IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 22, 2003 Session

JOHN C. WELLS, III v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 92-C-1366 Cheryl Blackburn, Judge

No. M2002-01303-CCA-R3-PC - Filed July 23, 2003

The petitioner was originally convicted by a Davidson County jury on nine counts of aggravated

sexual battery and received an effective ninety-year sentence. He now appeals the denial of postconviction relief, contending: (1) the post-conviction judge, who was a Deputy District Attorney

General at the time of the original prosecution, should have recused herself; (2) he received

ineffective assistance of trial and appellate counsel; (3) numerous errors of constitutional dimension

occurred at his original trial and on direct appeal; and (4) cumulative errors require that he be

granted relief. In spite of our concerns regarding the recusal issue, we are unable to discern any

material distinctions with prior cases which have affirmed the failure to recuse. Accordingly, we

affirm the judgment of the post-conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and

NORMA MCGEE OGLE, JJ., joined.

Monte D. Watkins and Bruce Poag, Nashville, Tennessee, for the appellant, John C. Wells, III.

Paul G. Summers, Attorney General and Reporter; ElizabethB. Marney, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

After the petitioner was convicted on nine counts of aggravated sexual battery and sentenced

to an effective term of ninety years in the Department of Correction, he filed a direct appeal to this

court. This court affirmed all of the convictions and sentences. See State v. John Claude Wells, III,

No. 01C01-9505-CR-00146, 1997 Tenn. Crim. App. LEXIS 533 (Tenn. Crim. App. June 6, 1997,

at Nashville), perm. to app. denied (Tenn. 1998). Thereafter, the petitioner sought post-conviction

relief which was denied by the post-conviction court. This appeal ensued.
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A portion of the underlying facts are garnered from our opinion in the direct appeal:

The defendant moved to Nashville in 1987. He subsequently leased an

apartment in the Turtle Creek apartment complex. Eventually, he leased a home

located on Tobylynn Court in Nashville. In December of 1991, the defendant moved

to Austin, Texas.

A young victim, J.T.K., decided to earn spending money during the summer

of 1989. He went from apartment to apartment in the Turtle Creek complex offering

to remove trash bags from a person’s apartment to a garbage container for fifty cents

per bag. The defendant’s apartment was one of the apartments approached by J.T.K.

The defendant agreed to use the minor’s services. The minor testified the defendant

told him he did not have any trash, but he would give him $5.00 to wash his dishes.

The defendant testified he employed the minor to remove histrash. A close friendship

developed between J.T.K. and the defendant.

J.T.K. began spending weekends at the defendant’s apartment. He introduced

other young boys to the defendant. Two other victims, D.D.N. and R.A.V., were two

of the young boys J.T.K. introduced to the defendant. These two victims also began

spending weekends at the defendant’s apartment with the other young boys the

defendant had met.

The defendant provided video games, board games, and rented movies for the

boys on the weekends. He took the boys to a movie theater on occasion. In addition,

he took several of the boys to Opryland, Kings Island in Ohio, Gatlinburg, and

Mammoth Cave in Kentucky. He also took the boys to the zoo, a skateboard park,

and other parks in Nashville. The defendant stated he took some of the boys fishing

at Percy Priest Park near Nashville. He also took the boys on camping trips. The

defendant took some of the boys to New Orleans for the Sugar Bowl. He also took

the boys to fast food restaurants. The defendant paid for all of the expenses incurred

for the food and the trips.

J.T.K. took Taekwondo lessons. The defendant paid for these lessons. He

loaned money to R.A.V.’s mother. He gave her a motor vehicle. He also paid six

months rent in advance when she moved to a duplex. He gave the boys nice presents

on Christmas and their birthdays.

Most of the boys were from families without fathers in the household. Some

of these boys had stepfathers whom they did not like. The defendant was a fatherfigure to these young boys.

On April 22, 1991, D.D.N. told a teacher he had been sexually abused by the

defendant. The police were called. D.D.N. gave the police a statement implicating

the defendant. An investigation ensued. Detective Bruce Amos of the Metropolitan

Police Department interviewed the defendant on May 17, 1991. Between July 8,
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1991 and November 22, 1991, he interviewed the young boys who spent time at the

defendant’s apartment. The defendant made entries in a desk calendar of the dates

of the interviews. He admitted he left Nashville shortly after Thanksgiving in 1991.

When the defendant arrived in Texas, he took stepsto change his identity from

John Claude Wells, III, to Duane Wells. He gave his new employer and others a false

social security number. The defendant was subsequently sent to Philadelphia,

Pennsylvania to install wireless cable television units. While in Philadelphia, he was

stopped for a traffic offense. He gave the officer his Tennessee driver’s license which

contained his correct name. The officer apparently ran an NCIC check. The check

revealed he was wanted in Tennessee for aggravated sexual battery. He was

subsequently extradited to Tennessee. He remained in jail until the trial. 

