FILED

December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1997

EDDIE CURT DAVIS, ) C.C.A. NO. 03C01-9702-CR-00064

)

Appellant, )

)

) HAMILTON COUNTY

VS. )

) HON. STEPHEN M. BEVIL

STATE OF TENNESSEE, ) JUDGE

)

Appellant. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF HAMILTON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

KENNETH F. IRVINE, JR. JOHN KNOX WALKUP

606 W. Main Street, Suite 350 Attorney General and Reporter

P.O. Box 84

Knoxville, TN 37901-0084 PETER M. COUGHLAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

BILL COX

District Attorney General

BATES BRYAN, JR.

Assistant District Attorney General

Court Building

600 Market Street

Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

See State v. Edd ie Cu rt Da vis, C.C.A. No. 03C01-9109-CR-00295, Hamilton County (Tenn.

Crim . App., Kn oxville, Aug . 26, 1992 ), perm. to appeal denied (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 Petitioner chose not to pursue this issue at the post-conviction hearing. As such, we will not

address it in this opinion.

-2-

OPINION

The Petitioner, Eddie Curt Davis, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. On November 30, 1990, a Hamilton County jury

found the Petitioner guilty of two counts of aggravated rape and one count of

aggravated sexual battery. The trial court sentenced him to thirty years

imprisonment for each aggravated rape and fifteen years for the aggravated

sexual battery. The fifteen-year sentence was ordered to run consecutive to the

concurrent aggravated rape sentences, resulting in an effective term of

imprisonment of forty-five years. His convictions were affirmed by this Court on

August 26, 1992, and the Tennessee Supreme Court denied permission to

appeal on December 28, 1992.1

 The Petitioner filed a pro se petition for postconviction relief on January 7, 1993, which was amended with the assistance of

counsel on February 15, 1996. In the petition for post-conviction relief, he argues

that his due process rights were violated by conviction of an offense for which the

statute of limitations had expired and that he was denied effective assistance of

counsel at trial.2 The trial court conducted an evidentiary hearing on April 1 and

May 20, 1996. On June 25, 1996, the trial court issued an order denying the

petition in part and granting it in part. W e affirm the judgment of the trial 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 facilitate our discussion of the issues, we begin with a brief summary

of the facts surrounding the offenses. On November 29, 1989, the Petitioner was

indicted by presentment on five counts of aggravated rape. The alleged victims

were the minor children of his girlfriend, Rebecca Harris.3 The offenses were

alleged to have occurred between September of 1983 and January of 1989.

J.M., a young male, was alleged to have been penetrated anally and forced to

perform oral sex on the Petitioner. S.M., a young female, was alleged to have

been penetrated vaginally, forced to perform oral sex and to have oral sex

performed upon her.

The Petitioner’s trial was held from November 28 to November 30, 1990.

At trial, both victims testified concerning several instances of sexual abuse. The

offenses were alleged to have occurred while the children’s mother, Rebecca

Harris, was at work. Given the young age of the victims, they were not able to

identify specific dates on which the abuse had occurred. Instead, they identified

the abuse mainly according to which house they were living in at the time of the

abuse. At the close of proof, the State elected to proceed on the presentments

as charging that the offenses had occurred between September, 1984 and July,

1986 in a house on McCahill Road in Red Bank.

The State also presented expert medical testimony at trial. Dr. David

Tepper examined S.M. in August of 1989. At that time, S.M.’s hymen was not

intact. The examination of S.M. revealed evidence of repeated penetration of her

vagina. Dr. George Winterer examined J.M. in April of 1989. The examination
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of J.M. revealed nothing remarkable about his rectum and no evidence of

penetration. Dr. Winterer testified, however, that his findings were not surprising

given the amount of time which had passed since the alleged penetration.

The State also offered testimony from medical and law enforcement

personnel regarding statements made to them by the victims. These statements

echoed the victims’ testimony at trial concerning the instances of sexual abuse.

In addition, the mother of the victims, Rebecca Harris, testified about statem ents

made to her by her children concerning the sexual abuse. Harris also testified

that the Petitioner admitted to her that he had had sex with the victims.

