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Lewis v. State

Court of Criminal Appeals of Tennessee, Knoxville

October 23, 2017

JOSHUA PAUL LEWIS
v.
STATE OF TENNESSEE

          Assigned on Briefs September 20, 2017

         Direct Appeal from the Criminal Court for Cumberland County No. 10-0008 David A. Patterson, Judge.

         A Cumberland County jury convicted the Petitioner, Joshua Paul Lewis, of two counts of rape of a child and one count of attempted rape of a child, and the trial court sentenced him to serve an effective sentence of twenty-five years. This court affirmed the Petitioner's convictions and sentence. State v. Joshua Paul Lewis, No. E2014-00918-CCA-R3-CD, 2015 WL 795856 (Tenn. Crim. App., at Knoxville, Feb. 25, 2015), no Tenn. R. App. P. 11 filed. The Petitioner subsequently filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. The post-conviction court held a hearing on the petition and denied relief. We affirm the post-conviction court's judgment.

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

          Jonathan R. Hamby, Crossville, Tennessee, for the appellant, Joshua Paul Lewis.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Amanda M. Worley, 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 Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts and Procedural History

         A. Trial

         This case arises from the Petitioner's multiple rapes of the victim, a nine-year-old boy, who was the child of the Petitioner's friend. For these offenses, a Cumberland County grand jury indicted the Petitioner for two counts of rape of a child and one count of attempted rape of a child. When the Petitioner appealed his convictions and sentence, this court recited the following facts presented at the pretrial hearing and at trial:

Investigator Jeff Slayton with the Cumberland County Sheriff's Department testified that he was one of the officers who interviewed the [Petitioner] on December 9, 2009. He identified an "Admonition and Waiver and Waiver of Rights" document bearing the same date and signed by the [Petitioner]. The document also indicates a time of 9:07 p.m. This document was subsequently admitted into evidence.
Investigator Slayton stated that, earlier that day, he had been in a "lengthy . . . vehicle pursuit" of the [Petitioner]. During the [Petitioner]'s apprehension, he was pepper-sprayed at some time late in the afternoon, but before 6:00 p.m. Investigator Slayton stated that he had been pepper-sprayed as part of his training and that the effects last from thirty to forty-five minutes.
Investigator Slayton interviewed the [Petitioner] together with Investigator Chad Norris. A "DCS" agent, whose name he could not remember, was also present. The interview took place in the training room of the justice center. The [Petitioner] was in custody at the time.
Investigator Slayton read the Admonition and Waiver to the [Petitioner], and the [Petitioner] then read the Waiver of Rights out loud. According to Investigator Slayton, the [Petitioner] had no trouble reading the document. The [Petitioner] did not complain about being unable to read because of the pepper-spray. After the [Petitioner] had read the Waiver of Rights out loud, he signed it. Investigators Slayton and Norris both witnessed the [Petitioner]'s signature.
Investigator Slayton proceeded to question the [Petitioner] about the pursuit. He also questioned him about the instant allegations, of which Investigator Slayton had just learned. At no time did he promise the [Petitioner] a lower bond if he confessed to the sex offense charges. After Investigator Slayton finished his oral interview of the [Petitioner], Investigator Norris reduced the [Petitioner]'s statement to writing.
On cross-examination, Investigator Slayton maintained that the [Petitioner]'s eyes were not "irritated" during the interview and that the [Petitioner] had been able to look at and focus on Investigator Slayton. He also maintained that the [Petitioner] was "calm" and "understanding" while the Admonition and Waiver was read to him. Investigator Slayton described this information as the [Petitioner]'s Miranda rights. The [Petitioner] did not have on handcuffs, but Investigator Slayton did not remember if the [Petitioner] had on leg-shackles. According to Investigator Slayton, there was no audio-recording of the interview.
Investigator Chad Norris with the Cumberland County Sheriff's Department testified that he witnessed the [Petitioner] sign the Waiver of Rights. He also stated that he reduced the [Petitioner]'s statement to writing. He identified the document and explained his process for creating it:
The way I do my statements is, I will write a portion of it, after what they've told me what they want to say, I'll write their words and I'll read back what I've wr[itten]; and then I'll continue on with it, write a small-another portion of it, read it back, and all the time asking them, "Is this what you want me to say? Is this correct?" And I do that throughout the whole statement. Then I give them the statement and have them read over it.
Investigator Norris confirmed that he followed this process with the [Petitioner]'s written statement. He then read the statement into the record:
I had several sexual contacts with [the victim] after he came on to me. I touched his penis several times, I'm not sure exactly how many times. He played with my penis several times as well. I never came/ejaculated while he played with my penis. When it first started we were both into it, but in the later part of the relationship [the victim] was more into it than me. I gave him a blow job more than one time, but I'm not sure exactly how many times. Most of the sexual acts occurred at Valerie D[]s' house on Old Highway 70. On one occasion while at the cemetery on POW Camp Rd not too far from Valerie's house [the victim] wanted to have sex in Valerie's van. He got in the back seat and took his pants off. He had his legs raised up and I had my pants unzipped with my penis out. I had a condom on and was about to put my penis in his butt, but decided [to] stop before we had intercourse. At a house on Old Mail Road where I was doing work me and [the victim] laid on top of each other, but nothing happened there. I wish these things hadn't happened and I would take them back if I could.
Investigator Norris testified that the [Petitioner] signed this written statement at 10:45 p.m. He also testified that he did not promise the [Petitioner] a lower bond if he confessed to these crimes.
On cross-examination, Investigator Norris stated that it was "typical" for him to write a suspect's statement. Investigator Norris also affirmed that the [Petitioner] had been taken into custody on unrelated charges. He stated that he had previously interviewed the [Petitioner] on the instant charges on August 11, 2009, in the [Petitioner]'s driveway. He did not obtain a statement from the [Petitioner] on that day.
The [Petitioner] testified at the suppression hearing that he had run from the police on December 9, 2009, because he had been told they were going to beat him up. He also stated that he "remember[ed] getting beat up by most of the sheriff's department and maced a couple of times." His eyes were burning, and he tried to rinse them with water, but "that made it a hundred times worse." He did not remember at what time he was sprayed because he "was on Xanax, " but he stated that it was "dark out." He described the sensation of being sprayed as "someone was jabbing a knife in [his] eye."
When asked about the interview, the [Petitioner] stated that all he could remember talking about was "running from the cops." He did not remember Investigator Norris presenting him with the written statement. He acknowledged having signed some "papers" but stated that he was not sure what they were and that he did not read them. He testified that the officers told him "that if [he] signed the paper that they would make sure [he] got the lowest bond possible to get out." He stated that he had not been capable of reading during the interview because his eyes were still burning. He also stated that he did not remember his Miranda rights being read to him.
On cross-examination, the [Petitioner] stated that he was twenty-eight years old and could read and write. When shown his statement, he acknowledged that the signature "look[ed] pretty close to" his own. He also averred that he ...

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