William Edward Arnold, Jr. v. State of Tennessee

02/05/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 14, 2019 Session

WILLIAM EDWARD ARNOLD, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2011-B-1778 Joseph P. Binkley, Jr., Judge1

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No. M2018-00710-CCA-R3-PC

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The Petitioner, William Edward Arnold, Jr., appeals from the Davidson County Criminal

Court’s denial of post-conviction and error coram nobis relief from his convictions for

one count of aggravated sexual battery and three counts of rape of a child, for which he

received an effective sentence of twenty-five years. After a careful and laborious review

of the entire record, we are compelled to reverse the denial of post-conviction relief.

Accordingly, the Petitioner’s convictions and sentences are reversed and vacated, and this

case is remanded to the trial court for a new trial and for any necessary pre-trial motions.

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

Remanded for New Trial

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE

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

Patrick T. McNally, Nashville, Tennessee, for the Petitioner, William Edward Arnold, Jr.

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

Attorney General; Glenn R. Funk, District Attorney General; and Joseph E. Clifton,

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

OPINION

Sometime in November 2010, N.M.,2 the minor victim, reported to his mother,

S.B., that the Petitioner, his mentor from the Big Brothers Big Sisters Program, had

1

Although this is a Davidson County Criminal Court case, Judge Joseph P. Binkley, Jr., of the

Fifth Circuit Court of Davidson County, heard this case by interchange. See Tenn. Crim. App. § 17-1-

203.

2

It is the policy of this court to identify minor victims by their initials only. We will also identify

the minor victims’ family members by their initials in order to protect the identity of these victims.

sexually abused him. At trial, the victim testified in graphic detail as to several instances

of sexual abuse by the Petitioner including two instances in the Petitioner’s basement

during which the Petitioner forced the victim to engage in fellatio and two instances in

the den area of the Petitioner’s home when the Petitioner forced the victim to engage in

anal sex. The victim said he did not disclose the Petitioner’s abuse to his mother until

November 2010, when he and his mother began arguing about a sexual conversation that

the victim had been having with a boy from school on the internet. The victim said his

mother gave him a “whupping” with a belt and later questioned him about whether

different people had touched him inappropriately. He said his mother asked whether his

three uncles, her friends, her boyfriends and ex-boyfriends, and her father touched the

victim inappropriately. When his mother said “William’s name,” the victim “didn’t

respond” and “looked down.” He said his mother asked him again, and he looked at her

and nodded his head, and then he started to cry. He said his mother got a Bible, and he

put his hand on the Bible and swore that “William” touched him, although he did not “go

into detail about it.” Afterward, his mother called the police.

The victim also confirmed at trial that he had sexual contact with W.C.L., a minor

and the brother of his mother’s boyfriend, in 2011, after the mentor relationship with the

Petitioner had ended. The victim said he had learned about sex from the Petitioner,

stating “[i]t felt good with [the Petitioner] so I thought it would feel good with [W.C.L.].”

The victim asserted that W.C.L. began coming over to his house in 2010 but that he did

not start spending the night at W.C.L.’s house until 2011, when the sexual contact began.

The victim maintained that he was not aware that W.C.L. had told the Department of

Children’s Services (DCS) and the Franklin Police Department that the sexual contact

between him and the victim occurred in 2010.

The Petitioner testified in his own behalf at trial. He denied that he had sexually

abused the victim. He said he had been assigned as the victim’s mentor through the Big

Brothers Big Sisters Program in the fall of 2007. The Petitioner said that he had met with

the victim weekly at the Boys and Girls Club during the 2007-08 school year but did not

see the victim again until January 2009 when he became a community-based mentor for

the victim. At the conclusion of the evidence at trial, the trial court granted a motion for

judgment of acquittal for counts 1 and 3 charging the Petitioner with aggravated sexual

battery. Thereafter, the jury convicted the Petitioner of the remaining charges, and the

trial court imposed an effective sentence of twenty-five years.

Rule 412 Hearings. The State’s evidence against the Petitioner involved the

victim’s uncorroborated testimony. The Petitioner’s defense theory was that he did not

commit the offenses, that another individual with the same first name, a teenager named

W.C.L., was the individual with whom the victim had engaged in sexual contact for the

time period alleged in the indictment, and that the victim’s sexual contact with W.C.L.

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was the origin of the victim’s knowledge of sexual matters. The trial court conducted

substantive Rule 412 hearings to determine the admissibility of the purported evidence, a

review of which is necessary for resolution of the issues raised in this appeal.

Prior to trial, defense counsel for the Petitioner filed a motion and an amended

motion pursuant to Tennessee Rule of Evidence 412 requesting that the court allow the

Petitioner to present evidence of specific prior sexual conduct of the alleged victim. The

defense sought to present specific incidents of prior sexual conduct to show that the

victim had a “motive . . . to lie about the true identity of the person with whom he had

sexual relations,” “[to] attack [the alleged victim’s] credibility and the credibility of the

State’s [w]itnesses in general,” and “to show that [the alleged victim’s] knowledge of

sexual matters was acquired from a third person[, namely W.C.L.,] and [from]

homosexual pornographic material.” The specific evidence that the Petitioner sought to

present to the jury at trial was the following: (1) “Metro School Record of February 21,

2003 Incident where alleged victim fondled another child’s penis in class and later lied to

the teacher about who initiated said contact,” (2) “Evidence of [of the alleged victim’s]

Sexual Conduct with [W.C.L.] offered pursuant to Rule 412(c)(1) and (4),”3 and (3)

“Vanderbilt Records: Date of Service July 21, 2011 and March 7, 2012: Source of

Information for Cross Examination of Alleged Victim: Regarding Knowledge of Sexual

Matters, based upon homosexual pornography, sexual relationship with [] male peers,

frequent masturbation causing medical diagnosis “Dysuria.”

In particular, the defense wished to present proof showing that the victim reported

that an older child, W.C.L., had sexually assaulted and raped him during the same time

period alleged in the indictment against the Petitioner. The defense also argued that

W.C.L. and the Petitioner shared the same first name “William” and that the allegations

3

In particular, defense counsel relied on the following portions of Rule 412:

(c) Specific Instances of Conduct. Evidence of specific instances of a victim’s sexual behavior is

inadmissible unless admitted in accordance with the procedures in subdivision (d) of this rule, and the

evidence is:

(1) Required by the Tennessee or United States Constitution, or

....

(4) If the sexual behavior was with persons other than the accused,

....

(ii) to prove or explain the source of semen, injury, disease, or knowledge of sexual matters[.]

Tenn. R. Evid. 412(c)(1), (4)(ii).

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against W.C.L. contained the same or similar factual scenarios as the allegations against

the Petitioner. The defense claimed such proof was admissible pursuant to Tennessee

Rule of Evidence 412(c)(1), (4).

At the Rule 412 hearing on September 4, 2012,4 the defense stated that it believed

the State was going to present evidence at trial that the victim’s knowledge of sexual

matters was obtained from the Petitioner’s abuse. The defense argued that if the State

presented that evidence, then the State had effectively opened the door, and the defense

should be able to present extrinsic evidence during cross-examination of the victim’s

prior sexual conduct.

At this hearing, D.L.,5 W.C.L.’s older brother, testified that he moved into the

home shared by S.B., the victim’s mother, and the victim shortly after S.B.’s surgery in

March 2009. He said he introduced his family, including W.C.L., to S.B. and the victim

approximately one year after moving in with them. He also said that W.C.L. visited S.B.

and the victim at their home two times. D.L. stated that during their relationship, S.B.

told him about an incident of a sexual nature that occurred between W.C.L. and the

victim. He said that he was with S.B. in February or March 2010 when she informed a

detective in Nashville about the incident between W.C.L. and the victim as well the

Petitioner’s sexual abuse of the victim. D.L. said that the victim told his mother about

the incident involving W.C.L. approximately one month after the victim disclosed that

the Petitioner had sexually abused him. He said he was not present when S.B. spoke to a

detective in Williamson County. D.L. said he moved out of S.B.’s home in August 2011

when his relationship with S.B. came to an end.

4

The September 4, 2012 hearing was heard by Judge Monte D. Watkins. At the end of this

hearing, Judge Watkins recused himself from this case because he was acquainted with many of the

victim’s family members. Thereafter, the case was assigned to Judge Cheryl A. Blackburn, who heard the

Rule 412 hearings in this case that took place on February 19, 2013, and March 25, 2013. However, on

July 1, 2013, ten days prior to trial, an order was entered transferring the case from Judge Blackburn, a

Criminal Court judge, to Judge Joseph P. Binkley, Jr., a Circuit Court judge. This order stated the

following:

For good cause, the above-referenced case is being transferred from Division III

Criminal Court to Fifth Circuit Court, Judge Joe P. Binkley, Presiding Judge, for trial on

Monday, July 8, 2013. All pre-trial orders have been completed and remain in effect.

Judge Binkley will address any non-evidentiary motions in limine.

5

We have identified this individual by his initials to protect the identity of his minor brother,

W.C.L.

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At the Rule 412 hearing on February 19, 2013, the victim testified that he knew

W.C.L. because his mother’s ex-boyfriend, D.L., was W.C.L.’s brother. The victim

testified that he first met W.C.L. and the rest of D.L.’s family in January 2011, even

though D.L. began dating his mother and moved in with them in 2009. The victim said

that between March and late June 2011, he had a consensual “sexual relationship” with

W.C.L. at W.C.L.’s house in Franklin, Tennessee. At the time of this relationship,

W.C.L. was sixteen years old and the victim was thirteen years old. He said that there

were approximately ten incidents between W.C.L. and him involving masturbation and

fellatio. The victim also described a June 2011 trip to Beech Bend Park in Kentucky

during which W.C.L. attempted to have sex with him. The victim denied telling

Detective Mick of the Franklin Police Department or the forensic interviewer at Our Kids

Center that he had anal sex with W.C.L., even though video recordings of the victim’s

interviews with these individuals showed otherwise, and the victim insisted that he did

not have anal sex with W.C.L..

The victim stated that in June 2011, after the Beech Bend trip, he told his mother

that he and W.C.L. had sexual contact. He said his mother asked him if anything sexual

had happened with anyone else, and she brought out a paper and a pen, and he wrote

W.C.L.’s name down because he could not say it. He denied saying that his mother kept

the sexual contact with W.C.L. a secret. He insisted that his mother did not try to hide

W.C.L.’s sexual contact with him because he and his mother informed his counselor

about this sexual contact one month after he told his mother about it, and the counselor

explained that she was going to have to report W.C.L.’s sexual contact with him to the

authorities even though the victim had said it was consensual.

When defense counsel asked whether the sexual contact between him and W.C.L.

could have actually taken place in 2010 rather than 2011, the victim said, “No, it

happened in 2011.” When the victim was asked whether he had spent some time thinking

about when this sexual contact with W.C.L. occurred, he stated: “Yes. But really this is

irrelevant because I know at the end of the day [the Petitioner] abused me. . . . So all of

this [W.C.L.], it’s irrelevant because all this happened after the fact of what happened

between me and [the Petitioner].” Later, the victim reiterated that he “started having

sexual contact with [W.C.L.] after [the Petitioner].” He asserted that he did not know

W.C.L. at the time he told his mother about the Petitioner’s sexually abusing him because

he told his mother about the Petitioner’s abuse in November 2010 and he first met

W.C.L. in January 2011 and his sexual contact with W.C.L. occurred in the spring and

summer of 2011. The victim said his mother had not helped him with the relevant dates

regarding W.C.L.’s sexual contact with him because he knew “when it happened.”

The victim denied ever texting W.C.L. and denied asking W.C.L. by text to send a

photograph of his penis to him. He said he remembered speaking to a police officer at his

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home in November 2010 while in the presence of his mother and D.L. and telling this

officer that he was sexually abused by the Petitioner.

Although the victim could not state his age when the Petitioner abused him, the

victim stated that the sexual contact, which included anal sex, fellatio, and masturbation,

occurred “right after Big Brothers Big Sisters closed down.” This sexual contact

occurred in the Petitioner’s car or at his house, and the victim denied that this sexual

contact with the Petitioner was consensual. The victim said he first disclosed that the

Petitioner sexually abused him in November 2010. He explained that he and his mother

were talking and that he “just broke down and started crying” and then told her “that

someone touched me.” He said that his disclosure of the Petitioner’s abuse occurred

before W.C.L. had sexual contact with him. He added that his discussions about the

Petitioner’s sexual abuse of him with police officers, with the forensic interviewer at Our

Kids Center, with DCS, and with Luvell Glanton, his attorney in the civil lawsuit he filed

against the Petitioner, occurred before W.C.L.’s sexual contact with him took place. The

victim acknowledged that during his discussions with those individuals, no one asked

him if he had sexual contact with anyone other than the Petitioner.

In addition to hearing testimony from the victim, the trial court also considered the

victim’s August 1, 2011 forensic interview concerning the allegations against W.C.L.,

which was admitted into evidence. During this interview, the victim, who had turned

thirteen years old on April 10, 2011, stated that his sexual contact with W.C.L., which

involved fellatio and anal sex, occurred three to four months prior. He later said that his

sexual contact with W.C.L. occurred in May 2011, after his birthday. Over the course of

this interview, the victim referred to W.C.L. by the name of “William.” The victim

asserted there were approximately seven incidents of sexual contact with W.C.L. and that

this sexual contact occurred at W.C.L.’s home in W.C.L.’s bedroom. The victim stated

that although the fellatio with W.C.L. was consensual, the anal sex with W.C.L. was not

consensual. The victim said that W.C.L. gave him anal sex two to three times, and that

W.C.L. forced the victim to give him anal sex one to two times, and that none of these

incidents of anal sex were consensual. The victim described an incident in which W.C.L.

forced him to bend over the bed so W.C.L. could have anal sex with him, which “hurt”

the victim. The victim said that the last time he saw W.C.L. was on a family trip to

Beech Bend, Kentucky, during the summer of 2011. During this Beech Bend trip,

W.C.L. indicated that he wanted to have sex with the victim, but the victim refused and

no sexual contact occurred. The victim said that he ultimately told his mother about the

sexual contact with W.C.L. when he wrote W.C.L.’s name down on a piece of paper. He

said that he did not want to tell his mother about W.C.L. because it felt “regular” and

“normal.” He added that although he did not want the sexual contact with W.C.L. to

happen again, it did happen again and it felt “right.” The victim said that after he

disclosed this sexual contact with W.C.L., his mother immediately told her boyfriend,

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D.L., who was W.C.L.’s brother. The victim said that he and his mother kept the sexual

contact with W.C.L. a “secret” for a little while and then disclosed this contact to the

Sexual Assault Center. The victim said that he had “no idea” why he and his mother kept

his sexual contact with W.C.L. a secret. He stated that when D.L. confronted W.C.L.

about the sexual contact with the victim, W.C.L. admitted that it had occurred.

Detective Robert Carrigan with the Metropolitan Nashville Police Department

testified that he was the lead investigator regarding the abuse allegations made by the

victim against the Petitioner. He said the victim’s mother first filed a police report

regarding the Petitioner’s abuse on November 23, 2010, and shortly thereafter, he spoke

with the victim’s mother and the victim. He said that generally patrol officers are told to

get most of their information from the family member or disclosure witness and then

have the child interviewed by a forensic interviewer. He said the victim underwent a

forensic interview on December 2, 2010, within a couple of weeks of the initial

disclosure, and then was examined in Our Kids Center in Nashville on December 20,

2010.

Detective Carrigan said that he later asked the victim’s mother to come in and

attempt a controlled phone call with the Petitioner. During their December 8, 2010

meeting, the victim’s mother and D.L. mentioned that “there had been some incidents at

school [regarding] inappropriate statements [the victim] had made to girls,” which had

prompted the victim’s mother to ask the Petitioner to talk to the victim. He said this was

the “only mention of any other sexual issues going on.” Detective Carrigan stated that

during this meeting, D.L. never said anything about the victim having sex with W.C.L..

