Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 21, 2017
from the Criminal Court for Knox County No. 106180 Steven
Wayne Sword, Judge
Petitioner, David Andrew Oliver, appeals the denial of his
petition for post-conviction relief in which he challenged
his rape of a child conviction and twenty-five year prison
sentence. On appeal, the Petitioner contends that he was
denied his right to the effective assistance of counsel,
arguing that trial counsel should have advised him to testify
at trial. We affirm the post-conviction court's denial of
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Liddell Kirk, Knoxville, Tennessee, for the appellant, David
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Charme
Allen, District Attorney General; and Rachel Russell,
Assistant District Attorney General, for the appellee, State
Everett Williams, J., delivered the opinion of the court, in
which Timothy L. Easter and J. Ross Dyer, JJ., joined.
EVERETT WILLIAMS, JUDGE
AND PROCEDURAL HISTORY
Petitioner was convicted of rape of child by a Knox County
Criminal Court jury. The trial court sentenced the Petitioner
to serve twenty-five years in prison.
direct appeal, this court summarized the underlying facts of
the Petitioner's conviction, as follows:
[I]n October 2011, the victim's aunt and a female cousin
were living in a small house on Boone Street in Knoxville.
One night near Halloween, the then twelve-year-old victim
spent the night there. The [Petitioner], who was dating the
victim's cousin, also spent the night. The victim slept
on the living room couch but woke to discover the
[Petitioner] staring at her. The [Petitioner] forced himself
on the victim, penetrated her vagina with his penis, and
ejaculated. About one year later, the victim revealed the
incident to a counselor and was interviewed at Childhelp. As
a result of the Childhelp interview, officers with the
Knoxville Police Department (KPD) began investigating the
victim's allegations and interviewed the [Petitioner].
During the [Petitioner's] interview, he admitted knowing
the victim and spending the night at the home on Boone Street
while the victim was there. The officers suggested to the
[Petitioner] that the victim became pregnant and had a baby,
which was not true. The [Petitioner] told the officers that
he forced the victim to have sex with him, that she tried to
fight him off, and that he ejaculated. After the interview,
the [Petitioner] wrote a letter to the victim in which he
apologized for hurting her. He also wrote that, if she had a
baby, he wanted a DNA test to determine if he was the father
and wanted to see the baby.
State v. David Andrew Oliver, No.
E2013-02426-CCA-R3-CD, 2014 WL 12649795, at *1 (Tenn. Crim.
App. Nov. 20, 2014), perm. app. denied (Tenn. Mar.
12, 2015). Relevant to the issue before this court, the trial
court conducted a hearing pursuant to Momon v.
State, 18 S.W.3d 152 (Tenn. 1999). During the hearing,
the Petitioner testified that he and trial counsel discussed
several times whether he should testify at trial, his Fifth
Amendment right to remain silent, his ability to fully decide
whether to testify, and the advantages and disadvantages of
testifying. The Petitioner decided the following day on the
second day of trial not to testify. On direct appeal, the
Petitioner challenged the trial ...