Although the Petitioner did not testify at trial, he offered testimony from

several witnesses, all of whom were his relatives. These witnesses testified that

they never noticed anything unusual about the Petitioner’s relationship with the

victims. The witnesses also indicated that they, not the Petitioner, babysat the

victims while Rebecca Harris was at work.

After considering the proof, the jury acquitted the Petitioner of the charges

involving J.M., specifically the allegations that the Petitioner anally raped J.M. and

forced J.M. to perform oral sex upon him. The jury found the Petitioner guilty as

charged of vaginally raping S.M. and forcing her to perform oral sex upon him.

The jury found the Petitioner guilty of the lesser included offense of aggravated

sexual battery with regard to the charge that he performed oral sex upon S.M.

On January 7, 1993, the Petitioner filed a pro se petition for post-conviction

relief, arguing that his conviction for aggravated sexual battery violated his due
4

 The Petitioner did not pursue allegations number four and five, that counsel refused to allow

him to testify and that counsel failed to raise viable issues on direct appeal, in this appeal from the trial

court’s order granting his petition in part and denying it in part. Thus, we will not address those

allegations in this opinion.

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process rights and that defense counsel was ineffective. Counsel was appointed

and amended the petition on February 15, 1996. Through the amended petition,

the Petitioner argued that his trial attorney, Hank Hill, rendered ineffective

assistance of counsel in a number of ways:

(1) That counsel failed to investigate the case fully and failed to

interview all potential defense witnesses;

(2) that counsel failed to present expert medical evidence to rebut

the State’s medical proof concerning the physical condition of S.M.;

(3) that counsel failed to emphasize the inconsistencies in the

testimony of the victims;

(4) that counsel refused to allow him to testify at jury-out hearings;

and,

(5) that counsel failed to raise several viable issues on direct

appeal.4

The Petitioner also argued that the statute of limitations for aggravated sexual

battery had expired prior to his being charged. As such, he contended that his

conviction for that offense violated his due process rights.

The trial court conducted an evidentiary hearing on the petition for postconviction relief on April 1 and May 20, 1996. On May 20, 1996, the State

conceded that the Petitioner had been improperly convicted of aggravated sexual

battery after the statute of limitations had expired. Accordingly, the trial court

granted the post-conviction petition in that regard and vacated the Petitioner’s

conviction for the aggravated sexual battery of S.M. This ruling is not challenged

in this appeal and, therefore, we will not address the statute of limitations issue

in this opinion.
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At the post-conviction hearing, the Petitioner testified that defense counsel

conducted plea bargaining negotiations and received an offer of thirty years. The

Petitioner declined this offer, maintaining that he was innocent. He stated that

he wanted to testify at trial, but defense counsel advised against it given that he

had a prior criminal record which would have been admitted for impeachment

purposes. Had he testified at trial, he would have informed the jury about a

bicycle accident which S.M. had that caused her to bleed from her vaginal area.

He would also have testified that he walked in on J.M., S.M., and their halfbrother while they were in bed together wearing only their underpants. In

addition, he would have testified that he heard Rebecca Harris screaming one

time that she had caught J.M. and S.M. doing “[s]tuff they don’t supposed to be

doing that’s sister and brother.” On cross-examination, the Petitioner admitted

that although defense counsel advised against his testifying, the choice as to

whether to testify was his to make.

The Petitioner also offered the testimony of several relatives. They

testified that defense counsel did not talk with them prior to the day of trial. Missy

Strickland, the Petitioner’s niece, testified that S.M. had a bicycle accident which

caused her to bleed from her vaginal area. Diane Ellenbock and Robin Webster,

the Petitioner’s siblings, both testified to suggestive behavior between Rebecca

Harris and the victims which they deemed inappropriate. Joann Dunning, the

Petitioner’s mother, echoed the testimony of Ellenbock and Webster. These

witnesses and other relatives all testified that they witnessed S.M. masturbating

repeatedly. They all also testified that they never witnessed any unusual

behavior between the Petitioner and the victims. On cross-examination, Dunning
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and Webster admitted that they had been called as witnesses at the Petitioner’s

trial.