He said that if that information had come out, he would have been required to start

another investigation into this other suspect separate from the investigation involving the

Petitioner. During this meeting, neither the victim’s mother nor D.L. mentioned anything

about the victim having a sexual relationship with W.C.L., an older teenager.

Detective Carrigan said that on August 8, 2011, he learned that the victim had told

a DCS worker in July 2011 that he had sexual contact with W.C.L.. He said that because

the sexual contact with W.C.L. had occurred in Williamson County, the case was referred

to that county for a follow-up. Detective Carrigan said that sometime after August 8,

2011, he briefly talked to the victim’s mother and D.L. about the other case involving

W.C.L.’s sexual contact with the victim; however, he said that they did not have a

detailed discussion about this other case. He said that there would be no reason for D.L.

to have talked to him about W.C.L.’s sexual contact with the victim during his meetings

with the victim’s mother during the fall of 2010 and the early part of 2011 because those

meetings pre-dated the victim’s July 2011 disclosure that W.C.L. had sexual contact with

him. Nevertheless, Detective Carrigan acknowledged that the sexual contact between

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W.C.L. and the victim could have been occurring long before the victim’s July 2011

disclosure of it.

At the Rule 412 hearing that was continued to March 25, 2013, W.C.L., who was

twenty years old at the time, testified that he did not recall when he first met the victim or

when his brother D.L. dated the victim’s mother. W.C.L. said he thought the victim was

fourteen when he first met him because the victim was “just smart.” W.C.L. later

acknowledged that someone, perhaps his brother D.L., told him the victim was actually

twelve years old when W.C.L. first met him. W.C.L. acknowledged that he spoke with

the defense attorneys at the courthouse prior to the September 4, 2012 hearing and told

them that he met the victim in 2009; however, he said he “was still unsure at the time” he

made that statement.

W.C.L. said that the victim called him on his cell phone, although he never called

the victim. He stated that he spent time with the victim both at the victim’s house and at

his house. When he was asked to describe what happened when he first came into

contact with the victim, W.C.L. asked if he could “plead the Fifth.” The court informed

W.C.L. that he was not in any trouble, that he was not going to get in any trouble, and

that the purpose of this hearing was to find out what contact he and the victim had and

when this contact occurred.

W.C.L. stated that he had sexual contact with the victim. He said that during one

incident, the victim came into his room at his house while he was asleep and gave him

fellatio. He said that while he had no idea how old he was at the time, it was before his

twelfth grade year in high school. He acknowledged that he graduated from high school

in 2011. When the defense asked if this incident would have had to have been in 2010,

W.C.L. said, “I don’t think so.” W.C.L. was unable to state what year this incident had

occurred.

W.C.L. said another incident occurred when they were at the victim’s home. He

said the victim was crawling on the floor and then began touching him sexually and then

gave him fellatio. He acknowledged that he also gave the victim fellatio on at least one

occasion. W.C.L. said he was “unsure” of how many different occasions he and the

victim had sexual contact, although he asserted that their contact was limited to fellatio.

W.C.L. said he did not recall watching pornographic movies with the victim.

W.C.L. acknowledged that he had previously talked to both defense attorneys in

the conference room. He said he was “unsure” whether he told the defense attorneys that

he had sex with the victim five to six years ago. He said he “possibly” remembered being

interviewed on videotape by DCS and Our Kids Center about his sexual contact with the

victim. W.C.L. stated that he did not recall telling the DCS investigators that the sexual

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relationship with the victim ended before Christmas 2010. He said his memory “could

have” been fresher about these incidents during those interviews that it was now. W.C.L.

acknowledged that if he remembered more details during those interviews, then the

information he gave in those interviews was more accurate that what he remembered

now.

W.C.L. said that he went on a trip with his family to Beech Bend Park and that the

victim was present on this trip. While he acknowledged there was an encounter with the

victim in the restroom while at this park, he said that “[n]othing happened” because it

was a public area. He did not recall if he said something to the victim or if the victim

said something to him. He also said he was “unsure” when the trip to Beech Bend Park

occurred but was “pretty sure it was hot outside.” He did not remember what grade he

was in when this trip occurred. W.C.L. said that all sexual contact with the victim

stopped after the trip to Beech Bend Park. He also said that after his brother D.L. stopped

dating the victim’s mother, he never saw the victim again.

When defense counsel asked if he remembered whether he was still in high school

when he was interviewed by DCS, W.C.L. replied, “I do not. Look, I’m going to be

honest. I smoke like pot every day, . . . I do not remember.” However, W.C.L. denied

that he was under the influence of any type of drugs during the hearing.

W.C.L. stated that he stopped having any sexual contact with the victim because

he wanted to date other males. He said that the victim once texted him and asked him to

send a photograph of his penis, although he did not remember when this occurred or what

phone number or cell provider he had at the time. W.C.L. also did not remember what

number the victim used to text him.

In addition to hearing testimony from W.C.L. at this hearing, the trial court also

considered W.C.L.’s November 9, 2011 interview with DCS and Detective Tamara Mick

of the Franklin Police Department. During this interview, Detective Mick informed

W.C.L. that the victim had made an allegation that W.C.L. forced him to have anal sex,

but W.C.L. denied this allegation. W.C.L. acknowledged that he had had sexual contact

with the victim; however, he asserted that this sexual contact involved fellatio and that it

had occurred approximately eight times a year ago. W.C.L. said that he had been

seventeen years old at the time of the contact and that he had informed the victim of his

age. When Detective Mick informed W.C.L. that the victim would have been twelve

years old at the time of their sexual contact, W.C.L. replied that the victim kept telling

him he was fourteen years old. W.C.L. asserted that the sexual contact with the victim

occurred at both the victim’s home and his home. He said that this sexual contact

occurred over a period of four or five months and that his sexual conduct with the victim

ended prior to Christmas 2010. W.C.L. asserted that in November 2010, he began dating

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another male, and all sexual contact with the victim ended when he began dating this

individual. W.C.L. added that he then had relationships with males other than the victim

in January 2011, February 2011, and July 2011. W.C.L. said that shortly before the

sexual contact with the victim ended, the victim obtained his cell phone number and

texted him trying to get W.C.L. to send him a photograph of his penis, but W.C.L.

refused. W.C.L. also said he was aware of the victim having sexual contact with another

friend. He said that the victim’s mother had discussed another case involving a rich man,

the victim’s mentor, whom she was suing. He said the victim’s mother had talked about

how she was going to spend the money she got from that lawsuit. W.C.L. said the victim

never talked to him about the abuse that allegedly occurred with the mentor.

The trial court also considered the November 9, 2011 and December 16, 2011

narrative reports concerning the victim’s allegations against W.C.L. written by Detective

Tamara Mick of the Franklin Police Department. In these reports, Detective Mick noted

that she had spoken to the assigned prosecutor, who had “advised that the time frame [of

the sexual contact] provided by the suspect, [W.C.L.], appeared at this point to be more

reliable [than the victim’s time frame] due to [W.C.L.] being able to provide details as to

why he believed the incident occurred in November 2010.” Detective Mick said the

prosecutor also “advised that without the victim providing information to substantiate the

time frame of May 2011 [for the sexual contact with W.C.L], she would recommend

accepting [W.C.L.]’s time frame with reference information to support it. Then Detective

Mick included the following note:

[The prosecutor] and I discussed that if we accepted the time frame

of November 201[0] for the sexual assault incidents, then [W.C.L.] would

have been 17 and the victim would have been 12 at the time of the assaults.

[The prosecutor] stated based on this information[, W.C.L.] would have to

be charged in Juvenile Court for “Rape of a Child.” She advised that would

then require that the case be transferred to Circuit Court due to the suspect

now being an adult. She advised in this case she would not request the case

be transferred and that [the] case “would not go anywhere” if it was not

transferred. She advised it would be dismissed in Juvenile Court if the

charge of Rape of a Child was not transferred to Circuit Court.

NOTE:

Due to DCS Black not being able to establish contact with the

victim’s mother and [the prosecutor’s] stating she would not transfer the

case to Circuit Court, this case is being closed by Exception.

CASE STATUS:

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This case is CLOSED by EXCEPTION, Lack of victim cooperation

.

The victim’s mother, S.B., testified that she began dating W.C.L.’s brother, D.L. at

the end of March 2009, while she was recovering from surgery. In April 2009, D.L.

moved into the home where S.B. and the victim lived. S.B. said that she and the victim

first met D.L.’s family in Franklin in December 2009 or January 2010. On cross-

examination, she admitted that she and the victim actually met D.L.’s family in April or

May 2009. S.B. said that the victim first spent the night at W.C.L.’s home without her on

two occasions in 2010 or 2011. She also said that W.C.L. spent the night at her home

when she was there and that W.C.L. would sleep on her couch. She said there was one

occasion during the “later part of 2010” when W.C.L. and his younger sister babysat the

victim and his younger brother; however, she said she returned home around 1:00 a.m.

that night.

S.B. said that on November 21, 2010, the victim informed her that he had been

sexually abused by the Petitioner . She asserted that the victim, in November 2010, was

not spending time with W.C.L. without her; however, she acknowledged that the victim

began spending more time with W.C.L. around December 2010 or January 2011. S.B.

confirmed that she and the victim attended a trip with W.C.L. and his family to Beech

Bend Park during a summer holiday in 2011. She said that she remembered this trip

happening during the summer of 2011 because D.L. left a couple of months later.

S.B. said that from November 2010 to May 2011, the victim was seeing a

counselor because he had been sexually abused by the Petitioner. She said that sometime

“right after the Beech Bend” trip, the victim informed her of a “sexual relationship with

[W.C.L.] that occurred “again in January” 2011 and then during the Beech Bend trip the

summer of 2011. She said the victim disclosed “what his part was as well as [W.C.L.]’s

part” and told her that “he was ashamed of it, he didn’t like it, he didn’t understand why

he wanted to do it.” The victim said he “had urges from the original abuse,” and she told

him to talk about it with his therapist in counseling. S.B. said the victim told her that all

of his sexual activity with W.C.L. was a response or reaction to his abuse by the

Petitioner. S.B. said the victim told her about W.C.L.’s sexual contact with him on a

Sunday, and she and the victim disclosed it to the therapist the following day, on

Monday, and the therapist concluded that she needed to report this sexual contact to DCS.

S.B. said that she did not immediately contact DCS because W.C.L. was a teenager, but

she denied keeping it a secret. She said that the victim never indicated that he was

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already engaged in a relationship with W.C.L. during the time that he was being

mentored by the Petitioner.

At the conclusion of the March 25, 2013 hearing, the court asserted that there were

two issues relevant to the Rule 412 motion: (1) “whether or not any of this [evidence] is

admissible in cross-examination of [the victim], and (2) “even if that’s admissible what

other extrinsic evidence might or might not be admissible.” During closing arguments,

defense counsel initially contended that the specific incidents of sexual conduct were

admissible under Rule 412(c)(1) and (4). However, he later acknowledged that none of

the subsections of (c)(4) applied and that the evidence of the victim’s sexual conduct with

W.C.L. was admissible under (c)(1) because it was “required by the United States

constitution in the confrontation clause.” He explained that it was admissible under the

constitution “[b]ecause [W.C.L.] is the one that [the victim] had a sexual relationship

with” and “in order to disguise and protect that relationship[,] . . . [the victim] . . .

accused [the Petitioner] of committing that crime.” Defense counsel also argued that the

Petitioner should be allowed to present this evidence pursuant to State v. Brown, 29

S.W.3d 427 (Tenn. 2000), because “the state constitution and the United States

constitution protect[] [the Petitioner’s] ability to present this evidence.” He asserted that

the Petitioner should be allowed to present extrinsic proof of the victim’s sexual contact

with W.C.L. through W.C.L.’s testimony and through the recording of W.C.L.’s

interview with DCS and the Franklin Police Department. He said this evidence showed

that the victim’s sexual contact with W.C.L. “occurred prior to the disclosure against [the

Petitioner].” At that point, the following exchange occurred between the trial court and

defense counsel:

The Court: Isn’t that what 412 is all about is that you can’t slime

somebody, for lack of a better word, in some totally

other context by bringing in their sexual behavior in

order to make them look horrible other than the issue

of credibility on the time frame in this case.

Defense Counsel: I don’t want to—I think we’re going back to the first

prong again.

The Court: That’s assuming I even allow you to ask [the victim]

the questions. How are you not stuck with the

answers?

Defense Counsel: Well, Your Honor, I think that—

The Court: Specific instances of conduct, go back to 608.

- 12 -

Defense Counsel: But, Your Honor, this would be directly on point with

regard to whether or not [the Petitioner]—

The Court: It has to do with credibility. But you’re saying it has

to do with his credibility.

Defense Counsel: What I’m saying is that [the Petitioner] never

committed these acts, and [W.C.L.] did.

The Court: Okay.

Defense Counsel: And the jury needs to be able to hear that based upon

the constitution, the United States [C]onstitution—

The State argued against the admission of this evidence under Rule 412, stating,

“[Based on the case law,] it’s really extraordinary circumstances wherein a constitutional

argument is going to trump the rape shield law and the reasons behind the rape shield

law. We don’t have them here.” The trial court informed the parties that it was going to

take the Rule 412 motion under advisement and then issue a written order.

On May 14, 2013, the trial court entered an order granting in part and denying in

part the defense’s Rule 412 motion. In it, the court stated that it was presented with the

following issues: (1) “Whether any evidence pertaining to the Victim’s past relationship

with [W.C.L.] is admissible during the cross-examination of [the victim], and (2) “[I]f so,

whether any extrinsic evidence (e.g., the testimony of [W.C.L.], police reports, etc.) is

admissible.” As to whether the evidence of the victim’s sexual relationship with W.C.L.

was admissible during cross-examination under Rule 412, the trial court stated that the

defense only sought admissibility of this evidence under Rule 412(c)(4), even though the

defense contended in its motion and throughout its closing argument that the evidence of

the victim’s sexual relationship with W.C.L. was admissible pursuant to Rule 412(c)(1)

because it was required by the Tennessee or United States Constitutions. The court made

the following findings and conclusions pursuant to Rule 412 in its order:

In the Amended Motion, the defense argues the evidence of the prior

sexual relationship is admissible pursuant to subsection (c)(4). Thus, the

victim’s sexual behavior with a person other than the defendant may be

admissible under the rule only to (1) rebut/explain scientific evidence, (2)

prove source of semen/injury/disease (or knowledge in the case of a child

- 13 -

victim), or (3) to prove consent, but only if there is a pattern. Tenn. R.

Evid. 412(c)(4). However, during Court questioning at the evidentiary

hearing, the defense conceded that the evidence they seek to introduce is

not admissible pursuant to [Rule] 412 because consent is not at issue (since

the defense is arguing the acts never occurred) and none of the reasons set

forth in section (c)(4) apply [to] the facts in this case. Thus, evidence

regarding the prior sexual relationship is inadmissible pursuant to Rule 412.

Under a heading labeled “Due Process,” the trial court later stated, “Although the

evidence is not admissible pursuant to the exceptions enumerated in Rule 412, it does

not mean that all the testimony sought is prohibited under all grounds.” The court then

made the following findings and conclusions:

The defense argued that evidence regarding the Victim’s prior sexual

relationship with [W.C.L.] is relevant because regardless of the

contradicting testimony as to when the sexual relationship may have

occurred, it is clear it falls within the 2007-2010 time frame alleged in the

indictment.

The Sixth Amendment and the Due Process Clause of the Fourteenth

Amendment clearly guarantee a criminal defendant the right to present a

defense which includes the right to present witnesses favorable to the

defense. State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (citing Taylor

v. Illinois, 484 U.S. 400, 408 (1988); Washington v. Texas, 388 U.S. 14, 23

(1976); Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Sheline, 955

S.W.2d at 47). As the Tennessee Supreme Court stated in Brown:

Although “[t]he right to present witnesses is of critical

importance . . . it is not absolute. In appropriate cases, the

right must yield to other legitimate interests in the criminal

trial process.” Chambers, 410 U.S. at 295, 93 S Ct. at 1046.