John Claude Wells, III, 1997 Tenn. Crim. App. LEXIS 533, at **3-6 (footnote omitted).

The proof established that each of the three male victims was under thirteen years of age.

Six of the convictions involved the same victim, and all incidents occurred prior to April 22, 1991.

Two of the convictions involved a separate victim and occurred prior to September 17, 1991. The

final conviction involved a separate victim and occurred prior to November 22, 1991. See id., at

**6-9.

POST-CONVICTION HEARING

The petitioner testified at his post-conviction hearing that he believed his trial and appellate

counsel were deficient in several respects. The petitioner stated his trial counsel was unable to

effectively cross-examine the victims because trial counsel did not subpoena necessary school and

therapy records of all of the victims. The petitioner further claimed that, due to the nature of the

case, trial counsel should have secured expert assistance to establish that the child victims had been

coerced and were untruthful. He further contended trial counsel was ineffective in failing to move

to strike the testimony of one of the victims when the prosecution conceded that the pretrial taped

interview of the child had been lost.

The petitioner further testified that the state impeached him at trial with an alleged fraudulent

bankruptcy petition which he had filed. The petitioner contended trial counsel should have

subpoenaed his bankruptcy attorney who would have testified that this was a clerical error which

was not the responsibility of the petitioner. The petitioner further testified that trial counsel was

deficient in failing to subpoena a DHS investigator and a Home Ties worker, both of whom were

involved in the initial investigation. Finally, the petitioner testified that, in his view, appellate

counsel was deficient in failing to raise the issue of the bankruptcy petition on appeal and in not

allowing the petitioner to be an integral part of the appellate process.

The petitioner presented the testimony of Dr. William Bernet, a child psychiatrist. The

essence of Dr. Bernet’s testimony was that alleged victims of child sexual abuse are sometimes

untruthful due to improper influence and/or other causes. Dr. Bernet had reviewed various records
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involving this case and opined that some of the victims’ allegations were consistent with truth,

whereas others were not.

Trial counsel, an assistant public defender at the time of trial, testified that he and the public

defender’s staff had done an extensive investigation in the case. He conferred with the petitioner

on numerous occasions, and the petitioner was aware of the nature of the defense to be presented.

Trial counsel secured numerous records prior to trial. Trial counsel did not seek the appointment

of an expert witness because counsel did not believe the request would be granted. Furthermore,

trial counsel believed expert testimony addressing the credibility of the victims would be

inadmissible at trial. As to the state’s loss of the taped interview of one of the victims, trial counsel

had a written transcript of the interview. In short, trial counsel was unaware of anything else he

could have done to provide a better defense.

POST-CONVICTION COURT’S FINDINGS

The post-conviction court filed extensive findings of fact and conclusions of law. Among

those findings and conclusions were the following:

1. trial counsel conducted a proper pretrial investigation of the case;

2. trial counsel was not deficient in failing to seek expert testimony or assistance in

developing a defense;

3. trial counsel was not deficient in failing to take further action with regard to the lost taped

interview of one of the victims;

4. the issues involving the bankruptcy petition were resolved on appeal; and

5. appellate counsel was not deficient in researching and presenting issues for the direct

appeal.

The post-conviction court dismissed the petition.

RECUSAL OF POST-CONVICTION JUDGE

A. Procedural Background

The petitioner moved the post-conviction judge to recuse herself because she was a Deputy

District Attorney General during the petitioner’s original prosecution. The post-conviction judge

filed an order denying the motion, although the order stated that the “petitioner has likewise declined

to sign a waiver” pursuant to the Code of Judicial Conduct, Canon 3(F), Tennessee Supreme Court
1

This canon contemplates a written waiver when the judge is, in fact, disqualified from hearing the matter, and

the lawyers “jointly propose” it independently of the judge. Canon 3(F) Commentary. It is apparent the post-conviction

court found no basis for disqualification and, thus, no need for a waiver.

2

This is an issue that frequently arises since former prosecutors often become trial judges.

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Rule 10, “that would allow this Court to hear the case.”1

 The petitioner sought permission from the

post-conviction court for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of

Appellate Procedure; the post-conviction court denied the request. The petitioner then sought an

extraordinary appeal to this court pursuant to Rule 10 of the Tennessee Rules of Appellate

Procedure; this court denied the application.

