Opinion
No. M2004-02642-CCA-R3-PC.
Assigned on Briefs October 26, 2005.
Filed February 16, 2006.
Direct Appeal from the Criminal Court for Davidson County; No. 2001-C-1889; Steve Dozier, Judge.
Judgment of the Criminal Court Affirmed.
Dwight E. Scott, Nashville, Tennessee, for the appellant, Johnnie W. Reeves.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Robert W. Wedemeyer, JJ., joined.
OPINION
Petitioner appeals the dismissal of his petition for post-conviction relief in which he contended (1) that trial counsel failed to cross-examine the six-year-old victim as to his competency as a witness prior to the victim's testimony at trial; (2) that trial counsel failed to effectively cross-examine witnesses and make timely objections; (3) that trial counsel failed to effectively investigate the case and subpoena necessary documents and witnesses; and (4) that the trial court failed to instruct the jury on all lesser-included offenses. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel's representation was deficient or that he was prejudiced by his trial counsel's performance. We accordingly affirm the judgment of the post-conviction court.
I. Background
Following a jury trial, Petitioner was convicted of two counts of aggravated child abuse, a Class A felony, and was sentenced as a Range I, standard offender, to twenty years for each count, to be served concurrently. In his direct appeal, Petitioner challenged the sufficiency of the convicting evidence and argued that the trial court erred in admitting certain photographs of the victim's injuries into evidence. Petitioner's conviction was upheld on appeal. State v. Johnnie W. Reeves, No. M2002-02371-CCA-R3-CD, 2003 WL 22004946, at *1 (Tenn.Crim.App., at Nashville, Aug. 26, 2003), perm. to appeal denied (Tenn. Jan. 26, 2004).
The facts surrounding Petitioner's conviction were summarized by this Court in the direct appeal as follows:
The defendant was convicted of two counts of aggravated child abuse of a child six years of age or less for choking the victim, W.R., with a dog leash and hitting him on his buttocks with a wooden board, both incidents occurring on June 16, 2000. The victim testified he was six years old at the time of trial and four or five years old when the events occurred. He stated that when the incidents occurred, he was living with his grandmother, his mother, and "Johnnie."
The victim testified that on one occasion while he and "Johnnie" were alone inside the residence, "Johnnie" placed a dog leash around his neck and instructed him to stick his fingers down his throat. "Johnnie" then yanked the dog leash around the victim's neck "four or five . . . maybe ten" times. The victim stated "[i]t hurt and felt like some blood was getting [sic] to . . . bust out." He then fell on the floor. The victim testified his neck was bruised as a result, and he denied causing the injuries himself.
The victim testified that on the same day, "Johnnie" spanked him on his buttocks with a black shelf from the entertainment center. He stated "Johnnie" spanked him with the board "[a] lot of times," and each time "Johnnie" spanked him, he fell on the floor. The victim further stated the spankings" hurt" and caused bruises on his buttocks. He testified" Johnnie" was the only person who ever spanked him with the board. Although the victim was unable to identify the defendant as "Johnnie" at trial, he stated only one person named "Johnnie" ever lived with his family.
Lydia Roberts, the victim's grandmother, testified that during the summer of 2000, the defendant and Pamela Roberts, her daughter and the victim's mother, dated, and the defendant lived with them for several weeks. She stated that on Thursday, June 15, 2000, she did not observe any bruises on the victim. On the morning of June 16th, the mother drove her to work while the victim was still sleeping. After the mother drove the grandmother back to her residence that afternoon, the mother, the defendant, and the victim went to a movie, and the grandmother only observed the victim from a distance while he was sitting inside the vehicle. The grandmother was sleeping when they returned to the residence later that night.
The grandmother testified that on Saturday morning, June 17th, while the victim was eating breakfast, she observed bruises in the shape of a hand print on the left side of the victim's face. She further observed that the inside of the victim's ear was purple, and there were scratches and bruises on his neck. When the grandmother attempted to question the victim regarding the injuries, he refused to talk about them. The grandmother testified the mother attempted to "explain away" the injuries by telling her that while the victim was outside, he became tangled in the dog's leash and fell. The grandmother stated that had the victim fallen after being caught in the leash, his knees and hands would have been scratched from the gravel in the driveway. She then called the Department of Children's Services (DCS) regarding the bruises on the victim's neck and her suspicions that the defendant caused the injuries, but DCS did not respond.
The grandmother testified that on Tuesday, June 20th, while helping the victim in the bathroom, she discovered bruises on his buttocks. She stated that "his whole bottom was bruised, up his back a little bit, and down a little lower on his legs." The victim then told her that the defendant had spanked him with a black shelf taken from the entertainment center. The grandmother stated the victim also informed her that his neck injuries were caused by a dog leash, which the defendant had placed around his neck. The grandmother stated she had two similar" thick, nylon-type" leashes, which she used when walking her dog. She testified that after the victim informed her about the causes of his injuries, she again called DCS, and a case worker responded. She further stated that the victim never indicated that his mother caused the injuries; rather, he identified the defendant as the sole perpetrator.