Specifically, “[i]n the exercise of this right, the accused, as is

required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and

reliability in the ascertainment of guilty and innocence.” Id.

at 302, 93 S. Ct. at 1049. However, these procedural and

evidentiary rules of exclusion “may not be applied

mechanistically to defeat the ends of justice.” Id. “Such rules

do not abridge an accused’s right to present a defense so long

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as they are not ‘arbitrary’ or disproportionate to the purposes

they are designed to serve.’” United States v. Scheffer, 523

U.S. 303, 118 S. Ct. 1261, 1264, 140 L.Ed.2d 413 (1998)

(quoting . . . Rock v. Arkansas, 483 U.S. 44, 56, 107 S. Ct.

2704, 2711, 97 L.Ed.2d 37 (1987)).

Brown, 29 S.W.3d at 432-33. The facts of each case must be considered

carefully to determine whether the constitutional right to present a defense

has been violated by the exclusion of evidence. Generally, the analysis

should consider whether: (1) the excluded evidence is critical to the

defense; (2) the evidence bears sufficient indicia of reliability; and (3) the

interest supporting exclusion of the evidence is substantially important.

Brown, 29 S.W.3d at 433-34.

As such the Court finds it permissible for the defense to inquire in

limited fashion about the Victim’s prior sexual relationship with [W.C.L.

(such dates that it occurred, how long the sexual relationship lasted, etc.)

during the cross-examination of the Victim. Pursuant to Rule 608, specific

instances of conduct may be used to impeach a witness during cross-

examination if the conduct is probative of the witness’s character for

truthfulness or untruthfulness. If, however, the witness denies the conduct,

the party proferring the evidence must be satisfied with that response and

may not seek to prove the conduct by extrinsic evidence. Tenn. R. Evid.

608(b); State v. Shepherd, 862 S.W.2d 557 (Tenn. Crim. App. 1992). That

is, while the Court has found the requirements of Rule 608 have been

satisfied, and the defense [can] question the Victim about his previous

relationship with [W.C.L.], the defense is not able to introduce any

extrinsic testimony or evidence as to the issue, including but not limited to

the testimony of [W.C.L.] or statements from his forensic interview[ (Ex.

3), the cross-examination of [S.B., the victim’s mother,], the testimony of

Detective Mick, or the Franklin Police Department record (Ex. 4).

Direct Appeal and First Petition for Writ of Error Coram Nobis. On January

9, 2014, the Petitioner appealed his convictions, arguing in part that the trial court had

erred in denying his Rule 412 motion. See State v. William Edward Arnold, Jr., No.

M2014-00075-CCA-R3-CD, 2015 WL 99272, at *1 (Tenn. Crim. App. Jan. 7, 2015),

perm. app. denied (Tenn. May 15, 2015) (designated “Not for Citation”). On October 9,

- 15 -

2014, while this appeal was pending,6 the Petitioner filed a timely petition for writ of

error coram nobis, alleging that the victim during his deposition in the civil case had

offered testimony that, in effect, recanted his criminal trial testimony about the timing of

his sexual relationship with W.C.L, which the Petitioner claimed amounted to the

discovery of new evidence requiring coram nobis relief. Also on October 9, 2014, the

Petitioner filed a motion to stay his direct appeal pending the outcome of his coram nobis

petition.7 See id. at *5 n.8.

On October 30, 2014, this court granted the motion to stay. See id. In its order,

this court granted the stay after summarizing the issues in the Petitioner’s coram nobis

petition, stating: “In the petition for writ of error coram nobis, filed in the trial court, [the

Petitioner] asserts that [the victim] has ‘recently testified, under oath, at a civil

deposition, offering testimony which, in effect, recants his testimony from the trial in this

case.’” State v. William Edward Arnold, Jr., M2014-00075-CCA-R3-CD (Tenn. Crim.

App. Oct. 30, 2014) (order).

On November 20, 2014, the coram nobis court summarily dismissed the petition

for the writ, finding that the victim had not recanted any material testimony provided at

either the Rule 412 hearing or the criminal trial and that, consequently, there was no

newly discovered evidence requiring coram nobis relief. William Edward Arnold, Jr.,

2015 WL 99272, at *5 n.8; William Edward Arnold, Jr., M2014-00075-CCA-R3-CD,

(Tenn. Crim. App. Jan. 5, 2015) (Motion to Lift Stay of Appellate Proceedings). The

Petitioner did not appeal the summary dismissal of his petition for writ of error coram

nobis. Id.; William Edward Arnold, Jr., 2015 WL 99272, at *5 n.8.

Thereafter, this court lifted the stay, and on January 7, 2018, affirmed the

Petitioner’s convictions on direct appeal. In its opinion, this court held that the

introduction of the specific instances of any sexual information the victim obtained from

his relationship with W.C.L. were “not critical to the issue of whether [the Petitioner]

raped the victim” because the relationship with W.C.L. “most likely started in late 2010

after the abuse by [the Petitioner] was reported.” William Edward Arnold, Jr., 2015 WL

99272, at *11. It then held that the trial court “struck a balance” by “allowing [the

Petitioner] to cross-examine the victim about the consensual sexual relationship he had

with W.C.L. without unnecessarily subjecting the victim to an invasion of his sexual

privacy.” Id. The court also noted that defense counsel admitted during the hearing on

this matter that Rule 412(c)(4) did not apply. Id. at *10. On May 15, 2015, the

Tennessee Supreme Court denied the Petitioner’s application for permission to appeal.

6

Oral argument on the direct appeal occurred on September 9, 2014, and the opinion for this

appeal was filed on January 7, 2015.

7

Although this petition for writ of error coram nobis is not included in the appellate record, other

portions of the record indicate that this first coram nobis petition was, in fact, filed.

- 16 -

Petition for Post-Conviction Relief and Second Coram Nobis Petition. On

May 3, 2016, the Petitioner timely filed a petition for post-conviction relief, alleging (1)

that his trial attorneys were ineffective in failing to properly litigate pretrial motions, in

failing to adequately and effectively investigate his case, in failing to obtain a defense

expert to challenge the proof, in failing to challenge objectionable jury instructions and

tender special instructions, in failing to adequately and effectively prepare him to testify,

in failing to make appropriate objections to the State’s evidence and testimony, and in

failing to present a defense and (2) that he was denied his right to due process based on

the prosecution’s improper comments during closing argument.

On July 3, 2017, the Petitioner filed an untimely second petition for writ of error

coram nobis, claiming that the deposition testimony provided by the victim and his

mother in the civil case constituted the discovery of new evidence, which, if it had been

available at trial, may have resulted in a different outcome. He stated that the victim and

the victim’s mother acknowledged during these civil depositions that the victim and

W.C.L. had a sexual relationship and that the victim had been exposed to homosexual

pornography and had knowledge of sexual matters prior to making the allegations of

sexual abuse against the Petitioner. The petition also asserted that the victim claimed

during the civil deposition that the Petitioner had chest hair and no tattoos, when in

reality, the Petitioner had never been able to grow chest hair and had several large tattoos

on his left arm and both legs, which indicated that the victim had never seen the

Petitioner with his clothing removed. In addition, the petition asserted that the victim

during his civil deposition provided a date for the last incident of sexual abuse that was

different than the date the victim had provided at trial.

Also on July 3, 2017, the Petitioner filed an amended post-conviction petition,

reiterating several issues alleged in the first post-conviction petition and alleging new

issues that his trial attorneys were ineffective in failing to file a comprehensive motion

for a bill of particulars and to pursue an adequate response from the State, in failing to

call W.C.L. at trial, or alternatively, in failing to call Detective Mick and in failing to

present the videotape of W.C.L.’s investigation by the Franklin Police Department, in

failing to present a defense of lack of opportunity, in failing to object to improper

comments by the prosecutor during closing argument, and in failing to ask the victim

necessary questions about the Petitioner’s body and the tattoos and brands on the

Petitioner’s body.

On February 20, 2018, the Petitioner filed an amended coram nobis petition,

alleging that Dr. Barbara Ziv’s report provided new evidence and that had this report

been available for trial, it may have resulted in a different outcome. Specifically, the

- 17 -

Petitioner asserted in the petition that the victim admitted to Dr. Ziv that he had not seen

W.C.L. since November 2010.

On February 20, 2018, the State filed a response, arguing that the second coram

nobis petition should be dismissed without a hearing because it was time-barred, because

the Petitioner was not entitled to due process tolling, and because this same claim had

been previously determined against the Petitioner in his first petition for the writ.

Evidentiary hearings on the Petitioner’s coram nobis petitions and post-conviction

petitions were held on February 22, 2018, and March 12, 2018.

February 22, 2018 Hearing. Gary Kellar testified that he was an attorney and

began representing the Petitioner in 2011 in the civil lawsuit filed by the victim and his

mother. He explained that this civil case had been initiated before the trial in the

Petitioner’s criminal case involving the victim. Kellar said he followed the Petitioner’s

criminal case “very, very closely” because he knew the “the criminal matter would have a

significant impact on the civil matter.” He also said that he attended the Petitioner’s

criminal trial.

As a part of the civil case, he took discovery depositions of the victim and the

victim’s mother, which resulted in approximately 1500 pages of deposition testimony.

The transcripts from these depositions were admitted as exhibits during the post-

conviction hearing without objection. The victim’s mother was deposed on July 22, 23,

and 24 of 2014, and the victim was deposed August 25 and 26 of 2014 and then on

September 13, 2014. Kellar said that he reviewed the victim’s and the victim’s mother’s

testimony from the Petitioner’s criminal trial in order to prepare to depose them in the

civil case.

Kellar said that during the victim’s deposition in the civil case, the victim admitted

that he met W.C.L. in the summer of 2009 or 2010, which was wholly inconsistent with

the victim’s testimony at the Petitioner’s criminal trial that he met W.C.L. in 2011, after

he disclosed that the Petitioner sexually abused him. The victim also said that W.C.L.

was sixteen years old at the time he first met him. Kellar noted that at the Petitioner’s

criminal trial, the victim claimed that the only way he knew about these sexual matters

was from the Petitioner, which Kellar did not believe. As a result, Kellar attempted to

establish during the victim’s civil deposition that the victim had knowledge of these

sexual matters prior to any involvement with the Petitioner. In particular, Kellar

attempted to show that the victim had knowledge of sexual matters based on his viewing

of homosexual pornography prior to the time he met the Petitioner. He said the victim

disclosed during the deposition that his mother called him a “f[----]t” when she

discovered that he was viewing homosexual pornography on his cell phone or when his

mother discovered that he was talking to a guy . The victim also disclosed that when his

- 18 -

mother discovered that he was writing messages in a chat room, she asked him if anyone

had touched him, and the victim initially replied, “No,” before telling his mother

“William” had abused him.

Kellar said that during this deposition, he asked the victim to provide more details

than the victim had disclosed during the Petitioner’s criminal trial about the alleged

incidents involving the Petitioner. He asked the victim if the Petitioner had chest hair,

and the victim replied affirmatively, although Kellar knew that the Petitioner did not have

any chest hair. He also asked the victim if the Petitioner had any tattoos, which the

victim denied, although Kellar was aware that the Petitioner had “definitive tattoos on his

body” that were “easily discernible.” Kellar said that during the deposition, the victim

disclosed that he began “cutting” himself in March 22, 2011. He also noted that

information disclosed during discovery showed that the victim had been exposed to

homosexual pornography prior to making the allegations against the Petitioner in

November 2010.

Kellar said that during the civil deposition of the victim’s mother, she admitted

that the victim first met W.C.L. in August 2009 when D.L. moved in with her. Kellar felt

that the mother’s admission was significant because it indicated that the victim and

W.C.L. had likely had sexual contact during the summer of 2009. Kellar noted that the

victim’s mother had been dating D.L., who was W.C.L.’s older brother, in 2010, which

was when the victim made the allegations against the Petitioner. He said the victim’s

mother admitted during her deposition that W.C.L.’s family had told her that W.C.L. was

seventeen years old when he developed a sexual relationship with the victim.

Kellar said that he became aware during his investigation in the Petitioner’s civil

case that the Franklin Police Department had investigated W.C.L. regarding the victim’s

allegations that W.C.L. had sexually abused him. He also said that he had seen

documentation regarding this investigation.

Kellar said he assisted the Petitioner’s criminal defense attorneys by attending

client meetings and by providing information he received through the civil discovery

process. He acknowledged that the Petitioner’s defense attorneys extensively cross-

examined the victim and his mother at the criminal trial and agreed that trial counsel was

a “zealous advocate” for the Petitioner during her closing argument when she highlighted

the multiple inconsistencies in the testimony provided by the victim and the victim’s

mother. He said trial counsel also asserted during her closing arguments that the victim

and the victim’s mother had lied about the allegations against the Petitioner and that the

victim had acquired his sexual knowledge from W.C.L., rather than the Petitioner.

- 19 -

Kellar stated that the Petitioner’s attorneys in the criminal case were limited in

their ability to present proof because of the trial court’s unfavorable ruling on the

Petitioner’s Rule 412 motion. However, despite this damaging ruling, Kellar said that the

Petitioner’s defense attorneys argued to the jury that the victim obtained his sexual

knowledge from W.C.L. and not the Petitioner.

Kellar admitted that he was able to delve a lot deeper in the civil case than the

Petitioner’s attorneys had been able to in the criminal case. The Petitioner was appointed

new counsel after he was convicted in the criminal case, who filed the first petition for

writ of error coram nobis on the Petitioner’s behalf based on the civil depositions of the

victim and his mother. He said this coram nobis petition was filed within approximately

six weeks of the 2014 civil depositions of the victim and his mother. Kellar recalled that

the trial court denied the coram nobis petition. He noted that he was unable to complete

the 2014 civil depositions of the victim and his mother because the civil court stopped

him and that the court later refused to allow him to take additional depositions of the

victim and his mother. Kellar said that the trial in the civil case had not yet occurred, and

he was in the process of taking additional deposition testimony from other witnesses and

the other defendants in that case. He said there had been no other hearings or

proceedings where he had been able to further examine the victim and the victim’s

mother.

Kellar said he subpoenaed the cell phone records of the victim and W.C.L.

because he was attempting to show there was contact between the victim and W.C.L.

prior to 2011, which would have contradicted the victim’s testimony at the Petitioner’s

criminal trial. Although he issued subpoenas to the cell phone carriers, he said the

process of obtaining cell phone records was “very laborious and very difficult” and “took

a while.” Ultimately, he was unable to obtain these cell phone records, which

“[a]bsolutely devastated” the Petitioner’s coram nobis case and resulted in the dismissal

of the Petitioner’s first petition for writ of coram nobis. Kellar later admitted that he had

not seen the Petitioner’s first petition for writ of error coram nobis or the court’s order

dismissing it and, therefore, was not aware that the main ground in the petition was the

testimony of the victim and his mother in the civil depositions, which effectively served

as a recantation of their testimony at the criminal trial because it was so contrary to the

testimony they had provided at the Petitioner’s trial. Kellar also acknowledged that

because he had not seen the court’s order denying coram nobis relief, he was not aware

that the court did not mention the absence of the cell phone records between W.C.L. and

the victim.

- 20 -

Dr. Barbara Allen Ziv,8 an expert in forensic psychiatry, testified that she

performed a forensic evaluation of the victim on August 14, 2017, at the request of

attorney John Anderson, the attorney representing Big Brothers Big Sisters of Middle

Tennessee in the civil lawsuit. She stated that the victim was nineteen years old at the

time of this interview and that the interview lasted from approximately 8:30 a.m. to 3:00

p.m.. Dr. Ziv stated that she had not been hired by the Petitioner to assist with the post-

conviction hearing and that she was not paid for her testimony at this hearing.

