can never show prejudice stemming from the failure to charge a lesser-included

offense when the defendant has been found guilty of a greater offense.‖ Bryant v. State, 460 S.W.3d 513,

527 (Tenn. 2015), overruled on other grounds by Moore, 485 S.W.3d at 421. ―A jury, having heard the

complete jury instructions, inevitably considers, ‗albeit not explicitly, all applicable lesser-included

offenses supported by the proof.‘‖ Id. (quoting State v. Davis, 266 S.W.3d 896,904 (Tenn. 2008)).

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We conclude that the Petitioner‘s claim that the failure to charge sexual battery as

a lesser-included offense of aggravated rape is best analyzed under Williams. Because

the jury was charged with and rejected the intervening lesser-included offense of rape, the

Petitioner cannot show any prejudice. See, e.g., State v. Bowles, 52 S.W.3d at 78

(applying the Williams analysis to find any error in failing to charge sexual battery was

harmless beyond a reasonable doubt when the jury was charged with the lesser-included

offenses of rape and aggravated sexual battery and chose to convict the defendant of

aggravated rape).

Neither can the Petitioner show any prejudice with regard to the failure to charge

aggravated sexual battery. Aggravated rape includes the ―unlawful sexual penetration of

a victim by the defendant‖ where either ―[f]orce or coercion is used to accomplish the act

and the defendant is armed with a weapon‖ or the defendant causes ―causes bodily injury

to the victim.‖ T.C.A. § 39-13-502(a)(1), (2) (1999). The indictment alleged one count

of aggravated rape by bodily injury and one count in which the Petitioner was armed with

a weapon. Aggravated sexual battery includes ―unlawful sexual contact with a victim by

the defendant‖ where either ―[f]orce or coercion is used to accomplish the act and the

defendant is armed with a weapon‖ or the defendant ―causes bodily injury to the victim.‖

T.C.A. § 39-13-504(a)(1), (2) (1999). Under Moore, we examine the distinguishing

element, the strength of evidence on the distinguishing element, and the existence of

countervailing evidence on the element. Moore, 485 S.W.3d at 423. The distinguishing

element between the crimes is that one requires unlawful sexual contact, while the other

requires unlawful sexual penetration. Sexual contact includes ―the intentional touching

of the victim‘s, the defendant‘s, or any other person‘s intimate parts, or the intentional

touching of the clothing covering the immediate area of the victim‘s, the defendant‘s, or

any other person‘s intimate parts, if that intentional touching can be reasonably construed

as being for the purpose of sexual arousal or gratification.‖ T.C.A. § 39-13-501(6)

(1999). Sexual penetration is defined as ―sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person‘s body or of

any object into the genital or anal openings of the victim‘s, the defendant‘s, or any other

person‘s body, but emission of semen is not required.‖ T.C.A. § 39-13-501(7) (1999).

The proof at trial, including the victim‘s testimony and that of the forensic nurse,

overwhelmingly established that the victim was sexually penetrated and sustained

internal injuries in the course of the assault. The scorched clothes hanger was recovered

by police, and sperm was ultimately recovered from the victim‘s forensic exam. The

Petitioner at trial never contested that the victim was penetrated, choosing instead to

challenge her identification of him as the assailant. Accordingly, there is no reasonable

probability that a properly instructed jury would have convicted the Petitioner on any

lesser-included offenses. The Petitioner has failed to establish prejudice from counsel‘s

failure to request or appeal the jury instructions regarding lesser-included offenses.

-16-

C. Preparation for Trial

The Petitioner also asserts that trial counsel was deficient in failing to meet with

him a sufficient number of times in preparation for trial. The post-conviction court noted

that trial counsel testified that he met with the Petitioner a ―sufficient number of times to

prepare for trial.‖ Although the post-conviction court made no specific credibility

determination, we conclude it implicitly credited counsel‘s claims. Moreover, while the

Petitioner testified that he did not meet with trial counsel a sufficient number of times, he

has introduced no evidence regarding how meeting with trial counsel more often would

have affected the outcome of the trial. Likewise, the Petitioner asserts on appeal that trial

counsel did not investigate properly, but he makes no specific factual allegations

regarding a failure to investigate and makes no specific allegations of prejudice. State v.

Hester, 324 S.W.3d 1, 80 (Tenn. 2010) (―A reviewing court may deem an issue waived

when a party fails to develop an argument in support of its contention or merely

constructs a skeletal argument.‖); Tenn. Ct. Crim. App. R. 10(b) (―Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will

be treated as waived in this court.‖). The Petitioner has not shown that more frequent

communication or further investigation would have led to a reasonable probability that

the outcome of the trial would have been different. The convictions were supported by

overwhelming evidence, including the victim‘s testimony, evidence regarding the

victim‘s injuries, physical evidence recovered from the home, and the circumstances of

the victim‘s rescue from the locked residence. Accordingly, the Petitioner has failed to

establish any sort of prejudice.

D. Evidence of Prior Assaults

The Petitioner likewise asserts that trial counsel was deficient in questioning the

victim about an assault perpetrated by Mr. Triple, thereby opening the door to evidence

regarding prior abuse that the victim suffered at the hands of the Petitioner. The post-

conviction court found both that this was a strategic decision and that the admitted

evidence did not affect the results of the trial. The Petitioner‘s trial strategy was to admit

that the victim had been assaulted but suggest that she had been assaulted by a third

party, most likely Mr. Triple. Strategic choices such as this are ―virtually

unchallengeable.‖ Kendrick, 454 S.W.3d at 458 (quoting Strickland, 466 U.S. at 690).

Moreover, we agree with the trial court‘s conclusion that there is no reasonable

probability that admitting evidence of the Petitioner‘s prior assaults would have affected

the outcome, given the victim‘s strong testimony, the physical evidence regarding the

victim‘s injuries and the circumstances in which she was found in the Petitioner‘s home,

and the heinous nature of the crimes for which the Petitioner was on trial.

CONCLUSION

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Based on the foregoing analysis, we affirm the denial of post-conviction relief.

____________________________________

JOHN EVERETT WILLIAMS, JUDGE

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