The grandmother testified the victim had not seen the defendant since June 2000. She stated that in June 2000, the defendant wore earrings, had a shaved head, and dressed differently. His appearance had changed at the time of trial.
Detective Jana Buse Fadigan, who investigated the allegations, testified she spoke to the defendant over the telephone on June 26, 2000. The defendant informed her that he believed the victim's mother caused the injuries. He stated that while he was in the shower, the victim became tangled in a leash while playing outside and sustained injuries to his face and neck. The defendant testified that when the mother returned home and discovered what the victim had done, she spanked him twice on the buttocks with her hand and sent him to his room.
Detective Fadigan testified she later interviewed the defendant at the police station on July 10th. During this interview, the defendant stated he was left alone with the victim for approximately two hours while the mother ran errands. While he was taking a shower, he heard a "gagging" noise. The victim then ran into the bathroom and attempted to vomit into the toilet. The defendant then retrieved a wet rag for the victim and set him on the couch where he watched television until the mother returned. The defendant informed the mother what the victim had done and returned to the shower. The defendant stated that while he was in the shower, he heard the mother spank the victim twice with her hands and with a black board from the entertainment center. The defendant denied spanking the victim.
Detective Fadigan testified she interviewed the victim outside of the presence of his mother and his grandmother. The victim informed her that "Johnnie" had caused the injuries.
Dr. Christopher Greeley, a pediatrician, testified he reviewed photographs of the victim's injuries. He described the bruises on the victim's buttocks as "extensive" and "quite deep." Dr. Greeley opined these injuries were unlikely self-inflicted or accidental. He stated the bruises on the victim's buttocks were consistent with being struck repeatedly by a board. He further stated the victim likely experienced discomfort in sitting or walking until the injuries healed.
Dr. Greeley testified the victim's bruises, which spanned around his neck, were consistent with a leash being pulled around his neck. He opined that these injuries were unlikely self-inflicted or the result of an accident. Dr. Greeley stated the force of pulling an object around a person's neck could cause the person's carotid artery and windpipe to collapse, which could result in either brain damage or death. Dr. Greeley further opined that the bruising to the victim's ear was consistent with being hit on the side of the head, and such bruising was rarely accidental.
Deborah Pigman, the DCS case worker who investigated the allegations, testified she initially interviewed the victim outside the presence of his mother and grandmother. During the interview, the victim informed her that while he and the defendant were alone at the residence, the defendant spanked him for sticking his fingers down his throat, kicked him, and choked him with the dog's leash. Pigman stated that in subsequent interviews, the victim never indicated anyone other than the defendant caused the injuries.
Pigman testified she was present during the detective's interview with the defendant. She stated the detective informed the defendant that he was the primary suspect regarding the allegations and made him aware of the time frame in which the injuries occurred. Pigman testified the defendant never told them that he was out of town when the incidents occurred.
Pamela Roberts, the victim's mother, testified that on Friday, June 16th, she left the victim alone with the defendant for approximately two and one-half hours while she ran errands. When she returned to the residence between 1:00 and 2:00 p.m., she observed bruises on the victim's face and neck. The mother stated that when she questioned the victim in the defendant's presence, the victim stated he had gotten tangled in the dog's leash. The defendant gave the mother the same explanation regarding the cause of the victim's injuries. The mother stated she, the victim, and the defendant went to the movies shortly after she drove the grandmother home from work and returned to the residence while the grandmother was sleeping.
The mother testified she did not observe the bruises on the victim's buttocks until Sunday, June 18th, after the grandmother had observed them. She stated that after the victim spoke to the police, he told her that the defendant had caused the injuries to his neck, face, and buttocks.
The mother testified that on the morning of June 16th, she spanked the victim three to four times on his buttocks with her hand. She stated the victim whined but did not cry. She further stated she did not spank the victim hard enough to cause the bruises. The mother denied ever spanking the victim with the black shelf.
The mother testified that when she confronted the defendant with the allegations, he admitted he caused the injuries. However, he stated she should admit to causing the injuries because she would receive a lesser sentence.
The mother stated that in June 2000, the defendant wore earrings, shaved his head, and appeared different than he did at trial. She further stated the defendant was the only person the victim referred to as "Johnnie."
The defendant testified he dated the victim's mother for a few months and spent the night at her residence on several occasions. He stated he and the mother broke up on Easter in 2000. The defendant stated that although he often played with the victim, he did not spank or otherwise discipline him. He further stated he observed the mother spank the victim on several occasions using her hands, a belt, and a black board from the entertainment center.
