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Davis v. State

Court of Criminal Appeals of Tennessee, Jackson

November 16, 2016

MARVIN DAVIS
v.
STATE OF TENNESSEE

          Assigned on Briefs at Knoxville July 26, 2016

         Appeal from the Criminal Court for Shelby County No. 11-06514 J. Robert Carter, Jr., Judge

         The 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 post-conviction court.

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

          Patrick M. Brooks (on appeal and at hearing) and Josie S. Holland (on appeal), Memphis, Tennessee, for the appellant, Marvin Davis.

          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 Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, J., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The 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).

         The 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 written order.

         At the 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 now deceased.

         Co-counsel 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[1] 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."

         Co-counsel 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.

         Co-counsel 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 earlier hearing.

         Co-counsel 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.

         The 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.

         I

         Ineffective Assistance of Counsel

         Post-conviction 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 457-58.

         To 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).

         A 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.

         A. Failure to Object to Hearsay Evidence

         The 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.

         1. Victim's Mother's Testimony

         We 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 asserted.

         The trial transcript, which is contained in the record of the Petitioner's previous appeal, reflects the following testimony:

Q. Did you take your daughter to LeBonheur Children's Hospital on that day?
A. Yes, ma'am.
Q. Why?
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]?
A. Yes.
Q. What had she been complaining about?
A. Bad stomach aches.
Q. Had she ever complained about her stomach hurting like that before?
A. No, ma'am.
Q. Did you ask her about her stomach ...

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