# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997
EDDIE CURT DAVI S, ) C.C.A. NO. 03C01-9702- CR-00064 ) Appe llant, ) ) ) HAMILTON COUNTY VS. ) ) HON . STEP HEN M. BE VIL STATE OF TENNESSEE, ) JUDGE ) Appe llant. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : KENNETH F. I RVINE, JR. JOHN KNOX WALKUP 606 W. Main Street, Sui te 350 Attorney Generaland Reporter P.O. Box 84 Knoxvill e, TN 37901-0084 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 BILL COX Distri ct Attor ney General BATES BRYAN, JR. Assistant Distri ct Attor ney General Court Buildi ng 600 Market Street Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 See State v. Edd ie Cu rt Da vis , C.C.A. No. 03C01-9109-CR-00295, Hamilt on County (Tenn. Crim . App., Kn oxville, Aug . 26, 1992 ), perm. to appeal de nied (Tenn. 1992).

2 The pro se petition also inc luded an issue co ncernin g the use of hears ay testim ony at trial. The Petiti oner chose not t o pursue thi s issue at the post-convi ction heari ng. As such, we wi ll not address it in thi s opinion. -2-



# OPINION

The Petitioner, Eddie Curt Davi s, appeals as of right pur

suant to Rule 3 of the Tenn essee Rules o f Appella te Proce dure from the tr ial c ourt’s d enial o f his petiti on for post-co nviction relief. On Nove mber 30 , 1990, a Ha milton Cou nty jury found the Petiti on er guilt y of two count

s of aggravated rape and one count of aggravated sexual battery. Th e trial court sentence d him to thirty years imprisonmentfor each agg ravated rape a nd fifteen ye ars f or the aggravated sexual battery. The fifteen-year sentence was ordered to run consecuti ve to the
concu rrentaggravated r ape sentences, r

esulti ng in an effective term of imprisonmentof forty-five yea rs. His co nviction s were affirme d by this Court on Aug u st 26, 199 2, and the Tenn essee Supre me C ourt den ied perm ission to
a ppeal on December 28, 1992. 1 The Petiti oner fil ed a pro se petition for post convicti on relief

on January 7, 1993, which was amended with the assistance of counsel on February 15, 1996. In t he petiti on for post- convicti on relief , he argues thathis due process rights wer e violated by convicti on of an offense for which the statute of limitations had exp ired and that he was deni ed effective assistance of counsel at trial. 2 The trial court conducted an evidentiary hearing on Apri l 1 and May 20, 1996. On June 25, 1996, the t rial cour t issued an or

der denying t he petition in pa rt and gra nting it in part. W e affirm the judgm ent of the tria l court.3 It is the policy of this Court no t to identify by nam e any m inor victim of sexu al offens es. There fore, the vic tims in this case w ill be referred to as “J.M .,” “S.M.,” or “th e victims .” -3- To facilita te our discussion of the issues, we begin with a brief su mma ry of the facts surrounding t he offenses. On November 29, 1989, the Petiti oner was indict ed by prese ntmen t on five cou nts of agg ravated ra pe. The a ll eged vi cti ms were the minor children of hi s girlfr iend, Rebecca Harris. 3 The o ffenses were alleged to have occurr ed between September of 1983 and January of 198 9
. J.M., a young male, w as alleged to have be en pen etrated a nally and fo rced to perform oral sex on t he Petiti oner. S.M., a you ng female , was alleged to h ave been penetrated vaginally, forced to pe rform oral sex and to have or al sex performed upon her.

The Petiti oner’s trial was hel d from November 28 to November 30, 1990. At trial , both vi ctims test ified concerning sever al instances of sexual abuse. The of fense s were alleged to have occurred whil e the children’s mother, Rebecca Harris, was at work. Given the young age of the vi ct ims, they were not able to identify specific da tes on w hich the a buse h ad occ urred. Instead, they ident ified the abuse mainly accor ding to whi ch house they were livi ng in atthe time of t he abuse. At the cl ose of proof, the State el ected to proceed on t he presen tments
as charging that the of fenses had occu rred betwee n Septem ber, 1984 an d July, 1986 in a house on McCahill Road in Red Bank.