The defendant testified that on Easter Sunday, April 23, 2000, he observed an injury to the victim's neck, which was similar to the bruises depicted in the photographs. He stated the incidents to which he referred during the interview with the detective occurred a few weeks prior to Easter. The defendant maintained that when the detective interviewed him, she never informed him that she was referring to the events which occurred on June 16, 2000.
The defendant testified that on Tuesday, June 13th, he traveled to Bowling Green, Kentucky, to visit his father, who was remodeling a Wal-Mart store. On Friday, June 16th, the defendant, his father, Tyson Hall, and two other employees ate lunch together. After running errands, the defendant left Bowling Green at approximately 4:00 p.m. and arrived at his residence between 6:00 and 6:30 p.m. The defendant testified that on Sunday, June 18th, his cousins were killed in a car accident.
Wayne Raymond Reeves, the defendant's father, testified that from May until July 2000, he was in Bowling Green, Kentucky, remodeling a Wal Mart store. He stated the defendant visited him during the week prior to June 18th. On Friday, June 16th, Reeves, the defendant, and Tyson Hall, Reeves' supervisor, ate lunch together, and the defendant remained with Reeves until 3:00 or 4:00 p.m. Reeves stated he saw the defendant later that night at the Reeves residence in Tennessee. On June 18th, they discovered that two family members had been killed in a car accident.
Tyson Hall testified that while working at Bowling Green, he met the defendant and ate lunch with him and Reeves on a Friday. Although Hall could not recall the specific date, he stated that two days later on Sunday, Reeves informed him that he had a death in the family.
Johnny W. Reeves, 2003 WL 22004946, at ** 1-4.
II. Post-Conviction Hearing
Petitioner's trial counsel testified that he had been practicing law for approximately eighteen months when he was appointed by the trial court to represent Petitioner in the instant case. Counsel said that at the time of Petitioner's trial eighty to eighty-five percent of his practice consisted of criminal cases, and that he had tried one case involving drug-related charges before Petitioner's trial.
Counsel stated that he met with Petitioner and his family about ten times prior to trial. Counsel said that Petitioner was initially indicted on two counts of child abuse, a Class D felony. Just before Petitioner's trial date, the State offered to recommend a four-year sentence, to be served on probation after confinement of one hundred and twenty days, in exchange for Petitioner's pleas of guilty. Counsel said he discussed the State's offer with Petitioner's family at great length. Petitioner, with the support of his father, Raymond Reeves, chose to proceed to trial because Petitioner maintained he was out-of-town when the incidents were alleged to have occurred. After Petitioner's rejection of the proposed plea agreement, the State filed a superseding indicting charging Petitioner with two counts of aggravated child abuse, a Class A felony.
Counsel said that he focused his pre-trial investigation on Petitioner's alibi defense. He said that he relied on Petitioner's father to locate witnesses who would testify that Petitioner was in Kentucky at the time of the incidents, and Mr. Reeves' efforts resulted in the procurement of Tyson Hall as a defense witness. In addition, Petitioner said that he had called his mother from a telephone booth on the Tennessee/Kentucky state line on Friday, June 16, 2000. Counsel said that he and Petitioner drove to the state line, located the telephone booth, and secured the telephone number at that location. Counsel stated that he subpoenaed the telephone company's records for this location but could not locate any record reflecting Petitioner's telephone call. Counsel asked the family to try to secure the telephone records for their home telephone number, but the family was unsuccessful in locating any records.
Counsel said that when Petitioner told him that he had an alibi for the charged offenses, he verified that the State had not filed a written demand for notice of alibi as required by Rule 12.1 of the Tennessee Rules of Criminal Procedure. After discussing the matter with Petitioner and his family, Counsel said that he made a strategic decision not to disclose Petitioner's alibi prior to trial because he did not feel that the disclosure would prompt the State to dismiss the charges or enter into plea negotiations. Counsel said that the family decided that Petitioner's mother would not testify at trial, although counsel said she was available to do so.
Counsel said that he did not employ an investigator to assist him in preparing for trial. Counsel said that he did not interview Charlie Vick, but he did not believe Mr. Vick would have been a material witness. Counsel also said that he did not interview Dr. Christopher Greeley, the State's medical expert, prior to trial. Counsel stated that he did not challenge Dr. Greeley's testimony at trial concerning the severity of the victim's injuries because Petitioner's defense was based on an alibi, not on challenging the seriousness of the victim's injuries.
On cross-examination, counsel stated that he felt his decision to withhold disclosing Petitioner's alibi was very effective. Counsel believed that he had reviewed all of the State's discovery evidence and was adequately prepared for trial. Counsel said that the State initially refused to disclose certain information from the Department of Children's Services which the State did not feel was discoverable, but counsel demanded the entire file, and the State accommodated his request.