Dr. Ziv stated after she was asked to evaluate the victim, she initially assumed that

her role would be to assess whether, or if, there were damages because of the Petitioner’s

sexual abuse of the victim, given that the Petitioner had already been convicted in the

criminal trial. However, after reviewing the required documents and evaluating the

victim, Dr. Ziv said that it became clear that the victim had sexual contact with W.C.L..

She noted that the victim was very forthcoming regarding his coming to terms with his

homosexuality and the fact that his mother, who was volatile and violent, believed that

his homosexuality was a sin. Dr. Ziv said that although the victim was forthcoming

about his sexual relationships and his sexual contact with W.C.L, the victim’s “whole

demeanor changed” when he talked about the Petitioner. When she first brought up the

Petitioner, the victim said he did not want to talk about the Petitioner, and they talked

about the rest of his life history, including his sexual relationship with W.C.L., before

they began talking about the Petitioner again. She said the victim began talking about the

Petitioner “in a very perfunctory way” and then stopped talking. She said the victim then

said, “I wish this hadn’t happened” and “I feel guilty.”

Dr. Ziv said the victim told her that the last time he talked with W.C.L. was in

November 2010, which was significant because November 2010 was when the victim

first acknowledged to his mother that “William” had been sexually abusing him. She

observed that the Petitioner and W.C.L. both had the first name of “William.” When Dr.

Ziv asked the victim why he felt guilty, the victim asked to go outside and talk to his

lawyer, and when he returned, the victim said that his attorney told him he did not have to

talk to her about the Petitioner. Dr. Ziv stated that the change in the victim’s demeanor

was “so dramatic” that she called John Anderson and told him that she did not believe

that the Petitioner was guilty of sexually abusing the victim, even though the Petitioner

had been convicted. She said that while none of the things the victim told her about the

Petitioner matched the victim’s allegations, the victim’s account of his sexual interaction

with W.C.L., the timing of the victim’s breakup with W.C.L. in November 2010, and the

victim’s tearful confession that he had sex with W.C.L. did match the victim’s allegations

of sexual abuse. Dr. Ziv noted that when the victim acknowledged to his mother that

8

Although this witness is identified as Dr. “Zib” in the transcript, her report identifies her as Dr.

“Ziv,” and we will refer to her by this name.

- 21 -

“William” was sexually abusing him, his mother did not ask him to clarify which

“William” and just assumed that the “William” he identified was the Petitioner.

Dr. Ziv viewed the following documents in conducting her forensic psychiatric

evaluation of the Petitioner: the victim’s school records, the victim’s voluminous

psychiatric records, the 1500 pages of civil deposition testimony from the victim and his

mother, the civil deposition testimony from the Petitioner, the testimony from all of the

witnesses at the Petitioner’s criminal trial, the records concerning the victim’s mother’s

allegation that her father sexually assaulted the victim when the victim was four years

old, the police records and police interviews after the victim accused the Petitioner of

sexually abusing him, and the records related to the victim’s allegations that W.C.L.

sexually abused him.

Dr. Ziv said that she repeatedly reviewed the interview of W.C.L. by Detective

Mick of the Franklin Police Department regarding W.C.L.’s sexual contact with the

victim. During this interview, W.C.L. admitted that in 2010, he was having a sexual

relationship with the victim. Dr. Ziv stated that the criminal investigation into W.C.L. by

the Franklin Police Department began when the victim told his therapist that he had a

sexual relationship with W.C.L., and the therapist was required to report this relationship

to the police. During the Franklin Police Department’s investigation, the victim and

W.C.L. were interviewed, but W.C.L. was not prosecuted because the victim’s mother

did not wish to prosecute him. Dr. Ziv stated that no one connected the Franklin case

against W.C.L. with the criminal case against the Petitioner. She said that the sexual

interactions the victim told to detectives in Franklin about W.C.L. were the same sexual

interactions for which the victim accused the Petitioner. She noted that because the

Franklin case against W.C.L. was never connected to the Petitioner’s criminal case, the

officers investigating the allegations against the Petitioner just assumed that all of the

victim’s knowledge of sexual matters came from the Petitioner because they did not have

a “competing source of that information.”

She stated that the victim’s psychiatric records and forensic interviews made it

clear that no one ever confronted the victim about his “ever-changing stories” about what

happened with the Petitioner or ever referenced the fact that the victim had oral sex,

fondling, and anal sex with W.C.L. from the summer of 2010 to November 2010.

Dr. Ziv said that the victim was very familiar with sexual acts at a very young age.

She said that there was an incident in kindergarten when the victim touched the penis of

another boy in class. The victim also told Dr. Ziv about occasions in grade school when

he and another boy would “surreptitiously rub each other’s genitals over each other’s

clothes until they got caught.” Dr. Ziv said the victim’s mother admitted to a psychiatrist

that the victim had been viewing pornography since he was ten years old. During Dr.

- 22 -

Ziv’s interview with the victim, the victim disclosed that he knew he was homosexual

from a very young age and struggled with this knowledge because his mother believed

homosexuality was a sin. She explained that the victim’s psychiatric records showed that

the victim’s mother kicked the victim out of her house several times because of the

victim’s homosexuality. She said that over time, the victim began to “distance himself a

little bit from his mother’s reactions” to his sexuality, and that at that point in time, the

victim’s hospitalizations stopped and the victim stopped cutting himself and stopped

having suicidal thoughts.

Dr. Ziv’s report was admitted as an exhibit to the hearing. Dr. Ziv opined that the

victim was referring to W.C.L., not the Petitioner, when his mother confronted him about

his homosexuality in November 2010 and that neither his mother nor anyone else

investigated which “William” the victim had identified during this confrontation. She

noted that the victim’s mother was “violent” and “emotionally abusive” toward the victim

and that W.C.L.’s brother D.L. was the victim’s mother’s boyfriend. While she said that

the victim was “sexually mature,” he was not “worldly” and would have had a hard time

clarifying to his mother that W.C.L. was the “William” he identified as his sexual abuser

rather than the Petitioner.

Dr. Ziv stated that one of the main reasons children make a false report of sexual

abuse is a “fear of consequences.” She noted that the victim was “between a rock and a

hard place” because if he admitted that he was talking about W.C.L., then he would have

some degree of culpability in his mother’s eyes. Dr. Ziv said that the victim, as a twelve-

year-old boy, was in a difficult situation and that his mother made an assumption that the

“William” he identified was the Petitioner, rather than W.C.L., and that no one else ever

asked if there was another William or if there was another way for the victim to have

acquired this sexual knowledge. Dr. Ziv stated that “[m]ost importantly,” no one ever

confronted the victim about his “changing stories with respect to [the Petitioner].” She

asserted that the victim never told “the same story twice,” which was “the hallmark of a

non-credible witness.”

Dr. Ziv stated, “[A]s somebody who has reviewed over a thousand convicted sex

offenders, . . . I can say that [the Petitioner’s] behavior in no way, shape or form

conforms to the patterns of behavior of a child molester or a pedophile, even in [the

victim’s] accounting.” She explained that ninety percent of children who are sexually

assaulted are sexually assaulted by someone that they know and trust and there is a

grooming process for the victim that evolves over time. However, she said that with the

Petitioner, there was the “complete absence of the whole grooming process.” She

asserted that in the time period during which this alleged sexual abuse was occurring, the

Petitioner and his wife had just adopted a baby, and the baby was with him every time the

victim claimed the Petitioner had sexual contact with him. Dr. Ziv stated that although

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the Petitioner could have started spending more time with the victim after the victim’s

mother asked for his help when the victim broke a girls’ game system and wrote some

pornography on a garage door, the Petitioner continued to see the victim only through the

formalized Big Brothers Big Sisters Program where he saw the victim only a couple of

hours twice a month. Consequently, Dr. Ziv opined that the Petitioner’s “pattern of

behavior [wa]s completely inconsistent with the patterns of behavior of a child molester

or a pedophile.”

Dr. Ziv acknowledged that she was not licensed in Tennessee and had never

testified in Tennessee. She also acknowledged that while she concluded that the victim

had lied about the Petitioner’s sexual abuse of him, another forensic psychiatrist could

review the same information and reach a different conclusion regarding the victim’s

honesty about his allegations against the Petitioner. Nevertheless, Dr. Ziv insisted, “It

would be very challenging to review the volume of materials that I reviewed and . . .

come up with a different opinion[.]”

Dr. Ziv admitted that she had never met the victim’s mother, although she had

reviewed the statements made by the victim’s mother during the in-home service visits,

during her communications with the victim’s school, and during her interviews with the

victim’s therapist. She asserted that she “had [the victim’s mother’s] words over the

course of years.” Dr. Ziv stated that based on her review of the documentation in the

psychiatric records over a period of years, the victim’s mother was “physically and

verbally abusive” to the victim. She specifically noted that the victim’s mother had

called him a “f[----]t,” that the victim’s mother had said that she wished she had two of

the victim’s brother rather than the victim, and that the victim’s mother had refused to

take the victim to the hospital after he took an overdose of drugs.

Dr. Ziv admitted that other than the victim, she had not spoken with any other

individuals, including witnesses and services providers, who were involved in this case.

She stated that she had reviewed W.C.L.’s testimony at the Rule 412 hearing, even

though it was not listed in her report. Because she never interviewed W.C.L., Dr. Ziv

declined to say whether W.C.L. was credible. She did say that she would not take what

W.C.L. said about his sexual interactions with the victim “as gospel.”

Dr. Ziv opined that the Petitioner did not sexually abuse the victim. Although Dr.

Ziv reviewed the transcripts from the Petitioner’s criminal trial in order to prepare for the

victim’s forensic evaluation, she did not recall that the mother’s inability to accept the

victim’s homosexuality was explored during the defense’s cross-examination of the

victim and his mother. However, she acknowledged if the transcript showed that this

issue had been explored, she did not dispute it. Dr. Ziv admitted that she had not

reviewed the closing arguments from the criminal trial, wherein defense counsel had

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allegedly argued that the reason the Petitioner was identified as the perpetrator was

because the victim was scared of his abusive mother. Dr. Ziv stated that she read the

testimony provided by the twelve witnesses at trial, including the victim, his mother, and

the Petitioner. She also said that she read W.C.L.’s testimony from the hearing on the

Rule 412 motion.

Dr. Ziv reiterated that the Petitioner’s behavior was not that of a pedophile or child

molester. She said that in her “20-plus years” of experience, she had never seen a pattern

of sexual assault consistent with the Petitioner’s described behavior during the relevant

time period. Dr. Ziv acknowledged that she could not say that the Petitioner’s sexual

assault of the victim did not happen.

The Petitioner testified that he retained trial counsel and his other criminal defense

attorney to defend him in his criminal case. The Petitioner said he worked with his

criminal defense attorneys and understood that the defense theory was that W.C.L., who

also had the first name of “William,” was the individual who had sexual relations with

the victim and that the Petitioner had not sexually abused the victim because of his

excellent character.

The Petitioner said he attended the Rule 412 hearing and heard the testimony from

the victim, W.C.L., and W.C.L.’s brother, D.L.. He said the purpose of the Rule 412

hearing was to ask that the defense be allowed to introduce evidence at trial showing that

there was a preexisting relationship between the victim and W.C.L. and that when the

victim identified “William” as his sexual abuser in November 2010, he was referring to

W.C.L. and not the Petitioner. He said that the primary evidence his defense attorneys

wanted to introduce was the Franklin Police Department’s videotape of the interview

with W.C.L.. The Petitioner said that he was allowed to review this videotape with his

criminal defense attorneys in camera and that he was later given a copy of this videotape

prior to the Rule 412 hearing.

The Petitioner said that during the Rule 412 hearing, D.L., the victim, and W.C.L.

testified. The victim testified that he met W.C.L. in 2011 and that he had a sexual

relationship with W.C.L. in 2011. The Petitioner said that during this hearing his defense

attorneys never allowed him to testify. He also said that his attorneys never presented

any proof, other than from D.L., the victim, and W.C.L., to show that there was a sexual

relationship between W.C.L. and the victim around the time that the victim accused the

Petitioner of sexual abuse. The Petitioner said that in light of this limited evidence, the

trial court concluded that there was not enough proof for an exception to Rule 412. He

also said that despite the adverse ruling at the Rule 412 hearing, his defense attorneys did

not change their strategy at trial. While he acknowledged that his attorneys were able to

ask the victim at trial about whether he had a sexual relationship with W.C.L., he said the

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defense was “stuck” with the victim’s answer that he had first met and had a sexual

relationship with W.C.L. in 2011. He said his attorneys were precluded from establishing

that that the victim had been dishonest about the timing of his relationship with W.C.L.

because they were bound by the trial court’s ruling at the Rule 412 hearing.

The Petitioner explained that there were two types of mentors through the Big

Brothers Big Sisters Program—site-based mentors, who go to an after-school program

once a week and community-based mentors, who are allowed the pick up the child and

take them to community-related events. The Petitioner said that although he started off

as a site-based mentor for the victim, he began doing the community-based mentoring of

the victim on January 12, 2009, and then stopped having any contact with the victim on

June 29, 2010.

The Petitioner said he had prepared a chronological summary of his meetings with

the victim based on the information contained in the calendar in his Blackberry and that

his summary highlighted the limited amount of time he had spent with the victim. He

then detailed a series of events that he attended at the victim’s school, the victim’s home,

a science museum, a high school, a college, and an ice skating event sponsored by the

Big Brothers Big Sisters organization. He also said that there were three or four weeks

that he did not see the victim because the victim was very ill and several weeks that he

did not see the victim because the victim had a broken arm. The Petitioner also explained

that he and his wife were placed with a newborn who they brought home on October 5,

2009, which prevented him from seeing the victim the month of October. The Petitioner

said that between October and November 2009, his wife was home with the baby, and the

victim might have come to his home twice. He said the victim did not come to his home

in December 2009, and in January 2010, he would pick up the baby and then visit with

the victim.

The Petitioner said that in February 2010, his marriage became strained, and the

victim never visited his home again. He said that in May, he informed the victim’s

mother that he was getting a divorce and that he would be unable to see the victim as

often. He also told the victim’s mother about a golf program that he thought would be a

good fit for the victim, which took place on Tuesdays in June 2010. He said that on two

of these Tuesdays, he picked up the victim, and the remaining two Tuesdays, a fraternity

brother picked up the victim and took him to this program. At the end of each of these

golf programs, the victim’s mother picked up the victim. The Petitioner’s summary of

his meetings with the victim was admitted into evidence. He said that his defense

attorneys were aware that he had this summary that detailed his lack of opportunity to

abuse the victim.

- 26 -

The Petitioner said that his defense attorneys never talked to him about the

different ways to defend allegations of child sexual abuse. He said that his attorneys

never discussed the possibility of presenting a defense of lack of opportunity or alibi.

The Petitioner said that he now realized that no evidence was permitted to be introduced

regarding the “wrong William” being identified by the victim and that anything related to

this issue was limited to mere argument by his attorneys. The Petitioner also said that his

attorneys never talked to him about responding to the State’s bill of particulars.

The Petitioner said that he compared his summary with records from Big Brothers

Big Sisters and that his summary and the records from that organization were fairly

consistent. Although his attorneys were aware of the information contained in his

summary, it was not admitted at trial. However, he acknowledged that the records of his

meetings with the victim from the Big Brothers Big Sisters organization were admitted

into evidence.

The Petitioner said he was aware of the issues Kellar, his attorney in the civil case,

developed during the victim’s civil deposition, including the victim’s claim that the

Petitioner had chest hair and did not have any tattoos. The Petitioner explained that he

did not have hair on his chest because he had never been able to grow hair there. He also

stated that he had a brand on his left arm that was outlined with a tattoo that had the

numbers “one nine zero six” above it, that he had a tattoo of the continent of Africa with

his parents’ initials inside it on his left calf with the numbers “nine zero one” below it,

and that he had another brand of an “A” on his right calf. The Petitioner displayed his

tattoos to the court. Photographs of the Petitioner’s tattoos were admitted as a late-filed

exhibit to the hearing.