The State also p resen ted exper t med ical test imon y at trial. D r. David Tepper exami ned S. M. i n August of 1989. At t hat t ime, S.M. ’s hymen was not intact. The examination of S.M. reveal ed evidence of repeated penetr

ation of h er vagina. Dr. George Winterer examined J. M. in Aprilof 1989. The examinat ion-4-

of J.M. revealed not hing remarkableabout his r ectum and no evidence of penetrati on. Dr. Winterer testified , howe ver, tha t his finding s were not surprising given the amount of time whi ch had passed since t he alleged penet ration.

The Stat e also offered testi mony from medical and l aw enforcement personnel regardin g statem ents m ade to the m by the victims. These statem ents echoed the vict ims’ test imony at trialconcerning t he instances of sexual abuse. In addition, th e moth er of the victim s, Rebe cca Ha rris, testified ab out statem ents made to her by her

children concerning t he sexual abuse. Harris al so testi fied that the Petit ioner admitted to her t hat he had had sex with the vict ims.
Although the Petit ioner did n ot testify at t rial, he o ffered te stimony fr om several witnesses, all of who m were his relatives. These wit nesses testi fied that they never noticed anyt hing unusual about the Pe titioner’s relati onship wit h the vic tim s. The witnesses al so indicated that they , not the Pet itioner , babysat t he victims while Rebecca Harris was at work.

After consideri ng the proof, the jury acquitt ed the Petit ioner of t he charges involv ing J.M., specifically the all egation s that the Peti tioner anal ly raped J. M. and forced J.M. to perform o ral sex upon h im. The jury found the Peti tioner guilty as charged of vaginally raping S.M . and forcing her to p erform ora l sex upon him
. The jury found the Petitioner g uilty of the l esser incl uded offense of aggravated
sexua l bat

ter y wi th regardto t he cha rge t hat h e per for med ora l sex

upon S. M.

On January 7, 1993, the Petit ioner filed a pro se petiti on for post- convicti on relief, arguing that

his conviction for agg ravated sexua l battery violated his due4 The Petiti oner did not pursue all egations number four and five, that counsel refused to al low him to testi

fy and tha

t counsel failed t

o raise vi able issues ondirect ap peal, i n this appeal from the tri al court’s or

der granti ng his petition i n part and denying it in part.Thus, we will not address t hose allegat ions in this opini on. -5- process rights and that defense counsel was i neffective. Counsel was appointed and amended the petit ion on February 15, 1996. Through the amended peti tion, the Petiti oner argued that his tri al attorney , Hank H ill, rendered ineffective assistance of counsel in a number of ways: (1) That counsel failed to inves tigate the c ase fully an d failed to interview al l potential defense witnesses; (2) that counselfailed to present expert medical evidence to rebut the State’s medi cal proof concerning the physical condit ion ofS.M.; (3) that counselfai led to emphasize the i nconsistenci es in the testimony of the vi ctims; (4) that counsel refused to a llowhim to testif y at jury- out hearings; and, (5) t hat co unsel failed to raise several vi able issues on direct appe al. 4 The Peti tioner al so argued that the statute of li mitations for aggravated sex ua l battery had e xpired prior to h is bein g cha rged. A s such , he co ntend ed tha t his conviction for

that offense vi olated his due process rights.

The trial court

conducted an evidentiary heari ng on the petition f or post convicti on relief on Apri l 1 and May 20, 199 6. On M ay 20, 19 96, the S tate conceded that t he Pe ti ti oner had been imp ro perly conv icted of aggravated sex ual battery after the sta tute of limitatio ns had expired. A ccording ly, the trial court granted the po st-con viction p etition in that reg ard an d vaca ted the Petition er’s convicti on for the aggr avated sexualbattery of S.M. This ruling i s not chall enged in this appeal and, t herefore, we will not addressthe statu te of li mitations issue in this opinion.-6- At the post-convi ction heari ng, the Peti tioner testif ied that d efense counsel conducted plea bargaining negotiati ons and receive d an offer of thirt y years. The Petiti oner declin ed this offer, maintaini ng that he was i nnocent. He stated that he wanted to testify a t trial, but defense counseladvised agai nst it given that he had a prior

cr iminal record which wouldhave been admitt ed for impeachment purposes. Had he testif ied at trial, he would have i nformed the jury abou t a bicycle accident which S.M. had that caused her to bl eed from her vaginalarea. He would a lso have tes tified that he w alked in o n J.M., S.M ., and their h alfbrother while they were in b ed together w earing only their unde rpants. In addition, he would have t estif ied that h e heard Rebecca Harri s screaming one ti me that

she ha d caug ht J. M. and S.M. doing “ [s]tuf f they don’ t supposed to be doing that’ s si ste r an d broth er. ” On cro ss- exa mi nat ion, the Pet itioner admitted thatalthough defense counsel adv ised aga inst his testifying , the choic e as to whether to testify

was his to make.