Counsel stated that Petitioner continued to refuse any offers of settlement after he was indicted on the greater offense of aggravated child abuse because Petitioner strongly believed he had a viable alibi defense. Counsel said that Petitioner's alternative defense was that the victim's mother, not Petitioner, inflicted the injuries. Counsel said that he recalled a discussion on the charge of lesser included offenses, but counsel said that he did not request a charge because Petitioner's defense was an "all or nothing" situation.
Petitioner testified at the evidentiary hearing that he had discussed his defense with counsel, and counsel told him that he did not want to disclose Petitioner's alibi prior to trial because the State would just change the date of the alleged offense. Petitioner said that he met with counsel about six times before trial. He provided counsel with a list of witnesses, but counsel told Petitioner that he did not need to call these witnesses at trial.
Petitioner said that counsel's assistance was deficient for failing to locate the telephone record of his call to his mother on June 16, 2000. Petition said that he and counsel drove to the state line and retrieved the telephone number from the pay phone that he used that day. Petitioner said that counsel told him that he had attempted to subpoena the telephone company's records, but the records "weren't available." Petitioner also stated that counsel trial to subpoena the telephone records for the Reeves' home telephone number, but the telephone company told counsel that they did not have any records.
Petitioner stated that counsel should have interviewed Charlie Vick because Mr. Vick could have testified that Petitioner stopped by Mr. Vick's house after he returned from Kentucky on June 16, 2000. Petitioner stated that there were other people who could have testified that they saw Petitioner in Kentucky during the week of June 13, 2000, but counsel told Petitioner that he did not need these witnesses.
Petitioner said that counsel should have questioned Pamela Roberts and Lydia Roberts about certain misstatements they made during their testimony on direct examination. Petitioner maintained that Pamela Roberts said that she "just barely" knew Mr. Vick, even though Mr. Vick was her ex-fiance.
On cross-examination, Petitioner agreed that he did not tell the investigating police officers that he was not in Tennessee when the incidents occurred. Petitioner said that counsel tried to locate Mr. Vick but could not find him.
Raymond Reeves testified that he did not know when the victim had incurred the injuries that supported the charges against Petitioner until his second meeting with counsel. Mr. Reeves said that he realized at that point that Petitioner had been staying with him in Kentucky until Friday afternoon, June 16, 2000. Mr. Reeves felt that counsel had not cross-examined the State's witnesses in the manner which they had discussed prior to trial. On cross-examination, Mr. Reeves said that he had not seen the indictment charging Petitioner with the offenses.
Brenda Reeves, Petitioner's mother, stated that she would have testified at trial that Petitioner called her from the telephone booth on the state line around 5:00 p.m. on June 16, 2000. Ms. Reeves said that she came to court on both days of Petitioner's trial, but counsel told her that her testimony was not necessary.
III. Standard of Review
A petitioner seeking post-conviction relief must establish his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). However, the trial court's application of the law to the facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, he must establish that counsel's performance fell below "the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In addition, he must show that counsel's ineffective performance actually adversely impacted his defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984). In reviewing counsel's performance, the distortions of hindsight must be avoided, and this Court will not second-guess counsel's decisions regarding trial strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel's alleged errors should be judged from counsel's perspective at the point of time they were made in light of all the facts and circumstances at that time. Id. at 690, 104 S. Ct. at 2066.
A petitioner must satisfy both prongs of the Strickland test before he or she may prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). That is, a petitioner must not only show that his counsel's performance fell below acceptable standards, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either prong will result in the denial of relief. Id. Accordingly, this Court need not address one of the components if the petitioner fails to establish the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
IV. Failure to Challenge the Victim's Competency as a Witness
At the beginning of the six-year-old victim's direct examination, and in the presence of the jury, the prosecutor questioned the victim about his knowledge of the roles of the trial court and attorneys, and whether the victim knew the difference between telling the truth and lying. The trial court also questioned the victim about his understanding of truth. At the conclusion of the line of questions, the trial court said, "[a]ll right; go ahead," and the prosecutor began his direct examination of the victim.
Petitioner argues that his counsel's performance was deficient because he failed to object to the process used by the trial court to ascertain the competency of the victim as a witness, and because counsel did not cross-examine the six-year-old victim on competency issues at a hearing outside the presence of the jury. Petitioner contends that counsel's failure to object to the trial court's determination that the victim was competent to testify precluded appellate counsel from raising competency as an issue on Petitioner's direct appeal.