After oral argument in the case now before us, we remanded to the post-conviction court for

additional findings on this issue. The post-conviction judge made additional findings, and those

findings have been properly certified to this court. Upon remand and after a hearing, the postconviction judge made findings which are undisputed. We summarize the findings:

1. At the time of the petitioner’s original trial, the judge-then-prosecutor was one of

two Deputy District Attorneys General in an office having over forty attorneys;

2. Although she had supervisory responsibilities, they did not include child sexual

abuse cases;

3. She did not supervise the petitioner’s case nor the Assistant District Attorney

General who prosecuted the petitioner’s case; and

4. She had no contact with the petitioner’s case “either directly or indirectly” and

was unaware of the case until the filing of the post-conviction petition.

B. Code of Judicial Conduct

Recusal of a judge is required if the judge served as a lawyer in the matter in controversy or

a lawyer with whom the judge practiced served in the matter in controversy. Tenn. Sup. Ct. R.10,

Code of Judicial Conduct, Canon 3(E)(1)(b). However, the commentary to that section reflects that

lawyers in a governmental agency are not considered in practice with other lawyers employed by

that agency within the meaning of this mandate. Id. Nevertheless, the commentary makes clear that

recusal may still be required if “the judge’s impartiality might reasonably be questioned because

of such association.” Id. At issue in this appeal is whether the post-conviction judge should have

recused herself under the general provision of section (E)(1) which requires disqualification when

the “judge’s impartiality might reasonably be questioned.” 2

C. Judicial Ethics Opinion

The Judicial Ethics Committee of this state opined that a judge is disqualified “from

presiding over any case that was pending in the district during the time he [or she] was an assistant
3

The Code of Judicial Conduct was substantially altered effective January 27, 1997; however, the mandate for

recusal when the “judge’s impartiality might reasonably be questioned” remained unaltered. See Tenn. Sup. Ct. R. 10,

Code of Judicial Conduct, Canon 3E(1).

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district attorney general.” Judicial Ethics Committee, Formal Opinion No. 88-2 (1988). The

Judicial Ethics Committee concluded the “judge’s impartiality might reasonably be questioned”

under such circumstances. Id.3

 Thus, recusal would clearly be required under this opinion. Judicial

ethics opinions constitute a “body of principles and objectives upon which judges can rely for

guidance.” See Tenn. Sup. Ct. R. 9 § 26.6(h). However, ethics opinions do not have the force of

law. See State v. Jones, 726 S.W.2d 515, 519 (Tenn. 1987) (noting ethics opinions from the Board

of Professional Responsibility are not binding upon the courts).

D. Case Law

Subsequent to the judicial ethics opinion, this court determined that disqualification was not

required where the post-conviction judge was “one of nearly seventy attorneys” employed by the

district attorney general’s office during the prosecution of the petitioner; he never assisted in the

prosecution of the case; and he knew nothing about the facts. Owens v. State, 13 S.W.3d 742, 757

(Tenn. Crim. App. 1999). This published opinion supersedes the previously issued ethics opinion.

See Tenn. Sup. Ct. R. 4(G) (specifying that published judicial opinions are controlling authority).

Similarly, this court held a judge was not disqualified from hearing a post-conviction relief

petition when the judge “had no involvement, whether investigatory or supervisory, with the

petitioner’s criminal case while she was in the district attorney’s office,” and the judge “departed

from the district attorney’s office over one year prior to the indictment’s return.” Jessie C. Minor

v. State of Tennessee, No. M2001-00545-CCA-R10-PC, 2001 Tenn. Crim. App. LEXIS 932, at

**31-33 (Tenn. Crim. App. Dec. 5, 2001, at Nashville). This court also held that a judge may

preside over a revocation hearing even though the judge was an assistant district attorney general

at the time of the defendant’s conviction, and the judge-then-prosecutor had no involvement in the

case when the judge was an assistant district attorney general. State v. Margo Ellis, No. W2000-

02242-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 579, at **4-5 (Tenn. Crim. App. July 19, 2001,

at Jackson). In addition, this court held a judge-then-prosecutor was not disqualified from hearing

a post-conviction relief petition where, as an assistant district attorney general, he was merely

present in the courtroom during one pre-trial hearing due to the absence of the assigned prosecutor

and knew nothing about the petitioner’s cases. Victor James Cazes v. State, No. W1998-00386-

CCA-R3-PC, 1999 Tenn. Crim. App. LEXIS 1194, at **52-53 (Tenn. Crim. App. December 9,

1999, at Jackson).

E. Standard of Review

A trial judge should recuse himself or herself whenever the judge “has any doubt as to his

[or her] ability to preside impartially in a criminal case or whenever his [or her] impartiality can

reasonably be questioned.” Pannell v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001)

(emphasis added). Although the first proviso is a subjective test, the latter emphasized proviso
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requires an objective standard. Alley v. State, 882 S.W.2d 810, 820-21 (Tenn. Crim. App. 1994).

“Thus, while a trial judge should grant a recusal whenever the judge has any doubts about his or her

ability to preside impartially, recusal is also warranted when a person of ordinary prudence in the

judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for

questioning the judge’s impartiality.” Id. at 820. The trial judge retains discretion over his or her

recusal. State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App. 1995). Unless the evidence in the

record indicates that the trial judge clearly abused his or her discretion by not disqualifying himself

or herself, this court will not interfere with the decision. State v. Hines, 919 S.W.2d 573, 578 (Tenn.

1995).

The issue in the case under submission is not whether the post-conviction judge could be,

or was, fair and impartial; there is nothing to indicate unfairness or partiality. The issue is whether

there is an objective, reasonable basis for questioning the judge’s impartiality. Alley, 882 S.W.2d

at 820.

F. Analysis

In the Owens, Ellis, and Cazes cases cited above, there was no indication the judge-thenprosecutor had any supervisory responsibilities. In Minor, the judge-then-prosecutor had

supervisory responsibilities although not over the particular case or prosecutor; however, the judgethen-prosecutor was no longer in the district attorney’s office when the relevant indictment was

returned. Thus, these cases are distinguishable from this case, but only to this extent.

Neither this court nor our state supreme court has addressed the issue of whether recusal is

required where the judge-then-prosecutor had general supervisory responsibilities or supervisory

responsibilities over the prosecutor or case at issue. “[I]f a judge-previously-prosecutor supervised

or even recorded his or her name on documents of record in a case now before the court, the judge

may be required to disqualify [himself or herself], even if there is no showing that the judge was

involved or had knowledge of the case while prosecutor.” Jeffrey M. Shaman, et al., Judicial

Conduct and Ethics § 4.16, p. 142 (3d ed. 2000). We further recognize that inconvenience to the

court or docket concerns play no role in the determination of whether a judge’s impartiality can

reasonably be questioned.

However, the undisputed record in this case reflects the judge-then-prosecutor had no

supervisory responsibilities over the case or prosecutor, nor any involvement in the case “either

directly or indirectly.” Had we examined this issue without the benefit of our prior case holdings,

we would be inclined to conclude that recusal would be required under an objective standard for a

judge-then-prosecutor who was a Deputy District Attorney General with general supervisory

responsibilities when the case was tried, even though those responsibilities did not extend to the case

at issue. Nevertheless, in spite of our concerns, we are unable to discern a material distinction in

this case, as compared to our other cases, that is sufficient to justify a departure from those holdings.

Although we invite further appellate review of this issue, we conclude, in light of our prior cases,

the post-conviction judge did not err in refusing to recuse herself.
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INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review

The petitioner contends he was deprived of the effective assistance of both trial and appellate

counsel. The petitioner, in this post-conviction proceeding, bears the burden of proving factual

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The factual

findings entered by the post-conviction court are conclusive unless the petitioner establishes that the

evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

For a petitioner to successfully overturn a conviction based on ineffective assistance of

counsel, the petitioner must first establish that the services rendered or the advice given was below

“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an

adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). 

The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess

a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,

tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347

(Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

As to the petitioner’s claim that his appellate counsel was ineffective, we recognize that it

is counsel’s responsibility to determine the issues to present on appeal. State v. Matson, 729 S.W.2d

281, 282 (Tenn. Crim. App. 1986) (citing State v. Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App.

1984)). This responsibility addresses itself to the professional judgment and sound discretion of

appellate counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995). There is no

constitutional requirement that every conceivable issue be raised on appeal. Campbell v. State, 904

S.W.2d 594, 597 (Tenn. 1995). The determination of which issues to raise is a tactical or strategic

choice. Id.

B. Analysis

The petitioner contends trial counsel did not secure the educational and therapy records of

two of the victims. The post-conviction court found trial counsel’s pretrial preparation was not

deficient. The evidence does not preponderate against this finding. Further, the petitioner has failed

to show that further investigation into the records of the alleged victims would have affected the

results of the trial.

The petitioner contends trial counsel failed to secure expert assistance to develop a defense.

Initially, we note that at the time of the petitioner’s trial in November 1994, Tennessee had not

recognized an indigent defendant’s right to the appointment of an expert in non-capital cases. See

State v. Barnett, 909 S.W.2d 423, 425 (Tenn. 1995). It was not until Barnett that this right was

recognized. Id. at 424. We further observe that it is highly doubtful that expert testimony relating
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to the credibility of the victims would have been admissible. See State v. Coley, 32 S.W.3d 831, 837

(Tenn. 2000) (holding that the subject of the reliability of eyewitness identification is not the proper

subject of expert testimony); State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993) (holding that

expert testimony concerning symptoms of post-traumatic stress syndrome exhibited by victims of

child abuse invades the province of the jury in making its own determination of credibility). The

post-conviction court found trial counsel was not ineffective by failing to request expert assistance.

The evidence does not preponderate against this finding. Further, the petitioner has not shown that

expert assistance would have affected the results of the trial.

The petitioner next contends trial counsel was ineffective in failing to request the trial court

strike the testimony of one of the victims when the tape of the victim’s pretrial interview had been

lost. Trial counsel testified he had a written transcript of his statement. The petitioner has not

established deficiency nor prejudice.

The petitioner contends trial counsel should have subpoenaed the petitioner’s bankruptcy

attorney to rebut the state’s implication that the petitioner had filed a fraudulent bankruptcy petition.

The petitioner contends the bankruptcy attorney would have testified that this was a clerical error.

However, the bankruptcy attorney did not testify at the post-conviction hearing. See Black v. State,

794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that when a petitioner contends trial counsel

failed to present a witness, the witness should be presented by the petitioner at the post-conviction

hearing). Further, the petitioner has failed to show that such testimony would have affected the

results of the trial in which the victims’ credibility was the primary issue.

The petitioner contends trial counsel was ineffective in failing to interview or subpoena a

DHS investigator and an employee of Home Ties who were involved in the initial investigation.

Again, the petitioner failed to secure the testimony of these two potential witnesses at the postconviction hearing. We are unable to speculate as to the significance of these two potential

witnesses. See id.

Finally, the petitioner contends appellate counsel was deficient in failing to raise as an issue

on appeal the matter concerning the alleged fraudulent bankruptcy petition and was further deficient

in not allowing the petitioner to play a more integral role in the appeal. Whether or not to raise the

bankruptcy issue on appeal was within the sound discretion of appellate counsel. See Porterfield,

897 S.W.2d at 678. In addition, the petitioner has failed to establish that any further consultation

with the petitioner would have led to a different result on appeal. 

All issues relating to ineffective assistance of counsel are without merit.

PREVIOUSLY DETERMINED/WAIVED ISSUES

The petitioner contends the post-conviction court erred in not granting him relief based upon

the following allegations: (1) the jury instruction defining “reasonable doubt” given at his trial was

unconstitutional; (2) the Criminal Injuries Compensation Act deprived the petitioner of a fair trial

because alleged victims must cooperate with the state in order to secure compensation; (3) the trial

judge in his original trial was biased; (4) the appellate court in his direct appeal was biased; (5) the
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indictment was void for failure to allege the mens rea for the offenses; (6) the appellate court lacked

jurisdiction to declare that the omission of the mens rea in the indictment did not deprive the

petitioner of his constitutional rights; (7) the trial court erred in effectively amending the indictment

when it set forth in the jury instructions the proper mens rea for the offenses; and (8) suggestive

questioning of the alleged victims deprived him of his constitutional rights. We are unable to agree

with the petitioner’s contentions.

A ground for post-conviction relief is waived if it was not presented to the appellate court

when the ground could have been presented. Tenn. Code Ann. § 40-30-206(g). Further, a ground

for post-conviction relief is previously determined if the appellate court has ruled upon its merits

after a full and fair hearing. Id. § 40-30-206(h). If an issue has been waived or previously

determined, it is not the proper subject of post-conviction relief. Id. § 40-30-206(f).

The reasonable doubt jury instruction, the effect of the Criminal Injuries Compensation Act,

the alleged bias of the trial judge, and suggestive questioning were not raised on direct appeal and

are waived. We further conclude that had they been raised, the petitioner would not have prevailed

on these issues. The failure to allege the mens rea in the indictment was specifically considered by

the appellate court in the direct appeal and found to be without merit. John Claude Wells, III, 1997

Tenn. Crim. App. LEXIS 533, at **12-13. Thus, the three issues relating thereto have been

previously determined. As to the petitioner’s contention that the Court of Criminal Appeals was

biased in the direct appeal, no request for recusal was made and this issue was not presented in the

application for permission to appeal to the Tennessee Supreme Court. Accordingly, this issue is

waived.

CUMULATIVE ERRORS

Finally, the petitioner contends the cumulative effect of the various errors alleged in his

petition justify relief. We discern no errors; thus, this issue lacks merit.

Based upon our review, we affirm the judgment of the post-conviction court.

 

JOE G. RILEY, JUDGE