The Petiti oner also of fered the testimony of s everal rel ativ es. They testif ied that defense counsel did not talk with them prior t o the day of tri al. Missy Strickl and, the Pe titioner’s niece, testifi ed that S.M. had a bicycle acci dent which caused her to bleed from her vaginal area . Diane Ellenbo ck and R obin W ebster, the Petitioner’ s siblings, bot h testifi ed to suggestive behavior between Rebecca Harris and the vic

tims which t hey de eme d inappropri ate. Joann Dunnin g, the Petiti one r ’s mother, echoed the testimony of Ell enbock and W ebster. These witnessesand o ther re latives a ll testif ied that t hey witnessed S.M. masturbating repeatedly. They all also test ified that they never witnesse d any unusual behavior

between the Peti tioner and the vic

tims. On cross- examination, Dunning-7-

and Webster admitted that they had been called as witn esse s at the Petition er’s trial.

The Petiti oner’s defens e attorney from tri al, Hank Hil l, test ified at the postconvicti on hearing. Hi ll stated that he began practici ng law in 1978and beca me an initi al member of the publ ic defender’ s office in Hamilton Count y when it was establi shed in 1989. Hil l recall ed speaking wit h the Petit ioner several t imes prior to trial. H ill stated th at either he or his i nvestigator, Alan Mi ller, interv iewed the State ’s witnes ses a nd eve ry pote ntial wit ness suggested by the Petitioner. Accor ding to Hi ll, Mi ller v isitedthe vari ous homes lived i n by the Peti tioner and the victims over the yea rs alleged in the pre sent me nts. Hil l spoke wit h the medical expert who had conduc ted the e xamina tion of S. M., Dr. Tepper, and asked him about thepossibil ity of a bicycl e accident causi ng the tearing of S.M .’s hymen. Dr. Tepper responded that thestate of S.M.’s hymen was not consistent with a bicycle injury.

The Petiti oner maintaine d his innocen ce and Hill, given his investi gation of the case, decided t o put forward a defense that al though S.M. may have been penetrated, it was not th e Petiti oner who had d one so. Hill recalled tha t there
were insinuat ions of sexual a buse of S.M. by her half- brother wholived i n Ohio. Thus, Hill testifie d that h e did not feel a n eed to attem pt to co ntradic t Dr. Te pper’s testimony

about th e condition of S.M.’ s hymen through the use of a defense expert.

On cross-examinat ion, Hil l freel y admitted t hat he was overburdened with
cases during the t ime that he i nvestigated and tried the P et itioner’s case . Hill-8-

testif ied that hi s caseloa d was well i n excess of t he American Bar Associat ion guidelines. Acco rding to Hill, t he newly-established publi c defender’s offi ce simp ly did no t have th e reso urces wit h which to h ire enou gh staff m embe rs to main tain reason able wo rklo ads. Hi ll a dmitted that the Pe titioner would have receive d mo re atten tion from a retain ed atto rney th an he receive d from Hill.

In spite of his excessive caseload, however, Hil l testified that the Petit ioner received quality

representat ion. Hil l did not believe t hat the outcome of the tri al would have been diff

erent had he not b een overbur dened w ith work . He stated thathe spoke with the Pet itioner as much as he needed to and ful ly investigated the case. He testified that he w as able to develop enoug h eviden ce to put forth the Pet it ion er’ s th eor y at tr ial , na me l y that anot her indiv idual had been responsible for any sexualabuse of the victi ms.

