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Presson v. State

Court of Criminal Appeals of Tennessee, Jackson

April 25, 2018


          Session Date: July 11, 2017

          Appeal from the Circuit Court for Madison County No. C-15-318 Roy B. Morgan, Jr., Judge

         The Petitioner, Michael Presson, appeals from the Madison County Circuit Court's denial of his petition for post-conviction relief. The Petitioner contends (1) that trial counsel was ineffective for failing to present an "economic motive" defense and failing to call witnesses at trial to support that defense; (2) that trial counsel was ineffective by failing to request a severance for charges that involved two separate victims; (3) that trial counsel was ineffective in failing to challenge certain jurors during voir dire; (4) that trial counsel was ineffective by failing "to call" the Petitioner as a witness at trial; (5) that trial counsel was ineffective for failing to object to the State's references to the term "pedophile" and to pornography during its closing argument; (6) that the trial court erred by failing to instruct the jury on certain lesser-included offenses and that trial counsel was ineffective in failing to request such instructions; (7) that trial counsel "was ineffective for failing to request that the trial court require the State to make an election of offenses" and "by failing to object to the trial court judge's election of offenses"; and (8) that post-conviction relief is warranted due to cumulative error.[1] Following our review, we affirm the judgment of the post-conviction court.

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

          William D. Massey and Chelsea A. Harris, Memphis, Tennessee, for the appellant, Michael Presson.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.




         I. Procedural History

         In April 2010, the Petitioner was indicted for numerous offenses involving two victims, T.B. and S.W.[2] State v. Michael Presson, No. W2012-00023-CCA-R3-CD, 2014 WL 1669860, at *1 (Tenn. Crim. App. Apr. 24, 2014), perm. app. denied (Tenn. Nov. 10, 2014). With respect to T.B., the Petitioner was indicted "for twenty-two counts of aggravated sexual battery, sixteen counts of rape of a child, two counts of sale, loan or exhibition of material harmful to minors, and one count of indecent exposure." Id. With respect to S.W., the Petitioner was indicted for "three counts of sexual battery." Id.

         Following a jury trial, the Petitioner was convicted of "ten counts of [the lesser-included offense of] attempted aggravated sexual battery, eleven counts of rape of a child, and one count of aggravated sexual battery, " all with respect to T.B. Presson, 2014 WL 1669860, at *9. The Petitioner "was acquitted of all counts in the indictment pertaining to S.W., " as well as "five counts of rape of a child, eleven counts of aggravated sexual battery, two counts of sale, loan or exhibition of material harmful to minors, and one count of indecent exposure . . . [, all] pertaining to T.B." Id. at *9 n.2. The trial court imposed a total effective sentence of thirty-five years. Id. at *10.

         This court affirmed the Petitioner's convictions and sentences on direct appeal. Presson, 2014 WL 1669860, at *1. On November 10, 2014, our supreme court declined to review that decision. On November 6, 2015, the Petitioner, through counsel, filed a timely petition for post-conviction relief. Two amended petitions were subsequently filed on the Petitioner's behalf. [3] Following an evidentiary hearing, the post-conviction court entered a written order denying post-conviction relief on June 3, 2016.

         II. Trial Facts

         T.B. testified at trial that she met the Petitioner "the summer before her seventh grade year in school." Presson, 2014 WL 1669860, at *2. T.B.'s mother "had worked for the [Petitioner]" and he was considered "a family friend." Id. T.B. even "referred to the [Petitioner] as 'granddad.'" Id. at *5. T.B. testified "that she used to see the [Petitioner] 'a lot.'" Id. at *2. T.B. explained that the Petitioner would "occasionally" pick her up from school, that "she and the [Petitioner] would go out to eat together, " that they would "go hunting together, " and that "she would 'stay the night' at his house." Id. "T.B. estimated that she spent the night at the [Petitioner's] house 'over a hundred' times" and testified that "she had full access to the house" and "was 'real familiar' with the inside" of the house. Id. at *2, 5.

         T.B. described what would typically happen when she spent the night at the Petitioner's house as follows:

T.B. testified that she would normally go to the [Petitioner's] house on a Friday night, and he would "give [her] a bath, " and she "would have to sleep in the bed with [the Petitioner]." When giving her a bath, the [Petitioner] would "wash [her] with a wash rag" on her "breasts and [her] private area." T.B. indicated to the jury that her "private area" was her genital area. When asked how the [Petitioner] would wash her genital area, T.B. responded "[h]e wouldn't go inside the hole [of the vagina]; he would go like on the inside of like the walls" and stated she was referring to the vaginal lips. T.B. stated that after the [Petitioner] washed her, they would go lay in bed together, and that the [Petitioner] would use a razor to shave her legs and her private area. She recalled that the [Petitioner] told her that shaving would prevent her from "getting an infection."
T.B. testified that she slept in the same bed as the [Petitioner]. She stated that the [Petitioner] gave her a shirt cut off above her waist to wear and that he would wear underwear. She recalled that there were two bedrooms in the house, but that she slept in his room because he told her there had been "break-ins" in the neighborhood. T.B. stated that, while lying in bed, the [Petitioner] would "wrap his arm around [her], " and he would touch her breasts.