The Petitioner maintained that his defense attorneys were ineffective in failing to

call D.L. to testify at trial because D.L. had testified at the Rule 412 hearing that in

December 2010, he told the Metropolitan Nashville Police Department that his younger

brother, W.C.L., had had sexual relations with the victim. The Petitioner said that

although he had told his criminal defense attorneys to subpoena D.L., he was never

subpoenaed to testify at trial. The Petitioner also said it was ineffective for his defense

attorneys not to call W.C.L. to testify at trial because W.C.L. had told the Franklin Police

Department during his recorded interview that he had broken up with the victim before

Thanksgiving 2010.

The Petitioner also said it was ineffective for his defense attorneys not to call

Detective Tamara Mick, an officer with the Franklin Police Department, and Cynthia

Hastings, a DCS caseworker who was present during one of the interviews conducted by

the Franklin Police Department.

- 27 -

The Petitioner said he had wanted to obtain the cell phone records belonging to the

victim and W.C.L. after he learned that W.C.L. disclosed to the Franklin Police

Department that the victim had sent him a text message asking him to send a photograph

of his penis. The Petitioner later learned during the civil depositions that the victim and

W.C.L. had been communicating via cell phone before they ended their relationship prior

to Thanksgiving 2010. The Petitioner said that when he asked his criminal defense

attorneys to obtain these cell phone records, they told him there was insufficient time in

which to get them. He said that these cell phone records “can’t be retrieved” now

because the relevant cell phone companies only kept these records “for a certain amount

of time.” The Petitioner added, “[b]y the time [Kellar] asked for them [in the civil case],

we were unable to get them.”

The Petitioner asserted that there was no forensic or physical evidence that

incriminated him. He acknowledged that there was a controlled telephone conversation

but asserted that he had not confessed to sexually abusing the victim during that call.

Consequently, the Petitioner asserted that the evidence in his case came down to the

victim’s testimony against his own testimony.

The Petitioner acknowledged that Kellar, his attorney in the civil case, assisted his

criminal defense attorneys by working with them and providing them information. He

said he met with his criminal defense attorneys two or three times a month and believed

at the time that they “were doing the right thing” in order to effectively defend him.

However, after the Rule 412 hearing, the Petitioner recalled telling his criminal defense

attorneys, “We got our a[--]es kicked. We’ve got to do better.” Nevertheless, the

Petitioner said he kept his criminal defense attorneys and continued to give them

information.

The Petitioner said he did not recall reviewing the State’s evidence with his

attorneys prior to trial and did not know what the victim’s testimony would be until he

testified at the Petitioner’s trial. He said that he had watched the victim’s forensic

interview conducted by Nashville Children’s Alliance but that the victim never

mentioned that he first made the allegations against the Petitioner when the victim was

caught by his mother talking to a boy on the internet about the sexual contact the victim

and this boy had earlier that day.

The Petitioner acknowledged that when the victim testified at trial that he had

made the allegations against the Petitioner when his mother caught him talking to a boy

on the internet regarding their sexual contact, his defense attorneys cross-examined the

victim about this. However, the Petitioner denied that his attorneys vigorously cross-

examined the victim about this issue. He also said that while his defense attorneys cross-

examined the victim’s mother, he claimed they did not vigorously cross-examine her at

- 28 -

his trial. The Petitioner acknowledged that his attorneys were able to get the victim’s

mother to admit during her trial testimony that she had lied in the past about this case.

The Petitioner stated that during trial, he testified in own defense and presented his

father and his friend to testify regarding his good character. He said he also presented

evidence regarding his education and the organizations with which he was involved as

well as proof that he did not commit these offenses and that another “William” was

responsible. The Petitioner reiterated that there was never any proof presented at trial

showing the sexual relationship between W.C.L. and the victim around the time of the

allegations against him. He said that trial counsel conducted the closing argument for the

defense. The Petitioner said that although he reviewed the transcript of trial counsel’s

closing argument, he did not recall her emphasizing the inconsistencies in the victim’s

and his mother’s testimony.

The Petitioner said that upon reflection, he believed his defense should have

emphasized the limited amount of time he spent with the victim as a part of the Big

Brothers Big Sisters Program. He stated that if one compared his summary with the

victim’s time frame regarding the abuse, it would have been clear that he could not have

sexually abused the victim.

Trial counsel testified that she was retained by the Petitioner during the police

investigation and prior to the Petitioner’s indictment. She represented the Petitioner

throughout the criminal trial and through the motion for new trial. Trial counsel said that

the other attorney representing the Petitioner in the criminal case was retained before her

and that they represented the Petitioner together.

Trial counsel stated that she filed for discovery and “eventually got what the Court

allowed us to get.” She also said the defense filed for a bill of particulars and then filed a

motion to compel a more specific bill of particulars. In addition, the defense filed

subpoenas to obtain the victim’s medical information, hospital records, police reports,

school records, and records from Big Brothers Big Sisters and then filed motions to view

all of those documents because they were filed under seal. Trial counsel said that there

were some documents to which the defense never got access.

Trial counsel noted that because numerous documents were filed under seal, the

defense was not given copies of these documents and could only review them under the

supervision of the court clerk. She said she and the other criminal defense attorney

reviewed the hundreds of pages of documents in the clerk’s office and took notes so they

could explain them to the Petitioner during their meetings. Trial counsel gave the

Petitioner a DVD copy of the victim’s forensic interview with the Nashville Children’s

Alliance, and the Petitioner, who was released on bond, was able to view this interview

- 29 -

on his personal computer. The Petitioner was also able to review documents obtained

during discovery. Trial counsel said she and the other criminal defense attorney, as well

as Kellar, who was retained by the Petitioner in the civil case, met at the Petitioner’s

convenience and often set aside entire days to work together on the Petitioner’s case.

Trial counsel said the defense filed a Rule 412 motion, and the other criminal

defense attorney retained by the Petitioner examined the victim and W.C.L. at the Rule

412 hearing. She said the defense never had access to the victim or his mother prior to

the Rule 412 hearing but did get access to W.C.L. prior to the Rule 412 hearing after

having him served with a subpoena.

Trial counsel said that she believed they were ready for trial because they had

received all the information to which they had been granted access by the court. When

she first met the Petitioner and reviewed the allegations against him, she believed, based

on her thirty years’ experience as a “[p]rosecutor with [a] county . . . in Chicago,” a

federal prosecutor, and an attorney in private practice that the Petitioner had been falsely

accused. As a result, she began looking for proof of the false accusations. Trial counsel

said she was never given anything except broad charges, despite her efforts to obtain a

more specific description of the relevant dates through a bill of particulars. She stated

that everyone, including the Petitioner, knew that the State had no forensic evidence

against him. Trial counsel acknowledged that the defense was that the Petitioner did not

commit these offenses. She said they also presented evidence of the Petitioner’s good

character, even though she knew that good character was not a defense to sexual assault.

Trial counsel asserted that they could have “packed the courtroom with character

witnesses” but that they were limited by the wishes of the Petitioner and by the court.

She said that the Petitioner chose his character witnesses and that he could have chosen to

have more than two character witnesses testify on his behalf.

Trial counsel asserted that the Petitioner’s case was always going to be difficult to

defend because they never had access to the victim and because the victim’s mother was

“hostile.” She acknowledged the defense had an easier time getting access to W.C.L..

She said W.C.L. was subpoenaed and appeared at the Rule 412 hearing, and the trial

court allowed the defense to talk to W.C.L. briefly prior to this hearing because they had

never talked to him before. During their short meeting, W.C.L. admitted to the defense

that he and the victim had a sexual relationship and gave them a timeframe for the

relationship. However, during the Rule 412 hearing, W.C.L. became evasive when asked

whether he and the victim had sex and claimed that he was on drugs and could not

remember what happened. Trial counsel said that at the conclusion of the Rule 412

hearing, the court ruled that the defense could not present any evidence of the victim’s

past sexual experiences with W.C.L. at trial unless the victim denied having a sexual

- 30 -

relationship with W.C.L.. Despite the trial court’s unfavorable Rule 412 ruling, trial

counsel still argued in her closing that W.C.L. was the perpetrator in the case.

Trial counsel said she first learned about W.C.L. during her investigation and not

from the Petitioner. The defense prepared the Petitioner to testify that he did not sexually

assault the victim, but they were unable to prepare an alibi defense because the State

never provided any definite dates as to when the abuse allegedly occurred. Trial counsel

noted that although the victim claimed the abuse happened a few times, the victim was

only ever able to give one definitive date that the abuse occurred, and the defense

disproved that date. She also said that while the Petitioner gave the defense his summary

of the time he spent with the Petitioner, “it wasn’t enough to cover this one little time.”

She asserted that the trial court acquitted the Petitioner of some of the charges against

him because they were “just so blatantly wrong.”

Trial counsel stated that the defense did not call D.L., W.C.L.’s brother, because

he would have been only able to testify about W.C.L.’s sexual relationship with the

victim, which the defense was precluded from presenting based on the court’s Rule 412

ruling. She said she did not recall D.L. ever admitting that W.C.L. and the victim had a

sexual relationship until the Franklin Police Department began investigating the

allegations that W.C.L. had sexually abused the victim.

Trial counsel said the defense attempted to subpoena Detective Tamara Mick of

the Franklin Police Department for trial. However, she said that Detective Mick’s

testimony would have been about the investigation into allegations that W.C.L. sexually

abused the victim, which was “off-limits” pursuant to the Rule 412 hearing.

Trial counsel stated that she did not recall anything about Cynthia Hastings, other

than that Hastings may have been in the room when the victim or W.C.L. was being

interviewed by the Franklin Police Department. She noted that Hastings could not have

been called to testify because anything related to the Franklin Police Department’s

investigation was precluded by the court’s Rule 412 ruling unless the victim denied

having a sexual relationship with W.C.L., which he did not do.

Trial counsel said that she gave a passionate closing argument at trial because she

believed the Petitioner was not guilty. Following trial, the defense filed a motion for new

trial and another motion for judgment of acquittal.

Trial counsel said that the defense did everything that they could to get a favorable

result at the Petitioner’s trial and that they challenged the Rule 412 ruling because they

knew that the victim’s allegations were based “in his background, in his family, in his

environment.” They also knew as early as pre-kindergarten that the Petitioner was

- 31 -

“sexually acting out,” but they were precluded from presenting this evidence because of

the court’s Rule 412 ruling.

Trial counsel noted that the defense was unable to do the civil depositions prior to

trial because it was hindered by the judge’s rulings in the civil case. She noted that

because the civil case started so much earlier than the criminal case, they hoped that the

discovery and depositions in the civil case would be completed prior to the criminal trial.

However, this ultimately did not occur because the judge in the civil case stayed the

entire civil action until the criminal case was over. She stated, “I think it would have

been a more positive outcome [in the Petitioner’s criminal trial] if the jury had heard who

[the victim] and his mother were, what their history was. But we did not have it.”

Trial counsel stated that Dr. Ziv had access to over thirty documents, but during

the Petitioner’s criminal trial, the defense was unable to use this information because of

the rulings by the trial court in the criminal case and the rulings of the judge in the civil

case. She said that she and the other criminal defense attorney were not allowed to

present any evidence that W.C.L. was the person responsible for the crimes against the

victim.

Trial counsel said the defense filed a Rule 412 motion to be allowed to introduce

evidence regarding the sexual relationship between the victim and W.C.L.. At the Rule

412 hearing, the victim denied that he had a sexual relationship with W.C.L. in 2010, the

victim’s mother was evasive about whether such a relationship existed, and W.C.L.

claimed that he could not remember what happened because he was on drugs. Trial

counsel asserted that the trial court was left with a record that did not show that there was

a viable defense under the constitution that would require an exception to Rule 412. She

also said there were issues obtaining some of the records for the Rule 412 hearing. She

asserted that they had “to get a subpoena for everything” and that the subpoenaed records

were placed under seal, which necessitated motions to be able to view them and

appointments to review the records under the supervision of the clerk.

When trial counsel was asked whether the defense renewed the Rule 412 motion

when they obtained these records, trial counsel replied, “We didn’t renew the motion.

We filed—I don’t know if it was a renewal. We went back—I believe we went back to

court on the second time on the motion.” She added, “[W]e never had access that we

could use any records.” Trial counsel explained that the defense first discovered the

Franklin Police Department’s investigation into allegations that W.C.L. sexually

assaulted the victim when they subpoenaed the “Cumberland DHS” records . After

learning of these records, she spoke to a detective in Franklin about the substance of their

records, but this detective refused to provide these records to her without a subpoena.

Later, Kellar was able to subpoena the Franklin Police Department to obtain these

- 32 -

records. Trial counsel acknowledged that if the defense had been able to present the

records given to Dr. Ziv and Kellar, the outcome of the Rule 412 hearing and the trial

might have been different.

At the conclusion of the post-conviction hearing, the State informed the court that

the Petitioner’s other criminal defense attorney would not testify as a witness because he

and trial counsel worked side-by-side as co-counsel and he did not believe he could

provide “anything different or additional” to what trial counsel had offered. The State

then rested its case.

March 12, 2018 Evidentiary Hearing. At the beginning of this hearing, the State

objected to the Petitioner calling Donald Dawson to testify because the Petitioner’s stand-

alone issue of prosecutorial misconduct during closing arguments had been waived for

failure to raise it on direct appeal. The post-conviction court ruled that while it

understood the State’s objection and was familiar with the relevant case law, it would

allow Dawson to testify on this issue.

Donald Dawson, the Post-Conviction Defender for the State of Tennessee from

1996-2012, was accepted as an expert. He testified that in order to evaluate the

prosecutor’s closing arguments for the purpose of this post-conviction hearing, he had

reviewed the transcript of the closing arguments, a video recording of the closing

arguments, a video recording of the Petitioner’s trial testimony, and the trial court’s

December 3, 2012 order releasing certain documents that had been under seal to counsel

for both parties. He also reviewed the applicable case law and the American Bar

Association (ABA) standards for closing arguments.

Dawson stated that he examined the December 3, 2012 order because he was

concerned, after reviewing the closing arguments, about what the prosecutor would have

known or should have known after reviewing the documents referenced in the order,

particularly the Franklin Police Department’s report detailing the allegations that W.C.L.

sexually abused the victim. He said that the trial court’s December 3, 2012 order made it

clear that the Franklin Police Department report was provided to both the prosecution and

the defense.

After reviewing the aforementioned documents and video recordings, Dawson

prepared a two-column report for the purpose of evaluating the prosecutor’s closing

arguments in light of the ABA Standards, which was admitted into evidence. He then

identified the following five comments to which the Petitioner’s trial attorneys, in his

opinion, should have objected: (1) when the prosecutor sat in the witness stand during

closing argument and mocked the Petitioner; (2) when the prosecutor characterized the

Petitioner as a wolf in sheep’s clothing; (3) when the prosecutor improperly bolstered the

- 33 -

credibility of the victim by saying that the victim had been “honest”; (4) when the

prosecutor injected issues broader than guilt or innocence of the accused by insinuating

that they jury could heal the victim with their verdict; and (5) when the prosecutor drew

incorrect inferences from the evidence when she suggested to the jury that there was no

other way for a twelve-year-old boy to know about these sexual matters other than from

the Petitioner, even though she knew that evidence existed showing that the victim and

W.C.L. had sexual contact in 2010.