After consideri ng the evidence presented at the post-conv icti on hearing, the trial cou rt entered detailed find ings of fac t and con clusions of law. In short, the trialcourt di d not findthe Petit ioner’s p roof to be per suasive and i nstead accreditedHank Hi ll’s testi mony in all respects. With respect to t he allegat ion thatdefense counsel f ailed to investigate the cas e adequa tely, the trial court found that either Hil l or his investigator had interviewed all potent ial witnesses, thatHill had conducted thorough discovery , and that Hil l was prepa red for trial. The trialcourt found further that the defense theory that someone other

than the Petiti oner was responsibl e for any sexua l abus e of the victims was re ason able and, given that theory , there wa s no ne ed to presen t expert m edical tes timony to contradictthe Stat e’s m edical pr oof of penetr

ation of S. M. In addit ion, the t rial-9-

court accredit ed Hill’ s testi mony thatthe Petition er was fre e to testify if he wi shed to do so.

From the evidence presented at t he post-convi ction heari ng and a review of the trial transcript, the trial court conc luded that H ill’s repre senta tion fell w ithin the range o f comp etence dema nded o f attorneys in crimina l cases. The tr ial court therefor

e denied the pet ition f or post-conv iction relief on ineffecti ve assistance of

counsel grounds. It is from this order of deni al that t he Petiti oner now ap peals. O n appe al, he con tends tha t the trial court e rred in findin g th a t defense counsel adequately investi gated the case and presented a co mp etent defense.

In determining whe the r or not c ouns el prov ided e ffective a ssista nce a t trial, the court must deci de whe th er counsel’ s performance was wi thin the r ange of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W .2 d 930 (Tenn . 1975). To succe ed on a claim that his counsel was ineffective at trial , a petit ioner bears t he burden of showing t hat his counselmade
errors so serious t hat he was not f unctioni ng as counsel as guaranteed under t he Sixth Amendment and that the defici ent representat ion prejudi ced the peti tioner resulti ng in a failur

e to produce a reliable re sult. Strickl and v. Washington , 466 U.S. 668, 68 7, reh’g denied , 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d 744, 747 (T enn. 1993 ); Butler v. State , 789S.W.2d 8 98, 8 99 (Te nn. 1 990). To satisfy this second pro ng the pet iti oner must s how a reason able pro bability that, but for cou nsel’s unrea sona ble error, the fact f inder would have h ad rea sona ble doubt regardin g petitione r’s guilt. Strickl and , 466 U .S. at 69 5. This reaso nable-10-

probab ilitymust be “su fficient to undermine confidence in the outcome .” Harris v. State , 875 S.W .2d 662, 665 (Tenn. 199 4).

When review ing tria l counse l’s action s, this co urt sho uld no t use th e ben efit of hindsight to second-guess trialstrategy a nd criticize c ounse l’s tactics. Hellard
v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors shou ld be judged at the tim e it was m ade in ligh t of all facts an d circum stance s. Strickl and , 466 U .S. at 690 ; see Cooper , 849 S.W.2d at 746.

We note that u nder the Post -Convicti on Procedure Act appl icable to the presentcase, a peti tioner bear s the burden of prov ing the al legations in his or her petiti on by a preponderance of the evidence. See McBe e v. State , 655 S.W.2d 191, 195 (Ten n. C ri m. App. 1983). Fur thermore, t he factual finding s of the trial court in post-con viction hearings are conclusive on appeal unless the evidence preponderatesagainst th em. See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App . 1983).
Applying the Strickl and standard to the case sub judice , we believe t hat the Petiti oner has fail ed to establ ish that defense couns e l’s repr esentation was constitution ally deficient. The Petiti oner testi fied at t he post-convi ction hearing thatdefense counsel f ailed to interv iew all potentialdefense wit nesses and fail ed to investigate the case fully. In support of h is content ions, th e Petiti oner offered the testim ony of s evera l relatives who s tated th at they w ere no t intervie wed by defense counsel until the day of t rial. In contrast, defense counsel testif ied that either he orhis investigator

interv iewed all witnesses suggested by the Pet itioner and that he i nvestigated all rel evant aspects of the case.-11- After hearing al l of the evidence and eval uat ing cr edibility, the trial court accreditedthe testi mony of the Peti tioner’ s defense counsel , Hank Hill . Thus, the trialcourt found that the ev idence did not support thePetition er’s allegat ions of ineffective assistance of counsel for

failur e to invest igate. The trial cou rt was in
a much better posi tion to ev aluate the credibil ity of the witnes ses than this C ourt. The trialcourt found Hank Hill’ s tes t imony to be p ersuasive an d therefore concluded that the Pet itioner had not establ ished that Hil l’s repr esentation was cons titutiona lly deficient. From the record bef ore us, we cannot

conclude that

the evidence preponderates against the t rial court’ s findings.

