Assigned on Briefs May 05, 2015.
Appeal from the Circuit Court for Tipton County No. 6159 Joe H. Walker III, Judge.
Richard McFall, Covington, Tennessee, for the appellant, Justin Dewayne Rogers.
Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior Counsel; Mike Dunavant, District Attorney General; and Jason R. Pyner, Assistant District Attorney General for the appellee, State of Tennessee
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Norma McGee Ogle and Roger A. Page, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE.
A Tipton County grand jury indicted the Petitioner for rape of a child. This Court summarized the facts presented at trial as follows:
The facts underlying this case involve the [Petitioner] leading the four-year-old victim to the woods, where he bribed him with a pocket knife and broken cigarette lighter to take down his pants before he anally penetrated him with his penis. The victim's mother testified that she was the girlfriend of the [Petitioner]'s father. She said that the [Petitioner] was visiting them on the weekend of September 5, 2008, when he took the victim outside to play. When the victim returned he began experiencing trouble with his bowels, characterized by an inability to control his bowel movements. The victim also complained of pain in his "booty."
The victim was taken to the hospital in Covington, Tennessee and later referred to the Memphis Sexual Assault Resource Center where he was interviewed and examined. The victim told the nurse practitioner in Memphis that he had been anally penetrated, but his examination revealed no findings to confirm or deny the anal penetration.
A detective with the Tipton County Sheriff's office interviewed the [Petitioner] on September 11, 2008. The [Petitioner] waived his rights and made a statement. He told the detective that he took the victim to the woods, bribed him to take down his pants, and anally penetrated the child with his penis.
Rogers, 2010 WL 4812776, at *1. After hearing the evidence, the jury convicted the Petitioner of rape of a child, and the trial court sentenced the Petitioner to serve twenty-five years in the Department of Correction. The Petitioner appealed his conviction, which was affirmed. Id.
On November 1, 2011, the Petitioner filed a post-conviction petition claiming that he had received the ineffective assistance of counsel because his attorney ("Counsel") failed to file a motion to suppress the Petitioner's taped confession. The post-conviction court appointed the Petitioner an attorney and held a hearing on July 8, 2014. At the hearing, the post-conviction court admitted the trial transcript into evidence.
Counsel testified that he did not file a motion for discovery in this case because a waiver of the preliminary hearing was given in exchange for discovery from the State. In preparation for trial, Counsel interviewed the Petitioner extensively, and he also interviewed the Petitioner's mother. He said that he unsuccessfully attempted to interview the victim's mother. Counsel recalled that the Petitioner did not offer an alibi or any explanation as to his admission to the police. Counsel stated that he requested a mental evaluation of the Petitioner and hired an expert witness, Dr. Hutson, as a defense ...