Dawson acknowledged that the defense objected to the prosecutor’s comment that

referenced a fact not in evidence, and when the trial court confirmed that the fact had not

been presented as evidence, the prosecutor repeated the fact again. He also noted that the

defense objected a second time when the prosecutor referenced the Petitioner’s

participation in a mentoring program that he had not participated in for the last three

years of the relevant period. When the trial court sustained that objection, the prosecutor

said that she was going to leave that issue for the jury. Dawson said the defense never

attempted to strike the prosecutor’s comment about leaving it to the jury. He also thought

it was “surprising” that trial counsel did not object to all the statements made by the

prosecutor in closing that Dawson believed were objectionable.

Dawson said the prosecutor erred in suggesting to the jury that the victim could

have acquired his sexual knowledge only from the Petitioner when the prosecutor knew

that there were documents and a recording showing that the victim and W.C.L. had

sexual contact before the victim made the allegations against the Petitioner. Citing

Berger v. United States, 295 U.S. 78, 88 (1935), the ABA Standards, and the rules of

professional conduct, Dawson asserted that a prosecutor is not permitted to ask the jury to

draw an inference that the prosecutor knows is not supported by the evidence. He said

that under these circumstances, it was defense counsels’ obligation to object and to ask

for a mistrial when the prosecutor made an argument designed to have the jury draw an

inference that was not supported by the record. Dawson also noted that the Petitioner’s

attorneys should have renewed their Rule 412 motion prior to trial so that the prosecutors

would have been precluded from drawing this inference at the Petitioner’s trial.

Dawson acknowledged it was possible that another lawyer could look at the

information he reviewed and disagree with his evaluation of the objectionable portions of

the prosecutor’s closing arguments. However, he asserted that “[they p]robably wouldn’t

totally disagree[.]” He acknowledged that he did not personally know the prosecutors on

the Petitioner’s case and had never spoken to them.

Dawson disagreed that the defense might have chosen not to object to the

prosecution’s erroneous inferences for a tactical reason, such as not drawing further

attention to the statement. He concluded that it was unreasonable for the defense not to

- 34 -

object and ask for a mistrial because the prosecution’s objectionable statements went “on

and on and on.” He also said that it was clear that the defense recognized that the

prosecutor’s comments were a problem because at the beginning of the defense’s closing,

trial counsel remarked that this was not “Saturday Night Live” when referencing the

prosecutor’s comments. Dawson said that it was not reasonable for the Petitioner’s

attorneys to believe that their closing was so strong that they did not have to object and

ask for a mistrial when the prosecutor suggested that the twelve-year-old victim could

have only acquired his sexual knowledge from the Petitioner. He noted that the

prosecutor’s assertion that there was no other way for the victim to have this sexual

knowledge unless he had been abused by the Petitioner was an extremely powerful

argument that would have “just resonate[d]” with a juror who had not yet made up his or

her mind about the case. Specifically, Dawson noted,

[T]he fact that [the defense attorneys] didn’t get up and say, objection,

Your Honor . . . And again, that they don’t try to say, you know, Your

Honor, there was a [Rule] 412 hearing [with a predecessor judge], we

couldn’t put this in, but it’s here. The prosecution knows it. We know it.

It’s an improper inference. We move for a mistrial. I mean, at some point,

you’ve got to stop it and not just let it go.

Dawson admitted that he did not know what the defense was thinking or why they

did not object more during the prosecution’s closing arguments; however, he insisted that

“any qualified or reasonable defense attorney would have objected” to these comments.

Dawson also asserted that in all his years of experience, he had never seen a prosecutor

sit in the witness chair and mock the defendant during closing arguments. He asserted

that the way the prosecutor moved while in the witness chair was objectionable:

The head movements, the eye movements. I mean, . . . it was clear that she

was trying to make the jury see things that, from the testimony that I saw of

[the Petitioner], were nothing more than any witness in this situation might

experience, and making the jury think that somehow these things indicate

that he has a dismissing attitude towards this whole thing, that he’s

pretending, again, to be something that he’s not. And when you put those

things together, . . . this is just a violation of the rules.

- 35 -

At the conclusion of the hearing and after hearing arguments from counsel, the

post-conviction court stated that it was going to review its notes and then issue a written

order. On March 21, 2018, the post-conviction court9 entered an order denying both the

petition for writ of error coram nobis and the petition for post-conviction relief. With

regard to the Petitioner’s request for coram nobis relief, the court made the following

findings of fact and conclusions of law:

The new evidence at issue in the instant petition involves the sworn

testimony of [the victim] and his mother, [S.B.], in a contemporaneously

filed and related civil case. It is believed by the Defendant that the sworn

testimony contained in the civil case is inconsistent with that which was

elicited at the criminal trial.

Specifically, the sworn deposition testimony of [the victim] in the

civil case is allegedly inconsistent with his criminal court trial testimony

regarding the relevant time period of his prior sexual relationship with

[W.C.L.]. Furthermore, the deposition testimony of [the victim’s] mother,

[S.B.], elicited varied answers regarding her perception of her son’s

awareness of sexual acts and the timing of [the victim’s] relationship with

[W.C.L.].

That information had already been ruled inadmissible during Judge

Blackburn’s Rule 412 hearing.

....

In this case, the judgment of the trial court was entered on November

12, 2013. The order of the court became final on December 12, 2013. The

statute of limitations began to run that day and expired one year later on

December 12, 2014. This second petition for Writ of Error Coram Nobis

was first filed on July 3, 2017 and amended on February 20, 2018—31

months and 38 [days] past the one[-]year deadline respectively.

The inquiry, however, does not end there. Pursuant to Harris, the

court may take due process into consideration when the petition is based on

newly discovered evidence of actual innocence. 301 S.W.3d at 145

(emphasis added).

9

Although we generally identify the lower court in coram nobis cases as the “trial court,” we will

refer to the lower court as the “post-conviction court” in this opinion because the Petitioner’s case

involves both post-conviction and error coram nobis issues.

- 36 -

These considerations stand for the principle that litigants must be

provided an opportunity for the presentation of claims at a meaningful time

and in a meaningful manner. Due process considerations that may toll the

one[-]year statute require a mixture of law and fact.

....

The Court recognizes that the Defendant has a high burden to

demonstrate “newly discovered evidence of actual innocence.” Harris at

145. It is the Court’s opinion that the Defendant failed to meet this burden.

While some of the evidence presented at this post-trial hearing could be

considered newly discovered, none of the evidence presented would

properly demonstrate actual innocence.

Harris v. State sets out factors a court should consider in determining

the timeliness of a writ of error coram nobis, which the Court will now

analyze. The first factor is for the court to determine when the statute of

limitations would normally have begun to run. As previously stated, the

trial court’s judgment became final on December 12, 2013. The one[-]year

statute of limitations period began that day and expired one year later on

December 12, 2014.

Next, the court should determine whether the grounds for relief arose

after the limitations period would have commenced. In the writ of error

coram nobis, the Defendant states that particular depositions testimony was

elicited from [the victim] and his mother, [S.B.], on August 25, 2014 and

July 22, 2014 respectively. See Defendant’s Amended Second Petition for

Writ of Error Coram Nobis at 3, filed Feb. 20, 2018. It is alleged that the

deposition testimony was inconsistent and contradictory to that from the

criminal court trial. The Court acknowledges that these grounds for relief

arose during the one[-]year limitations period. The Defendant also

discusses a forensic psych[iatrist]’s evaluation of [the victim], which

occurred on August 14, 2017. That evaluation occurred well outside of the

limitations period.

Finally, a court should determine if excluding those “later-arising”

grounds would deny the Defendant a reasonable opportunity to present his

claim.

....

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The allegations contained within the writ of error coram nobis are

substantially governed by Judge Blackburn’s previous Rule 412 [ruling]. It

was the ruling of the court that, unless [the victim] denied an existing

sexual relationship with W.C.L., the substantial inquiry into that line of

questioning would be prohibited. It would, therefore, require a complete

denial of [the victim] during sworn testimony to open the door to that line

of questioning.

The Defendant refers to the testimony of the forensic psychiatrist Dr.

Barbara Ziv as a source of significant doubt as to the validity of the

conviction. The entirety of the report prepared by Dr. Ziv is attached to the

Defendant’s amended petition. The petition does not take into account that

discovery in civil cases and in criminal cases is vastly different. A plaintiff

in a civil matter is subject to all discovery “reasonably calculated to lead to

the discovery of admissible evidence.” Tenn. R. Civ. P. 26.02. The

forensic exam of [the victim] was prepared for the related civil case. In

order for a defendant in a criminal case to have a similar forensic exam of a

victim, that defendant is required to establish “the most compelling of

reasons” for such an exam. State v. Gibson, 973 S.W.2d 231, 245 (Tenn.

Crim. App. 1997). Compelling reasons would include doubt of the victim’s

sanity or prior mental disorders. Even in such situations, a court should

consider ordering an examination “only if there is little or no corroboration

to support the charge [of sexual abuse].” Id.

The Court finds the forensic psychiatrist’s report prepared by Dr.

Barbara Ziv was produced well after the statute of limitations had run and

does not provide evidence of actual innocence. Excluding the report would

not deny the Defendant a reasonable opportunity to present his claim. The

report itself is not evidence of actual innocence. Had it been available at

trial, it would have been part of the jury’s weighing of the credibility of the

several witnesses who testified at trial. The Defendant has not

demonstrated that there may have been a different result if the testimony by

Dr. Ziv had been part of the Defendant’s evidence at the criminal trial.

Accordingly, the Defendant has not met his burden of showing that

“such [new] evidence may have resulted in a different judgment, had it

been presented at the trial.” T[enn.] C[ode] A[nn]. § 40-26-105. The Court

respectfully denies the writ of error coram nobis.

- 38 -

As relevant to the Petitioner’s request for post-conviction relief, the court

made the following findings and conclusions:

The Defendant has the burden of proving by clear and convincing

evidence that his counsel’s errors were so serious that he was deprived a

fair trial. No witness testified about or presented evidence of [the

Petitioner’s] attorneys’ serious errors in their representation. [The

Petitioner] presented no expert witness in the field of criminal defense to

testify as to the standard of representation in criminal defense work. The

witnesses presented by [the Petitioner] frequently spoke of his trial

attorneys in a favorable manner: [The Petitioner’s] attorneys argued

vigorously, in preparing for trial the attorneys accommodated [the

Petitioner’s] limited schedule, and endeavored to present additional

defenses following Judge Blackburn’s Rule 412 order.

The Court is required to “eliminate the distorting effects of hindsight

and evaluate the conduct from the perspective at the time.” Marr v. State,

2001 WL 844401 (Tenn. Ct. App. July 26, 2001) (citing Strickland at

689)). It appears to the Court that [the Petitioner’s] trial attorneys found

themselves in a situation where a previous evidentiary ruling prohibited

what they hoped would be their primary defense. They were required to

change their trial tactics and persevere. If one particular defense strategy

was ultimately unsuccessful, it does not, on its own, definitively show

unreasonable or ineffective representation. See Goad v. State, 938 S.W.2d

363, 369 (Tenn. 1996). A court defers to strategic and tactical choices of

counsel when they are informed choices. Id.

The Court finds that the Petitioner did not meet his burden of

showing that his defense counsel’s performance fell below an objective

standard and made errors so serious that it fell below the standard of

representation guaranteed by the Constitution. The Court also finds the

Petitioner has not carried his burden to show that defense counsel’s

performance prejudiced him and the errors were so serious as to deprive

him of a fair trial. Therefore, the Petitioner has failed to satisfy both of the

Strickland prongs, and the Court finds that the verdict of the criminal trial

in this matter was not the result of the ineffective assistance of [the

Petitioner’s] counsel.

- 39 -

Finally, regarding the Petitioner’s claim regarding the prosecutor’s improper

comments made during closing arguments, the court held the following:

Tennessee courts have held that a claim for relief based on prosecutorial

misconduct is not “based upon a constitutional right not recognized as

existing at the time of trial” or “the result of a state action violation of the

federal or state constitution.” The [Petitioner’s] failure to raise a claim of

prosecutorial misconduct during the direct appeal process is, therefore,

fatal. See Shifflett v. State, 2011 WL 2732357, at *FN1 (Tenn. Crim. App.

July 14, 2011)[;] McCarver v. State, 2010 WL 596344 at *4 (Tenn. Crim.

App. Feb. 19, 2010); Brewer v. State, 470 S.W.2d 47, 49 (Tenn. Crim. App.

1970).

Because the Petitioner failed to raise prosecutorial misconduct on

direct appeal, his attempt to raise that as a ground for relief is futile.

On April 18, 2018, the Petitioner filed a timely notice of appeal from the judgment

denying coram nobis relief and denying post-conviction relief.

ANALYSIS

I. Denial of Coram Nobis Relief. The Petitioner contends that the post-

conviction court erred in denying his petition for writ of error coram nobis. He describes

the newly discovered evidence as the following: (1) the sworn deposition testimony of

the victim and his mother from a contemporaneously filed and related civil case, which

he alleges is inconsistent with the testimony they gave at his criminal trial, and (2) the

report from Dr. Barbara Ziv, a forensic psychiatrist, which was entered as an exhibit

during the February 22, 2018 hearing. The State responds that because the petition for

writ of error coram nobis was untimely filed and because tolling of the statute of

limitations is not required, the coram nobis court did not err in denying the petition. We

agree with the State.

A petition for writ of error coram nobis is available to criminal defendants based

on subsequently or newly discovered evidence. Tenn. Code Ann. § 40-26-105(a), (b).

However, a writ of error coram nobis is an “extraordinary procedural remedy” that “fills

only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.

- 40 -

1999); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). Coram nobis

petitions are governed by Tennessee Code Annotated section 40-26-105, which provides:

The relief obtainable by this proceeding shall be confined to errors dehors

the record and to matters that were not or could not have been litigated on

the trial of the case, on a motion for a new trial, on appeal in the nature of a

writ of error, on writ of error, or in a habeas corpus proceeding. Upon a

showing by the defendant that the defendant was without fault in failing to

present certain evidence at the proper time, a writ of error coram nobis will

lie for subsequently or newly discovered evidence relating to matters which

were litigated at the trial if the judge determines that such evidence may

have resulted in a different judgment, had it been presented at the trial.

Tenn. Code Ann. § 40-26-105(b). The decision to grant or deny a petition for writ of

error coram nobis rests within the sound discretion of the trial court. State v. Hall, 461

S.W.3d 469, 496 (Tenn. 2015). If a petition for coram nobis relief is granted, the

judgment of conviction will be set aside and a new trial will be granted. Payne v. State,

493 S.W.3d 478, 485 (Tenn. 2016).

Petitions for writ of error coram nobis must satisfy rigorous standards regarding

specificity:

The motion or petition must be in writing and (1) must describe with

particularity the nature and substance of the newly discovered evidence and

(2) must demonstrate that this evidence qualifies as “newly discovered

evidence.” In order to be considered “newly discovered evidence,” the

proffered evidence must be (a) evidence of facts existing, but not yet

ascertained, at the time of the original trial, (b) admissible, and (c) credible.

In addition to describing the form and substance of the evidence and

demonstrating that it qualifies as “newly discovered evidence,” the prisoner

must also demonstrate with particularity (3) why the newly discovered

evidence could not have been discovered in a more timely manner with the

exercise of reasonable diligence; and (4) how the newly discovered

evidence, had it been admitted at trial, may have resulted in a different

judgment.

- 41 -

Harris v. State, 301 S.W.3d 141, 152 (Tenn. 2010) (Koch, J., concurring in part and

concurring in result) (footnotes omitted), overruled on other grounds by Nunley v. State,

552 S.W.3d 800 (Tenn. 2018).

Summary dismissal, without discovery or an evidentiary hearing, is permissible

when a petition is insufficient on its face. Nunley, 552 S.W.3d at 829. As the Nunley

court reiterated:

“The sufficiency of the contents of a petition for writ of error coram

nobis filed pursuant to T[enn.] C[ode] A[nn]. § 40-26-105 is of utmost

importance. Judges anticipate that the petition itself embodies the best case

the petitioner has for relief from the challenged judgment. Thus, the fate of

the petitioner’s case rests on the ability of the petition to demonstrate that

the petitioner is entitled to the extraordinary relief that the writ provides.”