The Petitioner’s defense attorney from trial, Hank Hill, testified at the postconviction hearing. Hill stated that he began practicing law in 1978 and became

an initial member of the public defender’s office in Hamilton County when it was

established in 1989. Hill recalled speaking with the Petitioner several times prior

to trial. Hill stated that either he or his investigator, Alan Miller, interviewed the

State’s witnesses and every potential witness suggested by the Petitioner.

According to Hill, Miller visited the various homes lived in by the Petitioner and

the victims over the years alleged in the presentments. Hill spoke with the

medical expert who had conducted the examination of S.M., Dr. Tepper, and

asked him about the possibility of a bicycle accident causing the tearing of S.M.’s

hymen. Dr. Tepper responded that the state of S.M.’s hymen was not consistent

with a bicycle injury.

The Petitioner maintained his innocence and Hill, given his investigation

of the case, decided to put forward a defense that although S.M. may have been

penetrated, it was not the Petitioner who had done so. Hill recalled that there

were insinuations of sexual abuse of S.M. by her half-brother who lived in Ohio.

Thus, Hill testified that he did not feel a need to attempt to contradict Dr. Tepper’s

testimony about the condition of S.M.’s hymen through the use of a defense

expert.

On cross-examination, Hill freely admitted that he was overburdened with

cases during the time that he investigated and tried the Petitioner’s case. Hill
-8-

testified that his caseload was well in excess of the American Bar Association

guidelines. According to Hill, the newly-established public defender’s office

simply did not have the resources with which to hire enough staff members to

maintain reasonable workloads. Hill admitted that the Petitioner would have

received more attention from a retained attorney than he received from Hill.

In spite of his excessive caseload, however, Hill testified that the Petitioner

received quality representation. Hill did not believe that the outcome of the trial

would have been different had he not been overburdened with work. He stated

that he spoke with the Petitioner as much as he needed to and fully investigated

the case. He testified that he was able to develop enough evidence to put forth

the Petitioner’s theory at trial, namely that another individual had been

responsible for any sexual abuse of the victims.

After considering the evidence presented at the post-conviction hearing,

the trial court entered detailed findings of fact and conclusions of law. In short,

the trial court did not find the Petitioner’s proof to be persuasive and instead

accredited Hank Hill’s testimony in all respects. With respect to the allegation

that defense counsel failed to investigate the case adequately, the trial court

found that either Hill or his investigator had interviewed all potential witnesses,

that Hill had conducted thorough discovery, and that Hill was prepared for trial.

The trial court found further that the defense theory that someone other than the

Petitioner was responsible for any sexual abuse of the victims was reasonable

and, given that theory, there was no need to present expert medical testimony to

contradict the State’s medical proof of penetration of S.M. In addition, the trial
-9-

court accredited Hill’s testimony that the Petitioner was free to testify if he wished

to do so.

From the evidence presented at the post-conviction hearing and a review

of the trial transcript, the trial court concluded that Hill’s representation fell within

the range of competence demanded of attorneys in criminal cases. The trial

court therefore denied the petition for post-conviction relief on ineffective

assistance of counsel grounds. It is from this order of denial that the Petitioner

now appeals. On appeal, he contends that the trial court erred in finding that

defense counsel adequately investigated the case and presented a competent

defense.

In determining whether or not counsel provided effective assistance at trial,

the court must decide whether counsel’s performance was within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable result. Strickland v. Washington, 466

U.S. 668, 687, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable
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probability must be “sufficient to undermine confidence in the outcome.” Harris

v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

When reviewing trial counsel’s actions, this court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time it was made in light of all facts and circumstances. Strickland,

466 U.S. at 690; see Cooper, 849 S.W.2d at 746.

We note that under the Post-Conviction Procedure Act applicable to the

present case, a petitioner bears the burden of proving the allegations in his or her

petition by a preponderance of the evidence. See McBee v. State, 655 S.W.2d

191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial

court in post-conviction hearings are conclusive on appeal unless the evidence

preponderates against them. See State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983).