Rule 601 of the Tennessee Rules of Evidence provides that "[e]very person is presumed competent to be a witness except as otherwise provided in these rules or by statute." "Virtually all witnesses may be permitted to testify: children, mentally incompetent persons, convicted felons." Tenn. R. Evid. 601, Advisory Commission Comment. Rule 603 of the Tennessee Rules of Evidence provides that "[b]efore testifying, every witness shall be required to declare that the witness will testify truthfully by oath or affirmation, administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so." The common law rule is that if a child witness "understands the nature and meaning of an oath, has the intelligence to understand the subject matter of the testimony, and is capable of relating the facts accurately," the child is deemed competent to testify. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); see also State v. Howard, 926 S.W.2d 579, 584 (Tenn.Crim.App. 1996), overruled on other grounds by State v. Williams, 977 S.W.2d 101 (Tenn. 1998).
Although counsel did not question the victim's competence to testify at trial, the trial court inquired about the victim's ability to understand the difference between the truth and a lie. The trial court asked the victim what happened when he lied, and the victim responded, "I get a spanking or get put in the corner." The victim acknowledged that it was "good" to tell the truth, and promised to tell the truth during his testimony.
Petitioner points to several inconsistencies in the victim's testimony to support his contention that the victim was not a competent witness. The victim, for example, testified at one point that his mother did not spank him, but stated during cross-examination that his mother may have injured him when she spanked him, but he "never looked." When asked during cross-examination if his mother caused the injuries in the photographs taken by the investigating officers after the incident, the victim responded, "well, I could have been mistaken on most of `em [sic]. They kind of look like her hand prints." In addition, the victim was unable to identify Petitioner as the man who assaulted him whom the victim knew as "Johnnie."
All of these issues go to the credibility of the witness, and the inconsistencies and hesitancies displayed during the victim's testimony were ably highlighted by Petitioner's counsel on cross-examination. The victim's confusion over details does not address his competency to testify but goes to the weight and value of his testimony, which are factors reserved for resolution by the trier of fact. "So long as a witness is of sufficient capacity to understand the obligation of an oath or affirmation, and some rules does not provide otherwise, the witness is competent." State v. Caughron, 855 S.W.2d 526, 538 (Tenn. 1993).
The post-conviction court found that "the Court recalls the exchange between [the prosecutor] and the victim and remembers the witness as one who demonstrated a capacity to testify in a competent manner. The court, in addition recalls questioning the victim for competency and found satisfactory evidence of his ability to understand and comprehend an oath."
Accordingly, the post-conviction court found that Petitioner failed to establish that his counsel's assistance in this regard was deficient, or, if deficient, that Petitioner failed to establish prejudice.
On direct appeal, this Court found that notwithstanding counsel's failure to object to the victim's competency examination at trial, "the victim testified he knew the difference between the truth and a lie; that he would be punished for telling a lie; and that he would tell the truth while testifying." Johnnie W. Reeves, 2003 WL 22004946, at *5.
Based on our review, we find that the evidence does not preponderate against the post-conviction court's finding that Petitioner failed to establish that his counsel's performance was deficient, or, if any deficiency existed, that he was prejudiced by his counsel's failure to object to the process used to determine the victim's competency as a witness. Petitioner is not entitled to relief on this issue.
V. Failure to Effectively Cross-Examine Witnesses and Make Timely Objections
Petitioner argues that counsel's performance fell below reasonable standards because he failed to cross-examine the State's witnesses about inconsistencies in their testimony and failed to make timely objections to certain questions posed by the State. Specifically, Petitioner points to examples of alleged deficient conduct during the testimony of Lydia Roberts, Officer Fadigan, Dr. Greeley and Ms. Pigman.
We begin our analysis by noting that counsel's strategic decisions during cross-examination are judged from counsel's perspective at the point of time they were made in light of all the facts and circumstances at that time. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Further, the distortion of hindsight must be avoided even when a particular trial strategy or decision ultimately proves unsuccessful. Petitioner's counsel testified at the post-conviction hearing that he made a strategic decision to avoid disclosing any indication of Petitioner's alibi during the State's case-in-chief and conducted his cross-examination of the State's witnesses accordingly. Counsel testified:
My — I recall my thought at the time, as far as strategy, was that I didn't know that the State would come down on their offer; I certainly did not expect the State to dismiss the case based on [the proffered alibi evidence]. And so, I had to weigh that against the . . . potential surprise at trial of . . . bringing that up and — and potentially not having the State ready or prepared to . . . rebut that.
The thrust of Petitioner's post-conviction challenge is that he believes that his counsel was ineffective because he did not subject the State's witnesses to "a more thorough and vigorous cross-examination." There were inconsistencies, for example, in Lydia Roberts testimony concerning when she saw Petitioner and Pamela Roberts on June 16 and June 17, 2000, and when she first noticed the victim's injuries. Our review of the trial transcript shows that counsel cross-examined Ms. Roberts at length about her conflicting statements to the Department of Children's Services, her inconsistent testimony concerning when she first noticed the victim's injuries, and her inconsistent testimony about when she had seen Petitioner and Pamela Roberts on June 16 and June 17, 2000. Based on our review, we conclude that Petitioner has failed to show that his counsel's cross-examination of this witness was deficient.
Petitioner contends that counsel failed to effectively bring out Officer Fadigan's lack of experience in child abuse cases on cross-examination. Officer Fadigan, however, candidly stated during her direct examination that she did not have any specialized training in conducting an investigation of possible child abuse, and that she was on temporary assignment to the child physical abuse unit of the Metro Nashville Police Department when she interviewed Petitioner.
Petitioner also argues that counsel's conduct was deficient because he was not successful in "bringing out" during Officer Fadigan's cross-examination that during his interviews with Officer Fadigan, Petitioner "was referring to an entirely different date when he related to [Officer] Fadigan [about] hearing the victim's mother spanking him." According to the trial transcript, however, counsel did question Officer Fadigan on cross-examination about the possibility that Petitioner was referring to incidents other than the one which caused the victim's current injuries when she interviewed him and secured an admission from Officer Fadigan that Petitioner had not specifically mentioned the date, June 16, 2000, during his interview. At the post-conviction hearing, counsel testified that he made a strategic decision not to disclose Petitioner's alibi for June 16, 2000, and conducted his cross-examination accordingly. Counsel's tactical decision not to delve more deeply into this line of questioning was reasonable in light of his overall trial strategy. Based on our review, we cannot conclude that counsel's performance fell below reasonable standards during the cross-examination of this witness.
On cross-examination, Petitioner's counsel asked Officer Fadigan, "[a]nd, I just want to be certain that . . . your testimony was that there was somebody who did say they caused the injuries, correct?" Officer Fadigan responded, "correct" and testified that this person was not Petitioner. The State at this point objected to Officer Fadigan disclosing the name of this person as inadmissible hearsay, and the trial court sustained the objection. Petitioner contends that counsel's failure to challenge the trial court's ruling "missed the opportunity to present to the jury who this other person was." Petitioner did not provide any evidence at the post-conviction hearing as to the identification of the person who was the subject of this exchange. We cannot conclude based on the record before us that counsel did not make a strategic decision not to pursue this line of questioning with Officer Fadigan or that counsel's performance in this regard was deficient.
Petitioner argues that counsel's performance was deficient because he did not cross-examine Dr. Greeley or object to the State's use of leading questions during Dr. Greeley's direct examination. The post-conviction court found that Petitioner had failed to demonstrate that his counsel's representation was deficient in this regard, and that, based on a review of the trial transcript, Petitioner failed to demonstrate that he had been prejudiced by any leading questions asked of Dr. Greeley during his direct examination.
Counsel testified at the post-conviction hearing that Petitioner's defense was that he did not inflict the victim's injuries, and that challenging Dr. Greeley's description of the severity of the injuries would have been inconsistent with Petitioner's defense. Petitioner's counsel testified that Petitioner strongly believed that he had a viable alibi defense, and Petitioner, Mr. Reeves and Mr. Hall all testified that Petitioner was in Kentucky on Friday, June 16, 2000, when the victim's injuries were incurred. Regardless of whether or not counsel's strategic decision not to cross-examine Dr. Greeley was, in hindsight, perhaps not as successful as Petitioner might wish, counsel's approach to the cross-examination, or lack thereof, of the State's witnesses was reasonable in light of Petitioner's alibi evidence and counsel's strategic decision not to disclose Petitioner's alibi prior to the presentation of Petitioner's proof. Further, the evidence does not preponderate against the post-conviction court's finding that counsel's failure to object to any leading questions during Dr. Greeley's direct examination affected the outcome of Petitioner's trial.
Petitioner argues that Dr. Greeley testified beyond the scope of his expertise when he testified about the aging, coloration, depth and extent of the victim's bruising. Petitioner contends that counsel's performance was deficient because he failed to contemporaneously object to this testimony thereby precluding appellate review of the issue. See Johnny W. Reeves, 2003 WL 22004946, at *6.
Dr. Greeley testified that he was a pediatrician with Vanderbilt Hospital, an associate professor of pediatrics at Vanderbilt University, and Director of the Child Abuse and Neglect Program. Dr. Greeley stated that he had testified as an expert in approximately six cases involving suspected child abuse, two of which were criminal prosecutions. Based on Dr. Greeley's experience, the trial court certified him as an expert in the area of pediatric medicine.
On direct examination, Dr. Greeley testified that he saw approximately five hundred children annually in his general pediatrics practice, and approximately forty children who evidenced signs of child abuse or neglect. Petitioner contends that counsel should have challenged Dr. Greeley's "expertise to testify in the area of bruising," and his methodology in arriving at his conclusions concerning the extent and cause of the victim's bruises. Counsel's strategic decision not to challenge Dr. Greeley's testimony was reasonable based on the circumstances existing at the time the decision was made. Moreover, Petitioner does not provide any basis in support of his position that a pediatrician is not competent to testify as to childhood injuries. Based on our review, we conclude that Petitioner has failed to show that he was prejudiced by counsel's failure to challenge Dr. Greeley's expertise "in the area of bruising."
Deborah Pigman, a child protective services case manager with the Department of Children's services, testified at trial that she interviewed the victim, Lydia Roberts, and Pamela Roberts concerning the victim's injuries. On cross-examination, counsel asked, "[a]nd do you recall an entry in your report that stated that Pamela Roberts is the one who spanked [the victim]?" The State objected on the basis of "hearsay, speculation, foundation," and the trial court sustained the objection. Petitioner argues that counsel should have challenged the trial court's ruling or attempted to introduce Ms. Pigman's report containing this information into evidence at trial. Petitioner, however, did not present any evidence at the evidentiary hearing in support of his claim. Moreover, Pamela Roberts testified at trial that she spanked the victim with her hand on the morning of June 16, 2000, before she left the house to run errands. Based on our review, we conclude that Petitioner has failed to show his counsel's representation was deficient in this regard or that Petitioner was prejudiced.
Petitioner cites numerous points during the direct or redirect examination of the State's witnesses where he contends counsel should have objected to a particular line of questioning, including counsel's failure to object to certain portions of Ms. Pigman's testimony on hearsay grounds, failure to object to Ms. Pigman's and Dr. Greeley's responses which were speculative in nature, and failure to object to the State's redirect examination of Lydia Roberts concerning Petitioner's appearance as outside the scope of cross-examination. We have carefully reviewed the examples cited by Petitioner in light of the record as a whole and counsel's trial strategy. We conclude that the evidence does not preponderate against the post-conviction court's finding that Petitioner has failed to show that his counsel's performance was deficient in this regard, or that he was prejudiced by his counsel's performance in this regard. Petitioner is not entitled to relief on this issue.
VI. Failure to Effectively Investigate the Case and Subpoena Necessary Documents and Witnesses
Petitioner argues that counsel's assistance was ineffective when he failed to subpoena the telephone records for the pay phone at the Tennessee/Kentucky state line and the records for his mother's telephone number in Ashland City in order to corroborate his alibi. Counsel testified at the post-conviction hearing that he and Petitioner drove to the telephone booth which Petitioner used to make his telephone call on June 16, 2000, and retrieved the phone number. Counsel said that he subpoenaed the records for that telephone number, but no records were found. Counsel could not remember whether he subpoenaed the records for the Reeves' home telephone number after the family was unsuccessful in finding any records documenting the call. Petitioner, however, testified that counsel told him to try to get the records for the Ashland City telephone number, and that if he was unsuccessful, then counsel would subpoena the records. Petitioner explained, "[a]nd when we couldn't get them, they said that they wasn't [sic] going back that far, then [counsel] tried to have them subpoenaed. And [counsel] told us that they didn't have [the records]." The post-conviction court specifically credited counsel's testimony on this issue. The evidence does not preponderate against the post-conviction court's findings that counsel's inability to secure the telephone records did not reflect deficient conduct.
Petitioner also argues that counsel's assistance was deficient because he failed to interview Dr. Greeley prior to trial concerning his review of the victim's injuries. Counsel admitted at the post-conviction hearing that he did not interview Dr. Greeley and could not remember whether he saw Dr. Greeley's report prior to trial. Counsel testified that he "looked at this case as — I think is typical in these cases — you either have a client who did what was alleged, and the issue is the severity and does it rise to . . . aggravated child abuse. But that wasn't really our issue. . . . I mean our issues was that . . . [Petitioner] did not do this, period." Counsel testified that his trial strategy was based on Petitioner's alibi defense, and, alternatively, that Pamela Roberts inflicted the victim's injuries. Under either scenario, Counsel believed that interviewing Dr. Greeley concerning his potential medical testimony was unnecessary.
A defendant's counsel has a duty to conduct a reasonable investigation during the preparation for trial "or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S. Ct. 2052. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. Based on our review of the record, particularly in light of Petitioner's alibi defense, we cannot conclude that counsel's decision not to interview Dr. Greeley prior to trial was unreasonable under the circumstances existing at the time the decision was made. Moreover, even if counsel was deficient in this regard, Petitioner has failed to show that the results of the trial would have been different if he had interviewed Dr. Greeley prior to trial or that a pre-trial interview would have changed Dr. Greeley's testimony at trial. See id. Petitioner is not entitled to relief on this issue.
