Assigned on Briefs at Knoxville July 26, 2016
from the Criminal Court for Shelby County No. 11-06514 J.
Robert Carter, Jr., Judge
Petitioner, Marvin Davis, appeals the Shelby County Criminal
Court's denial of his petition for post-conviction relief
from his rape of a child conviction, for which he is serving
a twenty-five-year sentence. He contends that he received the
ineffective assistance of counsel and that the
post-conviction judge erred in denying the Petitioner's
motion to recuse. We affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Patrick M. Brooks (on appeal and at hearing) and Josie S.
Holland (on appeal), Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin E.D. Smith, Assistant Attorney General; Amy P.
Weirich, District Attorney General; Dru Carpenter, Assistant
District Attorney General, for the appellee, State of
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J., and Camille R. McMullen,
H. MONTGOMERY, JR., JUDGE
Petitioner's conviction pertains to the rape of his
girlfriend's six-year-old great-niece. The victim
frequently stayed in the home the Petitioner and his
girlfriend shared and slept in the same room with them.
According to the trial proof, the Petitioner woke the victim
while the Petitioner's girlfriend slept, carried the
victim upstairs, and sexually penetrated her vaginally and
anally on two occasions. The second of these occasions is the
basis for the conviction. On appeal, the Petitioner
challenged the sufficiency of the evidence and the trial
court's evidentiary ruling admitting a videotaped
forensic interview of the victim. This court affirmed the
conviction, and the supreme court denied the Petitioner's
application for permission to appeal. See State v. Marvin
Davis, No. W2013-00656-CCA-R3-CD, 2014 WL 1775529 (Tenn.
Crim. App. May 1, 2014), perm. app. denied (Tenn.
Dec. 5, 2014).
Petitioner filed the present post-conviction action alleging
he received the ineffective assistance of counsel from the
two attorneys who acted as his trial counsel. Post-conviction
counsel was appointed. Post-conviction counsel filed a motion
for the judge to recuse himself based upon alleged bias in
favor of the State due to a ruling the judge made at the
Petitioner's trial, and the judge denied the motion in a
post-conviction hearing, co-counsel testified that his duties
involved analyzing the medical evidence, jury selection,
opening statements, medical testimony, and cross-examination.
He said lead counsel handled all other aspects of the case
and made the major decisions. He said that lead counsel was
testified that he did not know why lead counsel had not
objected to the victim's mother's testimony that she
had taken the victim to a hospital after the victim stated
the Petitioner had "freaked on" the victim. He said
he did not think the statement was hearsay because it had not
been offered for the truth of the matter asserted. Co-counsel
did not know why lead counsel had not objected when Dr. Karen
Lakin testified that the victim told Dr. Lakin
that the victim "freaked on" the victim but said he
did not think the evidence had been offered for the truth of
the matter asserted. In his opinion, the victim's
statement to Dr. Lakin was made for purposes of medical
diagnosis and treatment. He did not know why lead counsel
repeated the victim's statement during cross-examination
of witnesses and said he thought it was "how the cross
examination was phrased."
acknowledged that a motion pursuant to Tennessee Rule of
Evidence 412 regarding "other potential explanations for
injuries or the testimony of Dr. Karen Lakin" was filed
but did not know why lead counsel had not argued the motion
at a hearing. Co-counsel said the motion pertained to
allegations that two individuals other than the Petitioner
sexually abused the victim. The motion was received as an
exhibit. Co-counsel said the only injury to the victim
identified by the evidence was a hymenal notch which,
according to Dr. Lakin, was a non-specific finding that might
or might not indicate sexual activity.
testified that he had adequately prepared lead counsel to
cross-examine Patricia Lewis, the child forensic interviewer
who testified for the State. He did not know why lead counsel
had not cross-examined Ms. Lewis regarding what the
Petitioner believed were leading questions the prosecutor had
asked Ms. Lewis. Co-counsel said that in most cases, an
interviewer would say that he or she had not asked leading
questions because they were trained not to do so. Co-counsel
said that lead counsel might not have asked about alleged
leading questions in order to reserve the issue for closing
argument. He said lead counsel had a good idea of how the
forensic interviewer would testify at the trial because lead
counsel had been able to cross-examine the interviewer at an
testified that lead counsel had been organized, kept her
files well documented, saw her clients many times, and
conducted appropriate investigation. He said lead counsel had
empathy toward the Petitioner, and he noted that her file
relative to the Petitioner's case indicated she had
worked a "vast amount of time, " prepared for
trial, prepared for the medical examiner's testimony,
"went above and beyond" to visit the Petitioner in
jail, and had been extremely meticulous and organized.