Id. at 826 (quoting Harris, 301 S.W.3d at 150 (Koch, J., concurring in part and concurring

in result)).

In addition to the requirements regarding specificity, petitions for writ of error

coram nobis are subject to a one-year statute of limitations. Tenn. Code Ann. § 27-7-103.

The statute of limitations is calculated from the date the judgment of the trial court

becomes final, either thirty days after its entry in the trial court if no post-trial motions

are filed or upon entry of an order disposing of a timely, post-trial motion. Payne, 493

S.W.3d at 484; Mixon, 983 S.W.2d at 670.

We agree with the State that the Petitioner’s coram nobis petition is untimely.

Here, the jury rendered their guilty verdicts against the Petitioner on July 12, 2013.

Before the judgments of conviction for these offenses were entered, the Petitioner filed a

motion for a renewed judgment of acquittal as well as a motion for new trial, both of

which the trial court denied by minute entry on September 23, 2013. Thereafter, on

November 12, 2013, the trial court entered judgments of convictions for these offenses,

which became final on December 12, 2013. Therefore, giving the Petitioner the benefit

of the date the final judgments of conviction were entered, the Petitioner had until

December 12, 2014, to file his petition for writ of error coram nobis. Nevertheless, the

record shows the Petitioner did not file his petition for writ of coram nobis in this case

until July 3, 2017, more than two and a half years after the limitations period expired.

Because the coram nobis petition in this case was untimely, we must next consider

whether the Petitioner has established that due process concerns require tolling of the

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one-year statute of limitations. Workman v. State, 41 S.W.3d 100, 101-02 (Tenn. 2001).

Due process requires the tolling of a statute of limitations period when a petitioner would

otherwise be denied “‘an opportunity for the presentation of claims at a meaningful time

and in a meaningful manner.’” Id. at 102 (quoting Burford v. State, 845 S.W.2d 204, 208

(Tenn. 1992)).

Given the extraordinary nature of the writ, petitioners must plead specific facts

showing why they are entitled to equitable tolling of the statute of limitations. Id. If the

petition for coram nobis relief fails to show on its face that it is filed within the one-year

statute of limitations, the petition must set forth with particularity facts showing that the

petitioner is entitled to equitable tolling:

“To be entitled to equitable tolling, a prisoner must demonstrate with

particularity in the petition: (1) that the ground or grounds upon which the

prisoner is seeking relief are “later arising” grounds, that is grounds that

arose after the point in time when the applicable statute of limitations

normally would have started to run; [and] (2) that, based on the facts of the

case, the strict application of the statute of limitations would effectively

deny the prisoner a reasonable opportunity to present his or her claims . . . .

A prisoner is not entitled to equitable tolling to pursue a patently non-

meritorious ground for relief.”

Nunley, 552 S.W.3d at 829 (quoting Harris, 301 S.W.3d at 153 (Koch, J., concurring in

part and concurring in result) (footnotes omitted)). We note that “[w]hether due process

considerations require tolling of a statute of limitations is a mixed question of law and

fact, which we review de novo with no presumption of correctness.” Harris, 301 S.W.3d

at 145 (citing Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006)).

“If a petition for a writ of error coram nobis fails to show on its face either that it

has been timely filed in accordance with Tennessee Code section 27-7-103 or specific

facts showing why the petitioner is entitled to equitable tolling of the statute of

limitations, the trial court is within its discretion to summarily dismiss it.” Nunley, 552

S.W.3d at 829 (citing Harris, 301 S.W.3d at 153) (Koch, J., concurring in part and

concurring in result)). The trial court is not required to conduct an evidentiary hearing

prior to dismissing a coram nobis petition if the petition “‘fails to meet the necessary

prerequisites for granting coram nobis relief.’” Id. (quoting Harris, 301 S.W.3d at 153)

(Koch, J., concurring in part and concurring in result)). Moreover, “‘[i]f the averments in

the petition are insufficient to warrant relief, the petition may be dismissed’ prior to any

response from the state and without a hearing.” Id. (quoting Harris, 301 S.W.3d at 153)

- 43 -

(Koch, J., concurring in part and concurring in result)). After considering the applicable

law, we conclude that the court could have summarily dismissed the petition for writ of

error coram nobis prior to the evidentiary hearings because the petition was untimely and

the initial and amended petitions failed to sufficiently explain why the Petitioner was

entitled to equitable tolling of the statute of limitations. See id.

Moreover, after considering the substance of the February 22, 2018 and March 12,

2018 hearings, we conclude that the Petitioner failed to present any information at these

hearings showing that he is entitled to equitable tolling of the one-year statute of

limitations. Although the State’s response to the coram nobis petition clearly stated that

the petition was untimely and that equitable tolling did not apply, our review of the

record shows that the Petitioner has never asserted, in his petitions, in his arguments

before the post-conviction court during the aforementioned hearings, or in his appellate

brief that he is entitled to equitable tolling of the one-year statute of limitations for coram

nobis claims. Here, the Petitioner has altogether failed to demonstrate “(1) that the

ground or grounds upon which the prisoner is seeking relief are ‘later arising’ grounds,

that is grounds that arose after the point in time when the applicable statute of limitations

normally would have started to run; [and] (2) that, based on the facts of the case, the strict

application of the statute of limitations would effectively deny the prisoner a reasonable

opportunity to present his or her claims . . . .” Id. at 829. Because the record shows that

petition is not timely and that the Petitioner has failed to demonstrate that he is entitled to

relief from the statute of limitations, our “inquiry ends.” Id. at 831. Accordingly, the

Petitioner is not entitled to relief on this issue.

II. Denial of Post-Conviction Relief. The Petitioner also contends that he is

entitled to post-conviction relief because his defense attorneys were ineffective in failing

to develop “a complete theory of defense” following the trial court’s extremely

unfavorable ruling on his Rule 412 motion, which precluded him from proving his

innocence by presenting proof that W.C.L. was the perpetrator in this case. The

Petitioner notes that the agreed-upon defense strategy, prior to the court’s Rule 412

ruling, was that the victim made false allegations of sexual abuse against him because he

was in a sexual relationship with W.C.L. and the victim could not, or would not, retract

the allegations because he feared his mother’s abuse. The Petitioner asserts that the

victim’s false accusations against him arose when the victim’s mother asked the victim if

someone had been abusing him, and the victim acknowledged that “William” was the

person responsible for the abuse. The Petitioner emphasizes that both he and W.C.L.

have the first name of “William.”

The Petitioner claims that, following the trial court’s extremely unfavorable ruling

on his Rule 412 motion, his attorneys should have investigated the victim’s false

statement that he first met W.C.L. in 2011, should have renewed the Rule 412 motion

- 44 -

after receiving documents showing that the victim and W.C.L. had sexual contact in

2010, and should have obtained a timely forensic psychiatric examination of the victim

or, at a minimum, should have retained a forensic psychiatrist to review and summarize

the available records to show the victim’s untrustworthiness. Specifically, the Petitioner

asserts that his attorneys were ineffective (1) in failing to obtain and preserve cell phone

records showing that the victim and W.C.L. were communicating in 2010, (2) in failing

to call W.C.L. and Detective Mick at trial for the purpose of impeaching the victim’s trial

testimony that he did not meet W.C.L. until 2011, which was after the victim alleged that

the Petitioner abused him; (3) in failing to renew the Rule 412 motion, (4) in failing to

consult or call a forensic psychiatrist in this case, and (5) in failing to object and ask for a

mistrial in response to the prosecutor’s improper comments during closing arguments.

Post-conviction relief is only warranted when a petitioner establishes that his or

her conviction or sentence is void or voidable because of an abridgement of a

constitutional right. Tenn. Code Ann. § 40-30-103. The Tennessee Supreme Court has

held:

A post-conviction court’s findings of fact are conclusive on appeal

unless the evidence preponderates otherwise. When reviewing factual

issues, the appellate court will not re-weigh or re-evaluate the evidence;

moreover, factual questions involving the credibility of witnesses or the

weight of their testimony are matters for the trial court to resolve. The

appellate court’s review of a legal issue, or of a mixed question of law or

fact such as a claim of ineffective assistance of counsel, is de novo with no

presumption of correctness.

Vaughn, 202 S.W.3d at 115 (internal citations and quotation marks omitted); see Felts v.

State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 303 S.W.3d 674, 679 (Tenn.

2010). A post-conviction petitioner has the burden of proving the factual allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Tenn. Sup. Ct. R. 28, §

8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is

considered clear and convincing when there is no serious or substantial doubt about the

accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn.

2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d

240, 245 (Tenn. Crim. App. 1998).

In order to prevail on an ineffective assistance of counsel claim, the petitioner

must establish that (1) his lawyer’s performance was deficient and (2) the deficient

performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,

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523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).

“Because a petitioner must establish both prongs of the test, a failure to prove either

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

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

A petitioner successfully demonstrates deficient performance when the petitioner

establishes that his attorney’s conduct fell “below an objective standard of reasonableness

under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688;

Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the

petitioner establishes “‘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. at 370 (quoting

Strickland, 466 U.S. at 694). The key inquiry regarding the prejudice prong is “‘whether

counsel’s deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.’” Kendrick v. State, 454 S.W.3d 450, 458 (Tenn. 2015) (quoting

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). “Representation is constitutionally

ineffective only if it ‘so undermined the proper functioning of the adversarial process’

that the defendant was denied a fair trial.” Harrington v. Richter, 562 U.S. 86, 110 (2011)

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

A. Failure to Obtain and Preserve Cell Phone Records. The Petitioner argues

that his attorneys were ineffective in failing to obtain and preserve the victim’s and

W.C.L.’s cell phone records. He claims that these cell phone records, which would have

shown that the victim and W.C.L. had been communicating in 2010, rather than 2011,

were available early in his case and that his attorneys’ failure to obtain them was both

deficient and prejudicial. The State counters that the Petitioner, in failing to present these

cell phone records at the post-conviction hearing, failed to establish that he was

prejudiced by counsels’ failure to obtain these records.

The Petitioner asserts that prior to the return of the indictment, he informed his

attorneys that they needed to obtain these cell phone records. He also says that following

the trial court’s unfavorable Rule 412 ruling, he repeated his request for counsel to obtain

these cell phone records for the purpose of showing that the victim and W.C.L. knew

each other in 2010, but his attorneys informed him that there was insufficient time to

obtain these records prior to trial. He also notes that following his conviction, Gary

Kellar, his attorney in the civil case, sought to obtain these cell phone records but was

unable to acquire them because the cell phone provider had destroyed them.

To support his claim regarding the existence of these records, the Petitioner

references W.C.L.’s November 9, 2011 interview with Detective Mick of the Franklin

Police Department concerning the victim’s allegations that W.C.L. forced him to have

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anal sex. During this interview, W.C.L. told Detective Mick that the victim texted him in

2010 asking him to send a picture of his penis. The Petitioner also notes that W.C.L.

similarly testified at the Rule 412 hearing about the victim texting him with this request.

The Petitioner argues that these cell phone records could have been used to

impeach the victim’s trial testimony that he met W.C.L. in 2011, after he alleged that the

Petitioner abused him. While he acknowledges that the substance of the text messages,

i.e. the victim’s request for W.C.L. to send him a picture of his penis, “may have been on

the fringes of the trial court’s [Rule] 412 ruling,” he nevertheless contends that proof that

the victim and W.C.L. exchanged text messages in 2010 would not have violated the

court’s ruling.

Initially, we recognize that the Petitioner failed to present the cell phone records or

alleged text messages at the post-conviction hearing. Cf. Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel failed to

discover, interview, or present witnesses in support of his defense, these witnesses should

be presented by the petitioner at the evidentiary hearing.”). However, both the Petitioner

and Kellar testified at the post-conviction hearing that these cell phone records were no

longer available because the cell phone companies involved only kept these records for a

limited period of time. After reviewing the record, it is apparent that establishing that the

sexual contact between the victim and W.C.L. occurred in 2010 was the linchpin of not

only the Petitioner’s Rule 412 motion but also his defense that W.C.L. was responsible

for the offenses described in the indictment, rather than the Petitioner. This was an

extremely strong defense under the particular facts of this case, and the defense attorneys’

failure to competently pursue this defense by failing to obtain and preserve these cell

phone records fell below the objective standard of reasonableness under the prevailing

professional norms for criminal defense attorneys. See Strickland, 466 U.S. at 687-88.

Accordingly, given the particular circumstances present in this case, we conclude that

defense counsels’ failure to make any attempt to obtain these cell phone records, either

before or after the Rule 412 hearing, was deficient. Nevertheless, we conclude that the

Petitioner has failed to establish he was prejudiced by his defense attorneys’ failure to

obtain and preserve these cell phone records. At the post-conviction hearing, the

Petitioner not only failed to present these cell phone records but also failed to show that

these cell phone records were still in existence when the defense first learned of the

sexual contact between the victim and W.C.L, which triggered the need for these records.

Therefore, because the Petitioner has failed to establish that he was prejudiced by

counsels’ failure to obtain and preserve these records, he is not entitled to relief on this

issue.

B. Failure to Call W.C.L and Detective Mick to Testify at Trial. The

Petitioner argues that his defense attorneys were also ineffective in failing to call W.C.L.,

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and alternatively Detective Mick, to impeach the victim’s trial testimony that he never

met W.C.L. until 2011. The Petitioner asserts that during a November 9, 2011 interview,

W.C.L. told Detective Mick that his sexual contact with the victim, which lasted four to

five months, ended when W.C.L. began dating another male in November 2010. In light

of this evidence, the Petitioner claims that trial counsel could have called W.C.L. to

impeach the victim’s false testimony that he did not meet W.C.L. until 2011 and could

have presented this testimony without violating the court’s Rule 412 ruling, which

precluded the defense from using extrinsic evidence to prove whether or when the sexual

contact between the victim and W.C.L. occurred. He also claims, citing State v. Dotson,

254 S.W.3d 378, 392 (Tenn. 2008) and Tenn. R. Evid. 804, that if W.C.L. had a

“memory lapse” or asserted “the right to remain silent” as to when he met the victim, the

defense could have called Detective Mick to establish the exact date when W.C.L. met

the victim. In response, the State asserts that the Petitioner cannot establish this claim

because he failed to call W.C.L. or Detective Mick at the post-conviction hearing.

In its order granting in part and denying in part the defense’s Rule 412 motion, the

trial court made the following ruling regarding the defense’s need to present evidence

pursuant to due process:

The defense argued that evidence regarding the Victim’s prior sexual

relationship with [W.C.L.] is relevant because regardless of the

contradicting testimony as to when the sexual relationship may have

occurred, it is clear it falls within the 2007-2010 time frame alleged in the

indictment.

....

[T]he Court finds it permissible for the defense to inquire in limited fashion

about the Victim’s prior sexual relationship with [W.C.L. (such dates that it

occurred, how long the sexual relationship lasted, etc.) during the cross-

examination of the Victim. Pursuant to Rule 608, specific instances of

conduct may be used to impeach a witness during cross-examination if the

conduct is probative of the witness’s character for truthfulness or

untruthfulness. If, however, the witness denies the conduct, the party

proferring the evidence must be satisfied with that response and may not

seek to prove the conduct by extrinsic evidence. Tenn. R. Evid. 608(b);

State v. Shepherd, 862 S.W.2d 557 (Tenn. Crim. App. 1992). That is,

while the Court has found the requirements of Rule 608 have been satisfied,

and the defense [can] question the Victim about his previous relationship

with [W.C.L.], the defense is not able to introduce any extrinsic testimony

or evidence as to the issue, including but not limited to the testimony of

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[W.C.L.] or statements from his forensic interview[ (Ex. 3), the cross-

examination of [S.B., the victim’s mother,], the testimony of Detective

Mick, or the Franklin Police Department record (Ex. 4).