On appeal, t he Petiti oner also contends that t he trialcourt err ed in fi nding thatdefense counsel p resented a competent defense. With regard to t he allegati on in the post-convict ion peti tion that defense counsel f

ailed to pre sent medical evidence to rebut the S tate’s medi cal proof concerning thephysical conditi on of S.M., we conclude that the Petit ioner has not carried hi s bu r den of
e stablis hing that defens e counsel’s r epresentati on was defici ent. At t rial, the State pre se nted expert testimony t hat the condi tion of S. M.’s hymen indi cated thatshe had been repeatedl y penetrated. Defense counseltestif ied that he did not challenge t his test imony because thedefense the ory was not that S.M. had not been pene tra ted, but rather that the P etitioner had not pe netrated her. Moreover, the Petit ioner’s complaint t hat proof of a bicycl e accident

causing an injury to S.M .’s vagin al area was n ot brou ght forth at trial i s unfounded. Our
re ading of the trial transcript indicates that this issu e was raised duri ng th e testimony of D r. David Tep per.-12- The Petitio ner also alleged that defense counsel presented an incompetent defense in that he fa iled to emp hasiz e the in cons istenc ies in the testi mony of the vi cti ms and their mother . The tri al record, however, is r eplete wit h examples of cross-examinat ion by defe ns e cou nsel fo cusin g on in cons istenc ies in th eir testimony. For example, defense counsel r epeatedly quest ioned S.M. about the number of instances of sexual abuse, often resulti ng in conflict ing answers. Furthermore, defense counsel effectively emphasized the fact that the mother of the victi ms, Rebecca Harris, gave confli cting answers as to when and how she initially discover ed the se xual abu se. We therefore conclude that the Petit ioner has failed to carry h is burden of dem onstra ting tha t defen se co unse l’s representat ion was constit utionally defici ent with r egard to the pr

esentation of a competent defense.

We note th at on a ppea l, the Pe titioner ra ises an issue n ot pres ented in his petiti on for post- convicti on relief . He conten ds that the trial court at the postconvicti on hea ring improperly rest ricted hi s examination of witnes ses and presentati on of evidence. In parti cular, hecomplains that the tri al court r

estricted his cross-e xamina tion of Ha nk Hill with re gard to Hill’ s questioni ng of the S tate’s witnessesabout inconsi stencies i n their testimony. Mor eover, he complai ns that the trialcourt rest ricted hi s own testi mony about whathe wo uld have tes tified to at trialhad he chosen to t estif y. Furthe rmore, he complai ns that th e trialjudge impro perly interj ected himself in the post-convict ion hearing by questioni ng the Petitioner’ s witnesses.

It is well -establi she d th at ruli ngs on the admissi bilit y of evi dence and the propriety and form of examinat ion of wit nesses are entr usted to t he sound-13-

discreti on of the trial court. See, e.g. , State v. Hutchison , 898 S.W.2d 161, 172 (Tenn. 1994), cert. deni ed , 116 S.C t. 137, 133 L.Ed.2d 84 (199 5); State v. Harris , 839 S.W .2d 54, 72 (Tenn . 1992), cert. deni ed , 507 U. S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). Such rulings wi ll not be reversed on a ppea l a bsent an
a buse of that discre tion. See State v. Caughron , 855 S.W.2d 526, 541 (Tenn. 1993), cert. deni ed , 510 U.S. 57 9, 114 S.C t. 475, 126 L.Ed .2d 426 (199 3).

The record from th e pos t-conv iction h earing revea ls that at one pointwhen the Petiti oner was cross-ex amining HankHill about whether he h ad emphasized to the jury certain in consiste ncies in R ebecc a Harris’ s tateme nts, the trial co urt, in response to an object ion by theassistant distri ct attorney general, commented as follows: W ell, I just -- I don’ t -- I ’m not go ing to let you go into this entire case and ask him [Hank Hill ] about ever ything t hat you might have done differ

ently or you think t hat he should have done. You know, we’ll be here for t he rest of s ix months i f you go thro ugh th is entire case an d say, well, when you asked this qu estion , shou ldn’t you have asked a dif