Applying the Strickland standard to the case sub judice, we believe that the

Petitioner has failed to establish that defense counsel’s representation was

constitutionally deficient. The Petitioner testified at the post-conviction hearing

that defense counsel failed to interview all potential defense witnesses and failed

to investigate the case fully. In support of his contentions, the Petitioner offered

the testimony of several relatives who stated that they were not interviewed by

defense counsel until the day of trial. In contrast, defense counsel testified that

either he or his investigator interviewed all witnesses suggested by the Petitioner

and that he investigated all relevant aspects of the case.
-11-

After hearing all of the evidence and evaluating credibility, the trial court

accredited the testimony of the Petitioner’s defense counsel, Hank Hill. Thus, the

trial court found that the evidence did not support the Petitioner’s allegations of

ineffective assistance of counsel for failure to investigate. The trial court was in

a much better position to evaluate the credibility of the witnesses than this Court.

The trial court found Hank Hill’s testimony to be persuasive and therefore

concluded that the Petitioner had not established that Hill’s representation was

constitutionally deficient. From the record before us, we cannot conclude that the

evidence preponderates against the trial court’s findings.

On appeal, the Petitioner also contends that the trial court erred in finding

that defense counsel presented a competent defense. With regard to the

allegation in the post-conviction petition that defense counsel failed to present

medical evidence to rebut the State’s medical proof concerning the physical

condition of S.M., we conclude that the Petitioner has not carried his burden of

establishing that defense counsel’s representation was deficient. At trial, the

State presented expert testimony that the condition of S.M.’s hymen indicated

that she had been repeatedly penetrated. Defense counsel testified that he did

not challenge this testimony because the defense theory was not that S.M. had

not been penetrated, but rather that the Petitioner had not penetrated her.

Moreover, the Petitioner’s complaint that proof of a bicycle accident causing an

injury to S.M.’s vaginal area was not brought forth at trial is unfounded. Our

reading of the trial transcript indicates that this issue was raised during the

testimony of Dr. David Tepper.
-12-

The Petitioner also alleged that defense counsel presented an incompetent

defense in that he failed to emphasize the inconsistencies in the testimony of the

victims and their mother. The trial record, however, is replete with examples of

cross-examination by defense counsel focusing on inconsistencies in their

testimony. For example, defense counsel repeatedly questioned S.M. about the

number of instances of sexual abuse, often resulting in conflicting answers.

Furthermore, defense counsel effectively emphasized the fact that the mother of

the victims, Rebecca Harris, gave conflicting answers as to when and how she

initially discovered the sexual abuse. We therefore conclude that the Petitioner

has failed to carry his burden of demonstrating that defense counsel’s

representation was constitutionally deficient with regard to the presentation of a

competent defense.

We note that on appeal, the Petitioner raises an issue not presented in his

petition for post-conviction relief. He contends that the trial court at the postconviction hearing improperly restricted his examination of witnesses and

presentation of evidence. In particular, he complains that the trial court restricted

his cross-examination of Hank Hill with regard to Hill’s questioning of the State’s

witnesses about inconsistencies in their testimony. Moreover, he complains that

the trial court restricted his own testimony about what he would have testified to

at trial had he chosen to testify. Furthermore, he complains that the trial judge

improperly interjected himself in the post-conviction hearing by questioning the

Petitioner’s witnesses.

It is well-established that rulings on the admissibility of evidence and the

propriety and form of examination of witnesses are entrusted to the sound
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discretion of the trial court. See, e.g., State v. Hutchison, 898 S.W.2d 161, 172

(Tenn. 1994), cert. denied, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995); State v. Harris,

839 S.W.2d 54, 72 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122

L.Ed.2d 746 (1993). Such rulings will not be reversed on appeal absent an

abuse of that discretion. See State v. Caughron, 855 S.W.2d 526, 541 (Tenn.

1993), cert. denied, 510 U.S. 579, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993).

The record from the post-conviction hearing reveals that at one point when

the Petitioner was cross-examining Hank Hill about whether he had emphasized

to the jury certain inconsistencies in Rebecca Harris’ statements, the trial court,

in response to an objection by the assistant district attorney general, commented

as follows:

Well, I just -- I don’t -- I’m not going to let you go into this

entire case and ask him [Hank Hill] about everything that you might

have done differently or you think that he should have done. You

know, we’ll be here for the rest of six months if you go through this

entire case and say, well, when you asked this question, shouldn’t

you have asked a different question, or did you look at this, and go

through every finite detail of this case.

The question is whether or not -- and Mr. Hill has am ply

stated several times that he did everything he felt he could do to

represent this client and thought he got a fair trial, and he felt like

even if he had had more time and more assistance, it wouldn’t have

made any difference, and whether -- the test as to whether or not he

was effectively representing him is not whether he would have done

everything the way some other lawyer might have done it, but was

whether or not he rendered assistance that was within the range of

competence demanded by attorneys in criminal cases at this

particular time, and that’s the issue before the Court.

The Petitioner agreed with the trial court’s statements and then continued crossexamination of Hank Hill by asking him about inconsistencies in Dr. Tepper’s

testimony at trial.
-14-

From these circumstances, we cannot conclude that the trial judge abused

his discretion in controlling the examination of Hank Hill. The Petitioner was

allowed to raise as an issue that Hill was ineffective for failing to emphasize the

inconsistencies in Rebecca Harris’ testimony. With this issue in mind, the trial

court reviewed the trial transcripts containing Harris’ testimony prior to ruling on

the post-conviction petition. Thus, it appears that the Petitioner was, in fact,

permitted to raise the issue and that the trial court possessed and reviewed the

evidence necessary to rule upon the issue.

With regard to the complaint that the trial court improperly restricted the

Petitioner’s own testimony about what he would have testified to at trial had he

chosen to testify, we conclude that the issue provides no basis for relief for the

Petitioner. At the post-conviction hearing, the Petitioner testified that he heard

Rebecca Harris screaming that she had caught S.M. and J.M. doing “[s]tuff they

don’t supposed to be doing that’s sister and brother.” At that point, the trial court

cut off the Petitioner’s testimony, noting that he was testifying to hearsay

evidence which would not have been admitted at trial. On appeal, the Petitioner

challenges the trial court’s restriction of his testimony, arguing that the hearsay

evidence would have been admissible pursuant to the excited utterance

exception. See Tenn. R. Evid. 803(2).

Regardless of the propriety of the trial court’s restriction of the Petitioner’s

testimony at the post-conviction hearing, we do not believe that this issue

provides relief for the Petitioner. The testimony at issue in the post-conviction

hearing related to what the Petitioner would have testified to had he chosen to

testify at trial. The Petitioner initially claimed in his post-conviction petition that
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defense counsel pressured him not to testify. On cross-exam ination at the postconviction hearing, however, the Petitioner admitted that defense counsel merely

advised him not to testify because of his prior record and that the decision as to

whether to testify was his to make. The Petitioner chose not to testify at trial.

Thus, the substance of what he would have testified to at trial had he chosen

differently does not support his claim of ineffective assistance of counsel.

With regard to the complaint that the trial judge improperly interjected

himself in the post-conviction hearing by questioning the Petitioner’s witnesses,

we conclude that the trial court did not err. The Petitioner challenges the fact that

the trial judge asked additional questions of some of the Petitioner’s witnesses

at the post-conviction hearing. The Petitioner’s argument ignores the principle

that the trial court has discretion to interrogate witnesses. See Tenn. R. Evid.

614(b). Our review of the record indicates that the trial court’s questions were

relevant and did not exhibit an unfair bias. Thus, we conclude that the trial judge

did not abuse his discretion by posing limited questions to some of the

Petitioner’s witnesses at the post-conviction hearing.

For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief on ineffective assistance of counsel grounds.

We therefore affirm the judgment of the trial court.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

JERRY L. SMITH, JUDGE