Petitioner elected not to testify at the hearing. After
receiving the proof, the post-conviction court denied relief
in a written order. This appeal followed.
Assistance of Counsel
relief is available "when the conviction or sentence is
void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the
Constitution of the United States." T.C.A. §
40-30-103 (2012). A petitioner has the burden of proving his
factual allegations by clear and convincing evidence.
Id. § 40-30-110(f) (2012). A post-conviction
court's findings of fact are binding on appeal, and this
court must defer to them "unless the evidence in the
record preponderates against those findings." Henley
v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see
Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A
post-conviction court's application of law to its factual
findings is subject to a de novo standard of review without a
presumption of correctness. Fields, 40 S.W.3d at
establish a post-conviction claim of the ineffective
assistance of counsel in violation of the Sixth Amendment, a
petitioner has the burden of proving that (1) counsel's
performance was deficient and (2) the deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has
applied the Strickland standard to an accused's
right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417,
419 n.2 (Tenn. 1989).
petitioner must satisfy both prongs of the
Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960
S.W.2d at 580. "[F]ailure 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). To establish the
performance prong, a petitioner must show that "the
advice given, or the services rendered . . ., are [not]
within the range of competence demanded of attorneys in
criminal cases." Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts
or omissions, viewed in light of all of the circumstances,
fell "outside the wide range of professionally competent
assistance." Strickland, 466 U.S. at 690. A
petitioner "is not entitled to the benefit of hindsight,
may not second-guess a reasonably based trial strategy by his
counsel, and cannot criticize a sound, but unsuccessful,
tactical decision." Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v.
State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies "if the choices are informed . . .
based upon adequate preparation." Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To
establish the prejudice prong, a petitioner must show that
"there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland, 466 U.S. at 694. "A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id.
Failure to Object to Hearsay Evidence
Petitioner contends that his trial attorneys provided
ineffective assistance when they failed to object (1) to the
victim's mother's direct examination testimony that
she had taken the victim to a hospital because the victim
stated the Petitioner had "freaked on" the victim
and (2) to Dr. Lakin's direct examination testimony that
the victim told Dr. Lakin that the victim's aunt's
boyfriend had "freaked on" the victim. The
Petitioner argues that the testimony was inadmissible hearsay
and that counsel should have requested a hearing for the
court to determine whether the statements were "made
under circumstances indicating trustworthiness" pursuant
to Tennessee Rule of Evidence 803(26)(C), the hearsay
exception pertaining to admission of prior inconsistent
statements of a testifying witness. The State contends that
the Petitioner's trial attorneys did not provide
ineffective assistance because the testimony was not hearsay.
Victim's Mother's Testimony
consider, first, the Petitioner's argument that counsel
provided ineffective assistance in failing to object to the
victim's mother's testimony. Co-counsel was not asked
why he did not object, but when he was asked why lead counsel
might not have objected, he testified to his opinion that the
evidence was not offered for the truth of the matter
trial transcript, which is contained in the record of the
Petitioner's previous appeal, reflects the following
Q. Did you take your daughter to LeBonheur Children's
Hospital on that day?
A. Yes, ma'am.
A. Because she told me that morning that [the Petitioner] had
freaked on her. And her stomach was hurting real bad.
Q. Had she been acting differently or complaining of anything
before she talked to you about [the Petitioner]?
Q. What had she been complaining about?
A. Bad stomach aches.
Q. Had she ever complained about her stomach hurting like
A. No, ma'am.
Q. Did you ask her about her stomach ...