ferent quest ion, or di d you look at t his, and go through ever

y fini te detailof this

case. The question is w he ther or not -- an d Mr. H ill has am ply s tat ed several tim es that he did everyth ing he felt h e could d o to represent

this cl ient and t hought he got a fair tr ial, andhe f elt like even if he had had more t ime and more assistan ce, it wouldn’t have made any difference, and whether --the test as to whether or not he was effective ly repre sentin g him is notwhether he would h ave done everythi ng the way some other lawyer might have done it, but was whetheror not he render ed assistance t hat was withi n the range of competence deman ded by attorn eys in crim inal ca ses a t this particular tim e, and tha t’s the issue before th e Cou rt. The Petiti oner agree d with th e trial co urt’s statements and then continued crossexamination of Hank Hillby asking hi m about inconsistenc ies i n Dr . Tep per’s testim ony at tr ial.-14- From these circumstances, we cannot conclude that the t rial j udge abused his dis cretion i n controll ing the examination of Hank Hi ll. The Pet itioner was allowed to raise as an issue tha t Hill was ineffective for fai ling to emphasize the inconsistencies in Reb ecca Ha rris’ t est imony. With thi s issue in mi nd, the trial court reviewed t he trialtranscri pts contai ning Harri s’ test imony prior to ruli ng on the post-c onvictio n petitio n. Thu s, it appea rs that the P etitioner wa s, in fact, permitted to raise the issue and t hat the trial court possessed and reviewed t he evidence necessar

y to rul e upon the issue.

With reg ar d to the complai nt that t he trialcourt improperly rest ricted t he Petit ioner’ s own testimony abou t what he would have testi fied to at trialhad he chosen to testif

y, we concludethat the i ssue provides no basis for

relief for the Petitioner. At the p ost-co nvic tion hea ring, the Petitioner testified that he heard Rebecca Harris screaming that she had caught S.M. and J .M. doing “ [s]tuf f they don’t suppose d to be doing th at’s sister and brothe r.” At that point, the trial court cut off the Pet itioner’s test imony, noti ng that he was testify ing to h earsay evidence which wou ld not have been admitted at trial . On appeal, t he Petiti oner challenges t he trialcourt’s restri ction of his testimony, arguing that the hearsay evidence would have been admissible pursu a nt to the excited utterance exceptio n. See Tenn. R . Evid. 803(2).
Regardless of the propriety of the tri al court’s restri ction of the Petition er’s testi mo ny at the post-convi ction heari ng, we do not bel ieve that this i ssue providesrelief

for the Pet itione r. The testimony at issue in t he post-convi ction hearing related to what the Petition er would have tes tified to had he cho sen to testif y at trial. Th e Petitio ner initia lly claim ed in h is post-convi ction pet ition t hat-15-

defense coun sel pre ssure d him not to testify. On cro ss-exam ination at th e postconvicti on hearing, however, t he Petiti oner admitted t hat defen se co unse l mere ly advised him not to testify because of his prior record and that the decision as to whethe r to testify was his t o make. The Petiti oner chose not to testif y at trial
. Thus, the su bstan ce of w hat he would have te stifi ed to at trial had he chosen differen tly does not su pport h is claim of ineffe ctive as sistan ce of c ouns el.

With regard to t he complaint t hat the trial j udge imprope rly i nterjected hims elf in the post-convi ction hearing by questi oning the Petiti oner’s witnesses,
we conclude tha t the trial court did not err. The Petiti oner chall enges the fact that the trialjudge asked addit ional quest ion s of som e of the Peti tioner’ s witnesses at the po st-con viction h earing . The P etitione r’s argumen t ignore s the p rinciple thatthe trial cour t has disc retion to inte rrogate w itnesses
. See Tenn . R . E vid. 614(b). Our review of the record indicates that the trial court’s questions were relevant and did notexhibit an unfai r bias. Thus, we conclude t hat the trial j udge did not abuse his di scretion by pos ing li mited questi ons to some of the Petiti oner’s wit nesses at the post-convict ion hearing.

For the reasons set

forth i n the discussi on above, we concl ude t hat the Petiti oner has failed to dem onstrate that the tri a l court er red in denyi ng the petiti on for pos t-conv iction re li ef on ineffecti ve assistance of counsel grounds. We therefore affirm the ju dgme nt of the trial co urt.

____________________________________ DAVID H. WELLES , JUD GE-16-

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE