### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE April 22, 2003 Session JOHN C. WELLS, II I 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 p eti tioner was originally convicted by a

Davidson County jury

on nine counts of aggravate d sexual battery

and rec eived an

effec tive nine

ty- ye ar sente

nce. He now appe als the de

nial of po stconviction relief, contending: (1) the post-conviction judge , who was a Dep ut y District Attorney General at the time of the original prosecution, should have recuse d herself; (2) he received ineffective assistance of

trial and appella te counsel; (3) numerous errors of constitutional dimension occurred at his original trial and on direct appeal; and (4) c umulative errors require that he b e granted relief. In spite of our c oncern s regarding the recusal issue, we are unable to discern a ny material distinctio ns with pri or case s which ha ve affi rmed the failure to recus e. Acco

rdingly , we affirm t he judg ment of the

post-con viction c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., deliver ed the opi nio n of the court, in which J AMES C URWOOD W ITT , J R ., and N ORMA M C G EE O GLE , JJ., joined.
Mon te D . W atk in s an d Br uce Po ag, Nas hvi ll e, T enn ess ee, for th e ap pel lan t, Jo hn C . W ell s, III.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Ma rn ey, Assistant Attorney Genera l; Victor S. Johnson, III , District Attorney Gene ral; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
After the petitioner was convicted on nine counts of aggra vated sexual battery a

nd sentenced to an effective term of

ninety y ears in the Department of Correction, he filed a direc t appeal

to this court. This court affirmed all of the convictions and sentences. See State v. John Claude We ll s, III , No. 01C 01- 950 5-C R-0 014 6, 1 997 Ten n. C rim . Ap p. LE XIS 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.-2-

A portion o f the unde

rlying facts are g arnere d from our opinion in t

he direc t appeal : The defendant moved to Nashville in 1987. He subs equently leased an apartment in the Turtle Creek apartment complex. Eventually , he l ea sed a home locatedon Tobyly

nn Courtin Nashville. In December of 1991, the defendant

moved to Austin, T exas. A young vic tim, J.T.K., decided to earn spending money during the summer of 1989. He w ent from a

partmen t to apartment

in the Turtle Creek complex offering to remov e tras h bags f

rom a p erson ’s apar tment to a garb age containe r for fif ty c ents per bag. The defendant’s apa rtment was one of the apartments approached by J.T.K. The defenda

nt agre ed to use the minor’s services. The minor testified the defendant told him he did n ot have a

ny t rash, but he would g

ive him $5. 00 to wash

his dishes

. The defendant testified he employed the minor to remove his trash. A close friends hip developed between J.T.K. and the defenda nt.
J .T.K. began spending weeke nds at the defendant’s apartmen t. He introduce d other young boy s 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 defenda nt. These two victims also began spending weeken ds at the d efenda nt’s apa rtment wit

h th e other young

boys the defenda nt had met

. The defendant

provided video g ames, boa

rd game s, and rented movies for the bo ys on the weekends. He took the boys to a movie theater on occasion. In addition, he took several of the boy s to Opryland, King s 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 ne a r Nashville. He also took the boys on c amping trips. The defendant took some o f the boy s to New Orleans f or the Sug ar Bowl

. He also took the boys to fast food resta urants. The defendant

paid for all of

the expenses incurred for the f ood and the trips.
J.T.K. to ok Tae kwondo lessons. The defendant paid for these lessons. He loaned money to R.A.V.’s mot her. He gav e her a m

otor vehi cle. He

also paid six months rent in

advance when she moved to a duplex. He gave the boys nice

present s on Christma s and thei

r birthda ys. Most of the boys wer

e from families without fathers in the household . Some of these boys had stepf

athers whom they

did not like. The defendant was a fatherfigure to these y

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

the defenda nt. The police were called. D.D.N. g ave the police a statement implicating the defendant. Aninvestigation ensued. Detective Bruce Amos of the Metropolitan Police Department interviewed t he defendant on May

17, 1991. Between July 8,-3-

1991 and November 22, 1991, he interviewed the y oung boys who spent

time at the defendant’s apartment. The defenda nt made entries in a desk

calendar of the dates of the interviews. He admitted he left Nashville shortly afte r Thanksgiving in 1991.
When the defendant arrived in Texas, he took steps to chang e his identity from John Claude Wells, II

I, to Duane Wells. He gave h is new emp loy er and ot

hers a f alse social security number. T he defendant was subsequ ently se nt to Philadelphia, Pennsy lvania to install wireless cable television units. While in Philadelphia, he was stopped for a

traffic offense. He g ave the officer his Tennessee driver’s lice nse which containedhis correct name. The officer a pparently ra

n an N CIC check. The check revea led he was wanted in Tennessee for ag gravated sexual battery . He was subsequently extradited to Tennessee . He remained in jail until the trial.
Jo hn C lau de W ell s, III , 1997 Tenn. Crim. App. LEXI S 533, at **3-6 (footnote omitted)

. The proof established that each of the three mal e victims was under thirteen y ears of age. Six of the co nvictions involved t he same v ictim, and all incide nts occurr ed prior to April 22, 1991. Two of the convictions involved a separate victim and occurred prior to September 17, 1991. The final convicti on involve d a separ ate victim and occurred pr ior 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 appella te counsel were de

ficient i n severa

l r espects. The petitione r stated h is trial c ounsel wa s unable t o effec tively

cross-e xamine the v

ictims bec ause

trial counsel did not subpoena necessary school and therapy records of all of the victims. T h e petitioner further claimed that, due to the nature of the case, trial cou

nsel shoul d have secured expert assistance to establish that the child victims had been coerced and were untruthful. He further contende d 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 alleg ed fraudulent bankruptcy

petition which he had filed. The petitioner contended trial counsel sho uld have subpoenaed

his bank ru pt cy a ttorney who would have testified that this was a clerical error which was not the re spo nsibility of the petitioner. The petitioner furthe r testified that trial counsel was deficient in failing to subpoen a a DHS investigator and a Home Ties worker, both of whom were involved in the initial investigation. Fina lly, the petiti oner tes tified tha t, in his view, appellate counsel was deficien t in failing to raise the issue of the bankruptcy petition on appeal and in not allowing the petiti oner to be

an integ ral par t of the a ppellate process
. The petitioner presented

the testi mony of Dr. William Berne t, a child psychiatrist. The essence of Dr . Be rnet’s testimony was that alleg ed victims of child sexual abuse are sometimes untruthful due to improper influence and/or other causes. Dr. Bernet had reviewed various records-4-

involving this case and opined that some of t he victims’ allegations were consistent with truth, wherea s others w ere not. Trial counsel, an assista

nt public defender at

the time of

trial, te stified th at he and

the public defender’s staff had done an extensive investigation in the case. He conferred w ith the petitioner on numerous occasions, and the petitioner was aware of the nature of the defense to be presented. Trial counsel secured n umerous records prior to trial. Trial counsel did not seek the appointment of an expert witness because counsel did not believe the request would be g ranted. Fu rthermore, trial counsel b elieved

expert tes timony

address ing th e cred ibility of the victims would be inadmissib le 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. I n short, trial counsel was unaware of any thing else he could have done to provide a better defense

.

POST-CONVI CTION COUR T’S FINDINGS The post-conviction court filed extensive findings of fact and conclusions of law. Among thos e find ings an d conc lusi ons we re the f ollo wing:
1. trial counsel conducted a proper pretrial investig ation of the case;
2. trial counsel w as not def icient in f

ailing to seek expe

rt testimo ny o r assi stance i n developing a defense;
3. trial counsel was not defic ient in failing to take further action with reg ard to the lost taped interview of one o f the vic tims;
4. the issues involving the bankruptcy petition were resolved on appeal; and
5. appella te counsel was not deficient in researching and presenting issues for the dir ect appeal. The post-conviction court dismissed the petition.

RECUSAL O F POST-CONVICT ION JUDGE
A. Pro cedural Ba

ckground
The petitioner moved the post-conviction judge to recuse herse lf because shewas a

Deputy District Atto rney Genera l duri ng the p etit ioner ’s ori ginal p rosecu tion . The p ost-c onvi ction judge filed an order deny

ing 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), Te nnessee Supreme Court1 Th is canon c ontempl ates a wri tt en wai ver w hen t he ju dge i s, in f

act, dis quali fi ed fr om hearing the matter, and the lawyers “joi ntl y propos e” i t i ndepende ntl y of the judge . Canon 3(F) Commen tar y. Itis apparen t t he post -con vict ion court found no basis for disquali ficati on and, thus, no need for a waiver.

2 This is an issue that frequently arises since form er prosec utors often bec ome trial judg es. -5- Rule 10, “that would allow this Court to hear the case.” 1 The petitioner sought permission from the post-co nviction court fo

r an inte rlocutor y a ppeal pur suant to Rul e 9 of the Tenness ee Rules o f Appellat e Procedure; the post-conviction court denied the request. The petit ioner then sought an extraordinary

appe al to this cou

rt pursua nt to Rule 10

of the Te

nnessee Rules of A

ppellate Procedure; this court denied the application.
After oral ar gument i n the case now before us, we remanded to the post-conviction court for additional findi ngs on t his i ssue. The po st-co nvict ion j udge made additiona l finding s, and thos e findi ngs have been properl y c ertifie d to this court. Upon remand a

nd after a heari ng, the

postconvicti on judge

made fin dings wh

ich are undispute d. We summa

rize the f indings:
1. At the time of the petitioner’s originaltrial, the judge-then-prosecutor was one of two Deput

y D istrict At

torney s Gener

al in an of

fice ha ving ove r forty attorne ys; 2. Alth ough she had superv isory responsibilities, they did not include child sexual abuse ca ses; 3. She did n ot superv ise the petitioner’s case nor the Assistant District Attorney General who prosecuted the petitioner’s ca se; and
4. She had no contact with the p etitione r’s case “either directly or indirectly” a

nd 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 lawye

r in the matter in controversy or a lawyer with whom the judge practiced served i n the matte

r in contr oversy . Tenn. Sup . Ct. R.10, Code of Judicial Conduct, Canon 3(E)(1)(b). However, the commenta ry to that section reflects that l a wyers in a governmental agenc y are not c onsidered in practice with other lawy ers employed by that agency within the meaning of this mandate. Id. Nevertheless, the commentary make s clear that recusal may still be required if “the judge’s impartia lity might reasona

bly be questioned because of such association.” Id. At issue in this appeal is whether the post-con viction jud

ge should have recused herself under the g eneral 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 Com mitt ee of this state opined that a judge is disqualified “from presiding over any c ase that was pending in the district during the time he [or she] was an assistant3 The Code of J udici al Condu ct wa s su bsta nti all y al ter ed ef fect ive Janua ry 27, 1997; however, the mandat e for recusal when the “jud ge’s imp artiality migh t reaso nab ly be q uestion ed” rema ined u naltere d. See Te nn. Su p. Ct. R. 10, Code o f Judicial Conduct, Canon 3 E(1). -6- distr ict at torney g eneral.” Judicial Ethics Committee, Formal Opinion No. 88-2 (1988). The Judicial Ethi cs Comm ittee concluded the “judge’s impartiality might reasonably

be questioned” under such circumst

ances. Id. 3 Thus, recusal would clearly be required under this opinion. Judicial ethics opinions constitute a “body of pr inciples and objectives upon which judges can rely for guidanc e.” 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 courtdetermined that disqualification was not required where the p ost-c onviction judge was “one of nearly seventy attorne

ys” employ

ed by the districtattorney g eneral’s office during the p rosecu tion of the petitioner; he never assisted in the prosecution of

the case; and he knew nothing about the fa cts. Owens v. State , 13 S.W.3d 742, 757 (Tenn. Crim. App. 1999). This published opinion supersedes the previously issued e thics opinion. See Tenn. Sup. Ct. R. 4(G) (specify ing that published judicial opinions are controlling authority).
Si mi la rl y, this court

held a judge w as not disq ualif ied fr om hea ring a post-conviction relief petit ion when the

judge “ had no inv olvement , whethe r investig atory

or super visory , with

th e petitioner’s criminal case while she was in the district attorney ’s office,” a nd t he judge “departed from the district attorney’s of

fice over one year pri or to the indictment’s return.” Jessie C. Minor v. State o f Tenne ssee , No. M2001-00545-CCA-R10-PC, 2001 Tenn. Crim. App. LEXI S 932, at **31-33 (Tenn. Crim. App. Dec. 5, 2001, at Nashville). This court also held that a judg e may preside over a rev ocat ion hearing even though the judg e 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. Ma

rgo Elli s , No. W20 00

- 02242-CCA-R3-CD, 2001 Tenn . Crim. App . LEX IS 579 , at **4-5 (Tenn. Cr im. App. July 19, 2001, at Jackson). In addition, this court held a judge- then-prosecutor was not disqualified from hearing a post-con viction re lief petition wher

e, as an a ssi stant distr

ict attor ney gener al, he wa s merely present in the courtroom during one pre-trial hear ing due to the absence of the assig ned prosecutor and knew not hing about the petitioner’s cases. Victor Jame s Cazes v. Sta te , No. W1998-00386- CCA-R3-PC, 19 99 Te nn. Crim. App. LEXI S 1194, at **52-53 (Tenn. Crim. App. December 9, 1999, at Jackson).
E. Standard of Review
A trial judg e should r

ecuse hi mse l f or her self whe never th e judge “has any doubt as to

his [or her] ability to preside impartially in a cri minal case or whenever his [or her] i mpartiality can reasonab ly be questioned .” Pan nell v. State , 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001) (emphas is added). Although the first proviso is a subj ective te st, the latte r emphas ized provi so-7-

requires an objective standard. Alley v. State , 882 S.W.2d 810, 820-21 (Tenn. Crim. App. 1994). “Thus, whil e a tri al jud ge should g rant a r ecusal w heneve r the judg e has any

doubts abo

ut his or her ability to presid e imparti ally , recusa

l is also war ranted when a person of ordinary prudence in the judge’ s posi tion, knowing all of the facts known to the judge, would find a re asonable basis for questioning the judge’s impartiality.” Id . at 820. The trial judge retains discretion over his or her recusa l. State v. Smith , 906 S.W.2d 6, 11 (Tenn. Crim. App. 19 95). Un less the evidence in the record indicates that the trial judge clearly abused his or her discretion by n ot disqual

ify ing himse lf 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 i s not whet her the post-conviction judge could be, or was, fa ir and impa

rtial; the re is noth ing 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. Analy sis
In the Owens , Ellis , and Cazes cases cited a bove, the re was no indication the judge-thenprosecutor

had any super

visory responsibilities. I n Minor , the judge- then-pro secutor had supervisory

responsibilities although not over the particular case or pr osecutor; however, the judgethen-prosecutor

was no lon ger in t

he dist r ict attorney’s of

fice when the relevant indictment was returne d. Thus, these cas es are d istinguis hable fr

om this cas e, but only

to this exten

t. Neither this court nor our state supreme court has addressed the issue of w hether r ecusal i s required where th e ju dg e-then-prosecutor had gene ral supervisory r

esponsibilities or supervisory responsibilities over the prosecutor or case at issue. “[I]f a judge-pre viously-prosecutor supe

rvised or even re corded h

is or her name on do cuments of record in a cas e now b efore t he cou rt, th e judge may be requi red to dis qualify

[himself or

herself ], even if there is n o showing

that t he jud ge was involved or had kn owledg e of the c ase while prose cutor.” Jeffrey M. Shaman, et a l., Judicial Conduct and Ethics § 4.16, p. 1 42 (3d ed. 2000). We further recognize that inconve nience to the court or docket concerns play

no role i n the determination of whether a judge’s impartiality can reasonably

be questioned. However, the undisputed record in this case reflects the judg e-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 b enefit of our pr ior 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 Gene

ral with general supervisory responsibilities when the case wa s tried, e ven thoug h those responsi bilities did

not extend t

o the cas e at issue. Ne

verthel e s s, in spite o f our con cerns, w e are un able to di scern a materia l distinctio n in this case, a s compar

ed to our other

cases, t hat is suff icient to justify a depar ture fro m those hol dings. Alth ough we invite

further appella te review of this is sue, we c onclude, in light o f our pri or case s, the post-conviction judge did not err in refusing to re cuse herself.-8- INEFF ECTIVE ASSISTA NCE OF C OUNSEL
A. Standard of Review
The petitioner contends he was deprived of the effective assistanc e of both trial and appe llate counsel. The petitioner, in th is post-conviction proceeding, bears the burden of proving factual allegations by clear

and convincing evidence. Tenn. Code Ann. § 40- 30-2 10(f). The factual findi ngs entered by

the post-conviction court are conclusive unless the petitioner establishes that the evidence preponderates agains tthose findings. Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001).

For a petitioner to suc cessful ly o verturn a convic tion base d on in e ffective assistance of counsel, the petiti oner must first establish that the services rendered or the advic e given was below “the range of competence de manded of attorney s in criminal cas es .” Baxter v. Rose , 523 S.W.2d 930, 936 (Ten

n. 1975). Second, t

he petitio ner must s h ow that the deficiencies “actually had an adverse effect on the defe nse.” Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The petitioner is notentitled t o the bene fit of hind sight; the petiti oner may not second-gue ss a reasona bly based tr ial strat egy ; and the p etitioner may no t criticize a sound, b ut unsucc essful, tactical decision made after adequate pre paration for the case. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Cr im. App. 19 94); Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
As to the petitioner’s claim tha t his appel late cou nsel was ineffec tive, we r ecogn ize that it is counsel’ s respons ibility to determine the issues to present on appeal. State v. Matson , 729 S.W.2d 281, 282 (Tenn . Cri m. App . 1986 ) (cit ing State v. Swanson , 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). This responsibility addresses itself to the profe ssional jud gment and sound discretion of appell ate counsel. Porterf ield v. Sta

te , 897 S.W.2d 6 72, 678 (T enn. 1995 ). There is n o constitutional requirement that every conceivable issue be raised on appeal. Campbell v. State , 904 S.W.2d 594, 597 (Tenn. 1995). The dete rmination of which issues to r

aise is a t actica l or strat egic 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 pr eparation was not deficie nt. The evidencedoes not preponderate against this finding. Further, the petitioner has failed to show that further investigation into the records of the a l leged victims would have affected the results of the trial

. The petitioner contends trial counsel failed to secure expert assistance to develop a defense. Init ia ll y, we note that at the time of the petitioner’s trial in November 1994, Tennessee h ad no t recognized

an indigent defendant’s right to the appointment of an expert in non-capital cases. See Statev. Barnett , 909 S.W.2d 4 23, 425 (Tenn . 1995). I t was not un

til Barne tt that this right was recognized. Id. at 424. We f urther o bserve t hat it is hig

hly doubtful that expert testimony relating-9-

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 ey

ewitness identification is not the proper subject of expert

t es timony ); State v. Ballard , 855 S.W.2d 557, 561 (Tenn. 1993) (holding that experttestimony concerning symptoms of post-traumatic stress sy ndrome exhibited by victims of child abuse invades the province of the jury in making its own determination of credibi lity). Th e 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 as sistance

would hav e affe cted the

results of the trial

. The petitioner next contends trial counsel was ineffective in failing to reque st 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 statemen t. The petitioner has not established deficiency

nor prejudice.
T he petitione

r conten ds trial c ounsel sho uld have s ubpoena

ed the pe titioner’ s bankrup tc y 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 prese

nt a witness, the witness should be presented by the petitioner at

the post-conviction hear in g). Further, the petitioner has failed to show that such testimony would have affected the results of the trial in which the victims’ credibility w as the primary issue.
The petitione

r conten ds t

rial counsel was ineffective in failing to interview or subpoena a DHS investigator and an employee of Home Ties who were involved i n the initial investigation. Again, the petitioner failed to secure the testimony of these two poten

tial witne sses at the

postconvi ction hearing . We are unable to speculate as to the significanc e of these two potential witnesses. See id

. Fi na ll y, the petitioner contends appella te counse l was def icient in failing to raise as an issue on appeal the matter concerning the alleg ed fraudulent bankruptcy petition and was further deficient in notallowing

the petiti oner to pl ay

a more in tegra l role in th

e appea l. Whether

or not toraise the bankruptcy

issue on appeal was within the sound discretion of appellate c o unsel. See Porterf ield , 897 S.W.2d at 678. In addition, the p etitione r has failed to establish that any further consultation with the petitioner would have led to a different result on appea l.
All issues relating

to ineffective as sistance

of counse

l are wit hout merit

. PREVIOU SLY DETERMI NED/WAIVED ISSUES
The petitioner

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

allega tions: (1) the jury instruction defining “reasonable doubt” given at his trial was unconstit utional; (2) the Criminal Injuries Compensation Act deprived the pe titioner of a fair trial because allege d victims mu st cooper ate with t he state in order to secure compensation; (3) the trial judge in his original trial was biased; (4) the appellate court in his direc t appeal was biased; (5) the-10-

indictmentwas 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 di d not deprive the petitioner of his con stitutiona

l rights; (7) the tr

ial cour t erred in effe ctively

amending the indictment when it set forth in the jury instructions the proper mens re a for the offenses; and (8) sugg estive questioning of the alleged victims deprived him of his constitutional rights. We are unable to agre e with the pe

titioner’ s content

ions.
A ground for post-conviction relief is waived if it was not pre sented to t he app ellate court when the ground

could have been

presented. Tenn. Code Ann. § 40-30-206(g) . Further, a ground for post-conviction relief i s previo usly determin ed if the appella te court has rule d upon its me

rits after a full and fair hearing. Id. § 40-30-2 06(h). I f an issue

has been

waived o

r previousl y 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 I njuries Compensation Act, the alleged bias of the trial judge, a nd suggestive questioningwere not raised on direct appeal and are waived. We further conclude that had they bee

n raised, the petitioner would not have prevailed on these issues. The failureto all ege the mens rea in the indictment was specifically considered by the appella

te court in the direct appeal and found to be without merit. Jo hn C lau de W ell s, III , 1997 Tenn. Crim. App. LEXI S 533, at ** 1 2-13. Thus, the three issues relating thereto have been previous ly

determined. As t o the petitioner’s contention that the Court of Criminal Appeals was biased in the direct

appeal, no request for recusal wa s made andthis issue was not presented in the application for permission to appeal to the Tennessee Suprem e Court. Ac cording ly, this issue i s waived.
CUMULATIVE ERRORS
Finall y , the petiti oner con tends the cumulativ e effe ct of the various e

rrors a lleged in his petition ju stify

relief. We discer

n no erro rs; thus, th

is issue la cks merit

. Based u pon our re

view, we affirm t he judg ment of the

post-con viction c ourt.

JOE G. RILEY, JUDGE