Court of Criminal Appeals of Tennessee, Nashville
JACKIE D. SEYMORE
STATE OF TENNESSEE
Assigned on Briefs March 11, 2015.
Appeal from the Circuit Court for Montgomery County No. 40900446 John H. Gasaway, III, Judge.
B. Nathan Hunt, Clarksville, Tennessee, for the Defendant-Appellant, Jackie D. Seymore.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; John W. Carney, District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Roger A. Page, JJ., joined.
CAMILLE R. McMULLEN, JUDGE.
In October 2010, the Petitioner was indicted for three counts of rape of a child for the rape of his daughter. Following a bench trial, the Petitioner was convicted of two counts of rape of a child and acquited of the third count. On May 12, 2011, the trial court sentenced the Petitioner to 25 years' confinement for each count of rape of a child, to run concurrently to each other and concurrently to a 6-year sentence for a prior conviction. This court affirmed the trial court's judgment on direct appeal. See State v. Jackie D. Seymore, No. M2012-01109-CCA-R3-CD, 2013 WL 772917 (Tenn. Crim. App. Feb. 28, 2013).
On May 10, 2012, the Petitioner filed a petition for post-conviction relief, which was held in abeyance pending his delayed direct appeal. He was subsequently appointed counsel and an amended petition was filed on his behalf on August 27, 2013. On March 13, 2014, an evidentiary hearing was held, at which the following evidence was presented.
The Petitioner testified that he was represented by counsel at trial and that the two met only a few times prior to trial. The Petitioner wrote letters to counsel asking him to "put more time and effort" into the Petitioner's case but "wouldn't get a response until [counsel] wanted to come and see [him]." He recalled that his last meeting with counsel was only a few days prior to trial, during which counsel brought clothes for the Petitioner to wear during trial. The Petitioner complained that during trial, counsel failed to establish "prejudice and bias on the part of [the Petitioner's] wife and [the victim]." When asked to explain how counsel failed in this respect, the Petitioner explained,
Any time that my wife has ever left the home and left me in charge I was responsible. Every time that my wife come [sic] back . . . . my children have never [been] harmed. Any day – whatever day, time, year in question, anytime my wife has ever left the home and returned my children were never harmed.
The Petitioner believed that counsel failed to establish this fact at trial. The Petitioner also complained that counsel failed to object to certain changes in the indictment and failed to object when the State questioned the Petitioner about matters that were suppressed prior to trial. The Petititioner believed that counsel provided deficient representation that prejudiced his defense.
Counsel testified that after taking over the case from the Petitioner's prior attorney, he met with the Petitioner "plenty of times" before trial. He recalled that the Petitioner wanted to testify at trial to "tell his side of the story, " and counsel discussed with him the risks of testifying. Counsel informed the Petitioner that he would be subject to cross-examination and could be impeached with his prior felony record. Because the Petitioner adamantly wanted to testify, counsel advised him to waive a trial by jury and proceed with a bench trial because of his prior felony record.
With regard to the superseding indictment, counsel recalled that "virtually all of the dates alleged in the first indictment were, in fact, times that [the Petitioner] was behind bars in the Montgomery County Jail." The State subsequently sought a second indictment "that expanded the dates" to time periods when the Petitioner was not incarcerated. Counsel believed the timeline was a "weakness" in the State's case and stated that he "zealously presented" evidence at trial to show that the State "shifted and rotated" the dates of the offense after learning that the Defendant had alibis for dates alleged in the first indictment. When asked whether he failed to object to questions by the State about subject matter that had been suppressed prior to trial, counsel could not recall anything specific but stated that "the judge is quite adept at picking through the min[e] field and placing that out of his mind if it's not lawfully admissible evidence; whereas a jury may hear something and ignore an instruction to disregard what they just heard." With regard to the Petitioner's complaint that counsel failed to establish prejudice or bias by the victim and her mother, counsel stated that he found no motive or incentive for the victim to lie. He explained, "[I]t's not an element of the offense, but the fact finder often wants to know why would an articulate[, ] . . . vocal young lady say these things happened, and [the Petitioner] couldn't give me . . . a good reason for why . . . [the victim] would make false statements."
Following the hearing, the post-conviction court took the matter under advisement and, at a subsequent hearing, denied the Petitioner's petition for relief. He set out the same in a written order on April 14, 2014. It ...