Presson, 2014 WL 1669860, at *2 ("Defendant" altered to "Petitioner"; all other alterations in original).

         T.B. testified that incidents similar to what were described above occurred sixteen times between August 2007 and March 2009. Presson, 2014 WL 1669860, at *2. T.B. also testified about an incident when the Petitioner "showed her Playboy magazines and a vibrator." Id. at *3. T.B. recalled that the Petitioner "had the Playboy magazines on his headboard by his bed" and that "he pulled the vibrator out of a dresser drawer and asked [her] if she wanted to see it." Id. T.B. testified about another incident when the Petitioner "put his lips on her buttocks to suck out a bee sting." Id. at *3, 5. T.B. further testified that the Petitioner showed her "a pornography [television] channel" while she and the Petitioner were at a cabin belonging to one of the Petitioner's friends. Id. at *3.

         T.B. claimed "that she did not tell anyone about the incidents until she told her mother the summer before her eighth grade year." Presson, 2014 WL 1669860, at *3. T.B. recalled that after she told her mother, "they went over to S.W.'s house and talked to a law enforcement officer." Id. at *4. T.B. then gave statements to an investigator on July 29, 2009, and August 1, 2009. Id. T.B. testified that she told her mother because she knew the Petitioner would "begin picking her up from school again" when the school year started and that "she 'didn't want to be around him anymore.'" Id. at *3.

         T.B. testified that "during her seventh grade year, " she told her boyfriend that "she 'had been touched by somebody.'" Presson, 2014 WL 1669860, at *3. T.B.'s boyfriend "told his mother, who went to [T.B's] principal." Id. T.B. told her principal that "a person named 'Daniel' had raped her, but [she claimed] it was a 'random' name she had picked 'out of the air.'" Id. at *4. T.B. eventually told her principal "that she had '[done] this to get attention and sympathy'" and that she "'was fine about it so that everything would be dropped'" and she "'wouldn't get in any trouble.'" Id. at *3-4 (alteration in original).

         T.B. admitted that she told the investigator that the Petitioner "did not 'try to put his finger or anything else inside of [her].'" Presson, 2014 WL 1669860, at *4 (alteration in original). T.B. explained that she was confused when she spoke to the investigator and that she did not realize that penetration included the Petitioner's having "put his fingers 'inside the lip [of her vagina]'" because "the genital area was hard for a twelve-year-old to understand and describe." Id. (alteration in original). T.B. also admitted that prior to having come "forward with her allegations against the [Petitioner], " she told a doctor in April 2009 that "she was not 'active sexually.'" Id. at *5.

         T.B. admitted to an incident when she threw her cell phone "across the room" at the Petitioner's house. Presson, 2014 WL 1669860, at *3. T.B. testified that she was "grounded for the summer" because of the incident, that she had her cell phone "taken away, " and that she had "to forego a concert she wanted to attend." Id. at *5. T.B. further testified that "it was within one or two days of being grounded . . . that she told her mother about the incidents involving physical contact with the [Petitioner]." Id.

         During a search of the Petitioner's home, police officers found "a vibrator, a white shirt that had cutoff sleeves and was cutoff on the bottom, some Playboy magazines, three blue disposable razors, [and] an electric razor." Presson, 2014 WL 1669860, at *6. The vibrator and the t-shirt "were found in a dresser near the master bedroom." Id. The Playboy magazines "were found in the headboard of the bed in the master bedroom." Id. On the whole, the items seized during the search "were found in places T.B. had indicated" in her statements to the investigator. Id. Subsequent forensic testing revealed "a DNA profile partially matching that of T.B.'s" on one of the disposable razors seized from the Petitioner's house. Id. at *7.

         Dr. Lisa Piercy, "a child abuse pediatrician" who "worked primarily at the Child Advocacy Center in Jackson, Tennessee, " testified that she interviewed and examined T.B. Presson, 2014 WL 1669860, at *6. When asked about what had occurred with T.B.'s principal, Dr. Piercy responded "that T.B.'s accusation of rape and the subsequent recant was consistent with the behavior of a sexually abused child." Id. Dr. Piercy testified that T.B. had previously been diagnosed with "oppositional defiant disorder ('ODD')" and that it was "'possible' for a child with ODD to falsely accuse someone of rape." Id. at *6-7. However, Dr. Piercy also testified that "she had seen children who had been sexually abused display behaviors consistent with those attributed to ODD." Id. at *7.

         The Petitioner's friend who owned the cabin where T.B. claimed that the Petitioner had shown her a pornographic television channel testified that the channel was "'supposed to be locked out.'" Presson, 2014 WL 1669860, at *7. He further testified that, when he arrived at the cabin, the Petitioner "was unloading groceries" and the television was not on the pornographic channel. Id. Another of the Petitioner's friends testified to contradict S.W.'s allegations. Id.