As we recognized in the previous section, it was vital for the defense to prove that

the sexual contact between the victim and W.C.L. took place in 2010, rather than 2011, in

order to convince the jury that W.C.L. was responsible for the sexual offenses described

in the indictment. The Rule 412 ruling precluded the use of extrinsic evidence regarding

the victim’s sexual contact with W.C.L., but it did not preclude the use of extrinsic proof

to show when the victim first met W.C.L. The confines of the Rule 412 ruling did not

restrict the defense’s ability to impeach the victim’s testimony that he never met W.C.L.

until 2011, an assertion that was wholly at odds with W.C.L.’s November 9, 2011

interview with Detective Mick. Although the Rule 412 ruling prevented the defense from

presenting extrinsic evidence that the victim’s sexual contact with W.C.L. took place in

2010, before the victim alleged that the Petitioner had sexually abused him, the defense

nevertheless argued to the jury in its closing that W.C.L. was the one responsible for

committing the offenses in the indictment, rather than the Petitioner. Because this was

one of the strongest defenses available to the Petitioner at trial, we conclude that the

Petitioner’s defense attorneys were deficient in failing to present W.C.L. and/or Detective

Mick to show that the victim met W.C.L. in 2009 or 2010, rather than in 2011, after the

allegations against the Petitioner arose. This evidence would have corroborated the

defense’s argument that W.C.L. was the perpetrator in this case, rather than the

Petitioner.

However, determining whether the failure to present W.C.L. and/or Detective

Mick was prejudicial is a much closer issue. Clearly, the Petitioner failed to present

either W.C.L. or Detective Mick at the post-conviction hearing. This court has concluded

that “[w]hen a petitioner contends that trial counsel failed to discover, interview, or

present witnesses in support of his defense, these witnesses should be presented by the

petitioner at the evidentiary hearing.” Black, 794 S.W.2d at 757. The presentation of the

witness at the post-conviction hearing is typically the only way for the petitioner to

establish:

(a) a material witness existed and the witness could have been discovered

but for counsel’s neglect in his investigation of the case, (b) a known

witness was not interviewed, (c) the failure to discover or interview a

witness inured to his prejudice, or (d) the failure to have a known witness

present or call the witness to the stand resulted in the denial of critical

evidence which inured to the prejudice of the petitioner.

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Id. Neither the post-conviction court nor this court may speculate on “what a witness’s

testimony might have been if introduced by defense counsel.” Id. Although the

Petitioner asserts that his defense attorneys should have presented W.C.L. and/or

Detective Mick to impeach the victim’s trial testimony that he never met W.C.L. until

2011, the Petitioner did not have these individuals testify at the post-conviction hearing.

Presenting these witnesses’ testimony at the post-conviction hearing would have

eliminated the need to speculate on the impeachment value of these witnesses.

Moreover, even though W.C.L.’s testimony from the Rule 412 hearing, the November 9,

2011 interview of W.C.L. by Detective Mick, and at least some of Detective Mick’s

police reports associated with that interview are in the record, we are not convinced that

proof that the victim and W.C.L. met in 2010 would have been enough to change the

outcome of the Petitioner’s trial in light of the trial court’s Rule 412 ruling. Because the

Petitioner has failed to show that trial counsel’s performance to present W.C.L. or

Detective Mick for impeachment purposes was prejudicial to this case, he is not entitled

to relief.

C. Failure to Renew Rule 412 Motion. The Petitioner contends that his defense

attorneys were ineffective in failing to renew the Rule 412 motion upon receiving

relevant and material evidence showing that the victim and W.C.L. were engaged in a

sexual relationship in 2010. He notes that in the December 3, 2012 order, the trial court

released certain records that had been filed under seal before Judge Watkins recused

himself from the case. The records released pursuant to this order included (1) the DCS

records regarding the victim’s allegations against the Petitioner and “another accused,”

presumably W.C.L., and (2) a December 16, 2011 investigative summary by Detective

Mick of the Franklin Police Department, presumably concerning the victim’s allegations

that W.C.L. had sexually abused him. The Petitioner notes that the December 3, 2012

order states that the court “shall hold a [Rule] 412 hearing to determine what specific

information and documents are admissible at trial” and that “[t]he 412 hearing is

scheduled for Tuesday, February 19, 2013, at 9:00 a.m.”

The Petitioner asserts that when trial counsel was asked at the post-conviction

hearing why the defense did not present the DCS records and Detective Mick’s

investigative report during the Rule 412 hearing to prove that W.C.L.’s contact with the

victim occurred in 2010, she replied that the defense had not received those records in

time for the Rule 412 hearing.

The Petitioner then asserts that “[r]egardless of when the recorded proof of the

specific incidents of sexual conduct between [the victim] and [W.C.L.] came into

possession” of the defense, his attorneys “did not renew [Rule] 412 motion” seeking

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admissibility of this evidence in order to allow the Petitioner to present a “complete

defense.” He also contends that his defense attorneys missed an opportunity to introduce

evidence of W.C.L.’s sexual contact with the victim in 2010 under Tennessee Rule of

Evidence 412(c)(4)(ii) as proof of specific incidents of sexual conduct offered for the

purpose of showing the victim’s knowledge of sexual matters. The Petitioner asserts that

proof of specific instances of sexual conduct between W.C.L. and the victim that

occurred prior to the accusations against the Petitioner served to rebut the prosecutor’s

closing argument to the jury that the victim must have learned about sexual activity from

the Petitioner. The Petitioner argues that “with proof of specific instances of sexual

conduct between [the victim] and [W.C.L.] in 2010 recorded in government records—and

the subpoena power to produce the witnesses with [the] knowledge identified in the

records,” his defense attorneys were ineffective in failing to renew the Rule 412 motion.

He adds that revisiting the Rule 412 motion with this proof “was critical to provide a

defense as guaranteed under the Tennessee and the United States Constitution” and was

necessary “to explain how [the] 12[-]year[-]old [victim] had knowledge of sexual

matters.” The State counters that the Petitioner failed to prove by clear and convincing

evidence that his defense attorneys failed to renew the Rule 412 motion and that but for

this alleged deficiency, the trial court would have admitted the records.

After reviewing the record from trial, we note that while the Petitioner’s defense

attorneys did unsuccessfully renew the Rule 412 motion during trial for the purpose of

seeking admission of school records showing that the victim, at four years old, had sexual

contact with another student, the defense attorneys never renewed the Rule 412 motion to

seek admission of evidence of specific instances of sexual conduct between the victim

and W.C.L. that occurred in 2010. As we previously recognized, the Petitioner filed a

Rule 412 motion requesting permission to introduce proof regarding the victim’s sexual

contact with W.C.L. during the period covered by the indictment. The Petitioner wanted

to present this evidence because it tended to show that W.C.L. committed the offenses in

the indictment, rather than the Petitioner.

Tennessee’s rape shield rule, which is found in Tennessee Rule of Evidence 412,

“recognizes that, despite the embarrassing nature of the proof, sometimes the accused can

only have a fair trial if permitted to introduce evidence of the alleged victim’s sexual

history.” Tenn. R. Evid. 412, Advisory Comm’n Cmts. (1991). Rule 412’s “purpose is

to exclude all evidence regarding the complainant’s prior sexual behavior unless the

procedural protocol is followed and the evidence conforms to the specifications of the

Rule.” State v. Brown, 29 S.W.3d 427, 430 (Tenn. 2000).

The provisions of Rule 412 applicable to the evidence proffered in this case

provide in pertinent part:

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(c) Specific Instances of Conduct. Evidence of specific instances of a

victim’s sexual behavior is inadmissible unless admitted in accordance with

the procedures in subdivision (d) of this rule, and the evidence is:

(1) Required by the Tennessee or United States Constitution, or

....

(4) If the sexual behavior was with persons other than the accused,

....

(ii) to prove or explain the source of semen, injury, disease, or knowledge

of sexual matters[.]

Tenn. R. Evid. 412(c)(1), (4)(ii).

At the very beginning of the Rule 412 hearing, the trial court ruled that the

February 2003 incident involving sexual contact between the victim, at age four, and

another child was “irrelevant to the instant case” and that the Vanderbilt Medical

Records, which showed the victim’s knowledge of sexual matters based on homosexual

pornography and sexual relationships with male peers were “extrinsic records not

admissible at trial.” Accordingly, the Petitioner only sought permission to introduce the

following proof: “Evidence of [of the alleged victim’s] Sexual Conduct with [W.C.L.]

offered pursuant to Rule 412(c)(1) and (4)[.]” While defense counsel initially argued that

this evidence should be admitted pursuant to the confrontation clause for the purpose of

cross-examining the victim at trial regarding his sexual contact with W.C.L., the

transcript from the Rule 412 hearings makes it clear that the defense also sought

admission of this evidence pursuant to his right to present a defense, which includes the

right to present witnesses in one’s own behalf. See Brown, 29 S.W.3d at 431 (citing

Chambers v. Mississippi, 410 U.S. 284, 294 (1973); State v. Sheline, 955 S.W.2d 42, 47

(Tenn. 1997)).

At the Rule 412 hearings, the Petitioner presented the testimony of W.C.L. and the

recorded interview of W.C.L. conducted by DCS and the Franklin Police Department.

Although W.C.L. testified at the Rule 412 hearing that he could not remember when his

sexual contact with the victim occurred, W.C.L. made the following statements during his

recorded interview: (1) that he and the victim had sexual contact over a period of four to

five months and that all of his sexual contact with the victim ended prior to November

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2010, and (2) that his sexual contact with the victim ended because W.C.L. had wanted to

date another male prior to November 2010 and that W.C.L. had subsequently dated two

other male peers in January 2011 and February 2011.

Defense counsel argued that he sought to present W.C.L.’s testimony and

W.C.L.’s recorded interview to show that W.C.L. committed the acts described in the

indictment, rather than the Petitioner. Because the intended purpose of the admission of

this evidence comported with Rule 412(c)(1) and (c)(4)(ii) and the probative value of the

evidence outweighed any unfair prejudice to the complainant, we conclude that the

proffered evidence satisfied the threshold admissibility requirements of Rule 412. See id.

at 431.

Although Brown acknowledged that the right to present witnesses was not

absolute, the procedural and evidentiary rules that limit this right may not be applied to

defeat the ends of justice:

Although “[t]he right to present witnesses is of critical importance

. . . it is not absolute. In appropriate cases, the right must yield to other

legitimate interests in the criminal trial process.” Chambers, 410 U.S at

295, 93 S. Ct. at 1046. Specifically, “[i]n the exercise of this right, the

accused, as is required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in

the ascertainment of guilt and innocence.” Id. at 302, 93 S. Ct. at 1049.

However, these procedural and evidentiary rules of exclusion “may not be

applied mechanistically to defeat the ends of justice.” Id. “Such rules do

not abridge an accused’s right to present a defense so long as they are not

‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”

United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 1264, 140

L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S. Ct.

2704, 2711, 97 L.Ed.2d 37 (1987)).

Id. at 432-33. The Brown court then noted that the constitutional right to present a

defense had been held to “trump” the rule against hearsay and as well as several rules of

state and federal rules of procedure and evidence, including rape shield statutes. Id. at

433. It concluded that “[t]he facts of each case must be considered carefully to determine

whether the constitutional right to present a defense has been violated by the exclusion of

evidence” and that “[g]enerally, the analysis should consider whether: (1) the excluded

evidence is critical to the defense; (2) the evidence bears sufficient indicia of reliability;

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and (3) the interest supporting exclusion of the evidence is substantially important.” Id.

at 433-34 (citing Chambers, 410 U.S. at 298-301) (footnote omitted).

As pertinent to the Petitioner’s case, Brown recognized the critical difference

between impeachment evidence and substantive rebuttal evidence:

Part of the flaw in the dissent’s analysis of the issue in this case results

from the dissent’s failure to recognize that a defendant has both the right to

cross-examine witnesses presented by the State and the right to present

witnesses in his or her own behalf. . . . The dissent’s analysis is also flawed

in that it draws no distinction between impeachment evidence and

substantive rebuttal evidence. The two types of proof clearly are not

equivalent. A jury considers impeachment proof only when assessing the

credibility of witnesses. See State v. Martin, 964 S.W.2d 564, 567 (Tenn.

1998) (Holder, J.) (citing State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982)

for the proposition that prior inconsistent statements may be considered

only on the issue of credibility and not as substantive evidence). . . .

Therefore, unless the dissent is proposing a change in current Tennessee

law, simply following Tennessee Rule of Evidence 613 would not have

afforded to the defendant his right to offer substantive rebuttal proof which

was crucial to explain the State’s medical proof and necessary to establish a

defense.

Id. at 432 n.11 (emphasis added).

The trial court’s Rule 412 order shows that it failed to make the critical distinction

between impeachment evidence that relates to the Petitioner’s right to cross-examine

witnesses regarding their credibility and substantive rebuttal evidence that relates to the

Petitioner’s right to present witnesses in his own behalf. Because the trial court

erroneously limited its ruling to whether the proffered evidence was admissible as

impeachment evidence, in violation of Brown, we conclude that the defense attorneys

were deficient in failing to renew the Rule 412 motion in an effort to have the proffered

evidence admitted as substantive rebuttal evidence pursuant to the Petitioner’s right to

present a defense.

We also conclude that the defense attorneys’ failure to renew the Rule 412 motion

was prejudicial. As we have repeatedly emphasized, the timing of the sexual contact

between the victim and W.C.L. was crucial in showing that W.C.L. was responsible for

the offenses described in indictment, rather than the Petitioner. Because this was such a

- 54 -

viable defense under the particular facts of this case, the defense attorneys’ failure to

competently pursue this defense fell below the objective standard of reasonableness for

attorneys in criminal cases. See Strickland, 466 U.S. at 687-88. In light of the extremely

unfavorable and problematic Rule 412 ruling, which unduly limited the Petitioner’s

defense, the defense attorneys’ failure to renew the Rule 412 motion was prejudicial. We

believe that the Petitioner has demonstrated that but for the defense attorneys’

unprofessional errors regarding this Rule 412 motion, the result of both the Rule 412

hearing and his trial would have been different.

We also conclude that the defense attorneys were ineffective in failing to renew

their motion under Rule 412(c)(4)(ii) when it became clear that the prosecution was

going to present evidence at trial and argue to the jury that all of the victim’s sexual

knowledge was gained as a result of the Petitioner’s abuse. Evidence disclosed during

discovery and over the course of the Petitioner’s case showed that the victim, prior to

November 2010, had obtained sexual knowledge from his sexual contact with W.C.L.

The prosecution presented several pieces of evidence showing that the victim

obtained all of his sexual knowledge from the Petitioner’s abuse of him. The victim

testified at trial that he did not know what fellatio was until the Petitioner showed him

how to do it. William Edward Arnold, 2015 WL 99272, at *2. The victim also described

the Petitioner’s ejaculate as “some wet and sticky stuff or something like that.” Id. In

addition, the victim said he felt “confused” because some of the things the Defendant did

to him felt “good,” but he wondered why they could not have a “normal mentor

relationship.” Id. at *3. Moreover, the victim testified that he met W.C.L. in 2011, after

the mentor relationship with the Petitioner ended and that the victim had wanted “to feel

good with [W.C.L.] because of things [he] learned from [the Petitioner].” Id.

Furthermore, the prosecution also presented proof that when the victim was asked during

his medical examination in late 2010 if he had any sexual contact with his peers, the

victim responded that he had sexual contact only with “the person that touched me.” Id.

In addition, during closing arguments, the prosecution argued to the jury that the only

way for the young victim to have gained this sexual knowledge was from the Petitioner’s

abuse of him.

Because the record shows that the prosecution repeatedly presented evidence and

argument that all of the

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