Court of Criminal Appeals of Tennessee, Knoxville
GLYN TERRANCE DALE, SR.
STATE OF TENNESSEE
Assigned on Briefs October 21, 2014
Appeal from the Criminal Court for Knox County No. 101507 Bob R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Glyn Terrance Dale, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Randall Eugene Nichols, District Attorney General; and Ashley Dawn McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.
D. KELLY THOMAS, JR., JUDGE
In 2007, the Petitioner was convicted of two counts of rape of a child and received an effective twenty-year sentence. State v. Glyn Dale, No. E2008-01139-CCA-R3-CD, 2010 WL 1241601, at *1 (Tenn. Crim. App. Mar. 31, 2010), perm. app. denied, (Tenn. Aug. 25, 2010). This court affirmed the Petitioner's convictions but remanded the case for a new sentencing hearing. Id. Following a second sentencing hearing, the Petitioner received an effective sentence of twenty-five years. State v. Glyn Dale, No. E2010-01824-CCA-R3-CD, 2012 WL 335460, at *1, 3 (Tenn. Crim. App. Feb. 1, 2012), perm. app. denied, (Tenn. May 16, 2012). This court affirmed the Petitioner's new sentences on direct appeal, and our supreme court declined to review that decision. Id. at *1.
At trial, the victim testified that she was raped by the Petitioner on two occasions shortly before her thirteenth birthday. Dale, 2010 WL 1241601, at *1. The victim testified that the rapes occurred at her aunt's house in June and July 2004. The victim's aunt and the Petitioner had three children together, and the Petitioner would frequently spend the night at the house, especially when the victim was visiting. The victim testified that the first rape occurred on a couch in the living room. The victim woke up to find the Petitioner on top of her and removing her clothes. He told her not to tell anyone and not to yell. The Petitioner then vaginally penetrated her with his penis for two or three minutes. The victim testified that, afterwards, she was in pain and cried herself to sleep. The next morning, the victim was bleeding from her vagina. Id.
The victim testified that the second rape occurred in July 2004, before her thirteenth birthday on July 14. Dale, 2010 WL 1241601, at *1. The victim was again asleep on a couch in the living room when she woke to find the Petitioner on top of her. The Petitioner told her not to scream or yell and vaginally penetrated her with his penis for two or three minutes. The victim testified that she was in pain after the rape but that there was no blood. The victim's mother and the principal of her school both testified that the victim's behavior changed around the time of the rapes. Id. at *1-2. The victim reported the rapes in September 2004, and a physical examination revealed "two notches in her hymen" that "were consistent with some form of penetration." Id. at *2.
The victim's grandmother and uncle testified at trial that the Petitioner admitted to them that he had raped the victim. Dale, 2010 WL 1241601, at *2-3. The victim's grandmother further testified that the Petitioner told her that he had sex with the victim twice before her thirteenth birthday. Id. at *2. The victim's aunt testified on the Petitioner's behalf at trial. Id. at *3. She testified that the victim had told her that "she was having sex with a 'guy from school'" prior to her accusations against the Petitioner. Id. The Petitioner testified and denied that he had raped the victim. The Petitioner further testified that the victim's grandmother and uncle had "misunderstood and mischaracterized what he said to them" because he had a speech impediment. Id.
The Petitioner filed a timely pro se petition for post-conviction relief. Counsel was appointed and an amended petition was filed. The Petitioner did not testify at the post-conviction hearing, choosing instead "to rely on the underlying record." The Petitioner argued that trial counsel was ineffective for admitting into evidence at trial two statements that the victim made to a DCS investigator. In the first statement, the victim said that the first rape occurred in June 2004 and that the second rape occurred "in July when she was [thirteen] years old." In the second statement, the victim again said that the first rape occurred in June 2004, and that the Petitioner "got on top of her, took her pants and panties off[, ] penetrated her[, ]" and that she cried and bled after the rape. In the second statement, the victim stated that the second rape occurred on July 2, 2004, before her thirteenth birthday.
Trial counsel testified that she was an Assistant Public Defender and that she represented the Petitioner at trial and on his first appeal. Trial counsel hired an investigator and received assistance from another Assistant Public Defender in preparing for trial. Trial counsel testified that the Petitioner was "a fairly cooperative client in the beginning" and that the Petitioner "seemed to fully grasp the issues that were at play." According to trial counsel, the State offered plea agreements of fifteen years and ten years, which the Petitioner rejected. Trial counsel testified that the Petitioner "asserted from the very beginning that he did not have any sexual contact at all with the victim." Trial counsel further testified that she "wanted to persuade the jury that there was a reasonable doubt . . . based on [the victim's] credibility as a witness."
To pursue that strategy, trial counsel testified that "it was important to find inconsistencies in what [the victim] had said during the time that the allegations came out." Trial counsel testified that she "found [a] discrepancy in the DCS records about what [the victim's] age would have been at the time of one of the alleged rapes." According to trial counsel, "one of the rapes definitely was alleged to have happened before [the victim] turned [thirteen]." However, there was a statement in the DCS records that the victim told an investigator that the second rape occurred after she had turned thirteen. Trial counsel testified that she "thought that was a significant ...