         The Petitioner called T.B.'s boyfriend and the principal of her school as witnesses. Presson, 2014 WL 1669860, at *7. T.B.'s boyfriend testified that she told him "she had been raped by someone at school, " but "then changed her story and said it was the [Petitioner]" after their principal was told about the allegation. Id. T.B.'s boyfriend recalled that he "showed the principal [the] picture in the yearbook" of "the student that T.B. had originally identified as the person who raped her." Id. T.B.'s boyfriend further testified "she was '[n]ot that truthful really.'" Id. (alteration in original). The principal testified that when he questioned T.B. about the allegation, she "admitted that she had 'made the story up.'" Id. He further testified that "based on his dealings with T.B., he would 'not trust her with the allegations without following up extensively.'" Id.

         The Petitioner also called Dr. Tara Pedigo, a pediatrician who had examined the victim in April 2009. Presson, 2014 WL 1669860, at *8. Dr. Pedigo testified that T.B. "'denie[d] sexual activity of any kind'" during the examination. Id. Dr. Pedigo further testified that T.B. "was taking Zoloft for depression and ODD, " but that T.B.'s mother stated that "the treatments were not working." Id.

         Additionally, the Petitioner called Dr. Robert Kennon, a licensed psychologist, to testify "as an expert witness in the field of forensic psychology." Presson, 2014 WL 1669860, at *8. Dr. Kennon opined that "he had seen a lot of false reports of [sexual] abuse" and that such false reports were "often made to 'gain an advantage.'" Id. With respect to T.B.:

Dr. Kennon testified that he was in the courtroom when the victims testified, and he stated that, while he did not evaluate T.B. personally, the diagnosis for a child with ODD is the opposite diagnosis to that of a child who has been sexually abused. He stated that T.B.'s testimony lacked detail and that she did not testify to several of the factors related to sexual abuse. He stated that her responses sounded "rote" and "repetitious" and lacked the detail he would expect to hear from an abuse victim.

Id. Dr. Kennon further testified that "it would be 'odd' for [a sexual] abuser to [] give a house key to the parent of a victim." Id. However, Dr. Kennon admitted that it was possible for details to "'blur together'" when a child had been "'repetitiously abused'" and that "it would be important for an abuser to win trust with a victim or the victim's parents" to gain "access to the child." Id. at *8-9.

         III. Post-Conviction Hearing

         A. Trial Counsel

         Trial counsel's testimony was the primary focus of the post-conviction hearing. Trial counsel testified that he was retained to represent the Petitioner at trial and that the Petitioner also retained an outside investigative firm, Inquisitor, Inc., to investigate the allegations and to serve as "a jury consultant." Trial counsel further testified that he filed "numerous" pretrial motions and that the trial court granted "every pretrial motion" he filed. Trial counsel recalled that he "got along great" with the Petitioner and that the outcome of the trial "made [him] sick." But trial counsel stated that he "did everything [he] could think to do" in representing the Petitioner, and he could not "find anything [he] did" that was ineffective or contributed to the Petitioner's convictions.

         The bulk of trial counsel's testimony was spent discussing the possibility of an "economic motive" defense. Trial counsel explained that T.B.'s mother, Latosha D., [4]"was a part-time bookkeeper" for the Petitioner. The Petitioner believed that Ms. D. "had misappropriated . . . [or] had made charges on a company credit card that he hadn't authorized." Trial counsel thought that the Petitioner was not "even aware" of the alleged fraudulent charges until after he was arrested because the Petitioner was "the type of person that if he hired you to do something, he expect[ed] you to do it." Therefore, their theory was that Ms. D. "[p]reemptively" encouraged T.B. to make false allegations against the Petitioner to protect Ms. D. from being prosecuted for fraudulent charges that the Petitioner had yet to discover.

         For context, trial counsel testified that the Petitioner's wife had taken care of the "bookkeeping" for the Petitioner's sporting goods store until her death. Ms. D. took over that role after the death of the Petitioner's wife. Trial counsel testified that this role gave Ms. D. "[u]nfettered" access to the check book, credit card, and financial documents for the Petitioner's store. At some point, one of the Petitioner's employees told the Petitioner that he was concerned that "the bills weren't being paid" because "creditors were calling the business" and Ms. D. was "flippant" when the employee "fuss[ed] at her about it." According to trial counsel, Ms. D. "took the books to her home" after the Petitioner spoke to her about the issue, and she did not return them until after the Petitioner was arrested.

         Trial counsel testified that Ms. D. also had a key to the Petitioner's house. Trial counsel recalled that Ms. D, Ms. D.'s mother, and T.B. "went in [the Petitioner's] house and looked all around" the weekend before T.B.'s allegations were reported to the police. Trial counsel conceded that it was a "[f]air inference" that they "were looking for something to use against [the Petitioner] before [the] allegations were ever made." Trial counsel believed that he cross-examined T.B. about the fact that she had a key to the Petitioner's home. Trial counsel recalled that when Ms. D. returned the Petitioner's "books" and the key to his home, she also ...

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