VII. Lesser Included Offenses
Petitioner argues that the trial court erred in failing to charge the jury on the lesser included offenses of knowing and reckless aggravated assault, knowing and reckless assault, attempted aggravated child abuse, and misdemeanor reckless endangerment. The State argues that Petitioner has waived this issue under Tennessee Code Annotated section 40-30-106(g).
The trial transcript reflects that counsel did not submit a written request for an instruction on any specific lesser included offense, although he orally requested on the record an instruction on the offense of child abuse as a lesser included offense of aggravated child abuse. Counsel suggested that the only other lesser included offense that might be appropriate was facilitation of aggravated child abuse, but he did not pursue the issue. The trial court stated at the end of the discussion:
Now, the other question, I think I'll — I mean, there's a whole lot of cases that talk about what are lesser included offenses on [sic] aggravated child abuse and there are cases that mention that there are others. I mean, obviously — other than what's been mentioned here. [Counsel's] not making any request for any others, other than the child abuse, and, obviously, that would be charged because the Jury, I think, would have to make the determination obviously, is [Petitioner] the one that perpetrated this, which is the main issue. But are these instrumentalities that are alleged in the situation that they were allegedly used, are they deadly weapons? And that would differentiate aggravated child abuse from child abuse. So that lesser included offense would be charged and — as well as the alibi instruction.
Accordingly, the jury was instructed only on the offense of child abuse as a lesser included offense of aggravated child abuse.
At the post-conviction hearing, counsel testified that he recalled the discussion with the trial court on lesser included offenses, but he stated that he did not request an instruction because it was an "all or none" situation. Counsel said that Petitioner's defense was not based on whether he had, in fact, committed a less serious offense, but was based on his assertion that he had not committed any offense at all.
The post-conviction court found that Petitioner had waived this issue when he failed to submit a written request for an instruction on lesser included offenses at trial as required by Tennessee Code Annotated section 40-18-110(c). Although Petitioner did not raise this issue under his ineffective assistance of counsel claim, the post-conviction court also found that counsel's conduct in this regard did not fall below reasonable standards. The post-conviction court specifically accredited counsel's testimony on this issue and found that "[t]rial counsel testified that he and the petitioner were in agreement that special jury instructions should not be requested since the strategy was that no abusive act was committed by the petitioner."
Absent certain circumstances not applicable in Petitioner's case,"[a] ground for [post-conviction] relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented." Tenn. Code Ann. 40-30-106(g). Tennessee Code Annotated section 40-18-110 was amended in 2001 to provide that appellate review of jury instructions on lesser included offenses is precluded if the issue is not presented in writing to the trial court for determination prior to the trial court's charge to the jury. Id. 40-18-110(c). The amendments govern all trials conducted on or after January 1, 2002 and thus were in effect at the time Petitioner's trial commenced on January 7, 2002. Id. 40-18-110, Compiler's Notes.
We are aware that this Court has split as to whether section 40-18-110(c) violates a defendant's right to trial by jury. Compare State v. Robert Page, No. W2003-01342-CCA-R3-CD, 2004 WL 3352994, at *14 (Tenn.Crim.App., at Jackson, Aug. 26, 2004), perm. to appeal granted (Tenn. Jan. 18, 2005) ("[W]e are constrained to hold that the waiver provision of Tennessee Code Annotated section 40-18-110 is an unconstitutional abrogation of a criminal defendant's constitutional right to have the jury charged on all offenses included with the indicted offense and supported by the proof adduced at trial.") with State v. Robert Eugene Hall and Henry Lee Dixon, No. M2003-02326-CCA-R3-CD, 2005 WL 292432, at *6 (Tenn.Crim.App., at Nashville, Feb. 8, 2005), no perm. to appeal filed (The right to appeal the trial court's failure to instruct on a specific lesser included offense is waived if a defendant does not request such an instruction on the record prior to the trial court's charge to the jury.); see also State v. Nesha Newsome, No. W2002-01306-CCA-R3-CD, 2003 WL 23100597, at *6 (Tenn.Crim.App., at Jackson, Dec. 30, 2003), perm. to appeal denied (Tenn. May 24, 2004) (Addressing the issue on the merits even though waived under Section 40-18-110(c)).
Nonetheless, Petitioner failed to present this issue for determination when presented with the opportunity to do so, whether to the trial court under Hall, or on direct appeal under the Page harmless error analysis. Tennessee Code Annotated section 40-30-106(g) thus precludes Petitioner from challenging the trial court's instructions to the jury on lesser included offenses in a post-conviction forum.
CONCLUSION
After a thorough review of the record, we affirm the judgment of the post-conviction court.