IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 27, 2010

DORMAN O’NEAL ELMORE, JR. v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Cumberland County

No. 5849 David Patterson, Judge

No. E2009-01075-CCA-R3-PC - Filed May 17, 2010

A Cumberland County jury convicted the petitioner, Dorman O’Neal Elmore, Jr., of five

counts of rape, Class B felonies. The trial court sentenced the petitioner to an effective

sentence of twenty-two years in the Tennessee Department of Correction. The petitioner

pursued a delayed appeal pursuant to the Post-Conviction Procedure Act, and this court

affirmed his convictions and sentences. In his post-conviction petition, the petitioner alleges

that he received ineffective assistance of counsel at trial. Specifically, the petitioner argues

that trial counsel’sfailure to file various pre-trial motions, to properly prepare and investigate

the case, and to investigate the victim’s background constituted deficient performance and

prejudiced the defense. The post-conviction court denied relief. Following our review, we

affirm the judgment of the post-conviction court.

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

J.C. MCLIN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

JAMES CURWOOD WITT, JR., JJ., joined.

Caroline E. Knight, Crossville, Tennessee, for appellant, Dorman O’Neal Elmore, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General, for the appellee, State of Tennessee.

OPINION

Background

This court, in its opinion on delayed appeal,summarized the facts underlying this case

as follows:
In May of 2000, a Cumberland County grand jury returned a

multi-count indictment charging the [petitioner] with eight counts of rape of

his ex-wife’s teenage daughter. Prior to trial, the State dismissed counts four

through six of the indictment. June Walker, the victim’s mother began dating

the [petitioner] in October of 1996, and the [petitioner] moved into the Walker

home around February of 1997. At trial, the victim testified that the

[petitioner] raped her on five separate occasions. The first incident occurred

when the victim’s mother took the victim’s brother to the hospital in March of

1997, when the victim was thirteen years old. The victim testified that the

[petitioner], who at the time was wearing a pair of tan shorts, came into her

bedroom that evening, and “he took my arms and took them over my head.

And he took my pants off and raped me.” The victim further testified that she

tried to kick the [petitioner] and push him away without success. The

[petitioner] explained to the victim that because “he couldn’t get it from [her]

mother, . . . he’d get it from [the victim].” Furthermore, the victim testified

that she began to bleed, and the [petitioner] told her that she had lost her

virginity. He also warned the victim that if she told her mother about what

happened, he would kill the entire family.

The second such incident occurred the following day. The victim

testified that the [petitioner] picked her up from school and took her home.

The two were alone in the house, and the [petitioner] called the victim upstairs

to her mother’s bedroom. Believing that the [petitioner] was going to

apologize to her because of his actions the previous night, the victim walked

upstairs. At this time, the [petitioner] again removed the victim’s pants, held

her down, and raped her, while wearing a condom. The third such event,

which the victim testified she believed occurred in April of 1997, took place

as the victim sat in the passenger seat of the car near a set of dumpsters in the

Linary community of Cumberland County. The [petitioner] forcibly took the

victim’s hand from the side of her seat, unzipped her pants, and “stuck his

penis in [her] vagina.”

The victim moved to West Virginia at the end of the 1997 school year

to live with her father. She attended school in West Virginia the following

school year. The [petitioner] and the victim’s mother married in February

1998, and the victim returned to Crossville in August of 1998. The [petitioner]

and the victim’s mother divorced in October of 1998 but continued to maintain

a relationship. The fourth incident took place in October of 1998 when the

victim’s grandmother sent her with the [petitioner] to buy a gallon of milk.

The victim testified that the [petitioner]stopped behind Cat’s Car Wash, where

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“he unzipped his pants and stuck [the victim’s] hand over his penis. And he

stuck it in [her] mouth and started pushing [her] head up and down.” Two

weeks before Christmasin December of 1998, the fifth incident occurred when

the [petitioner] asked the victim to go to Wal-Mart with him ostensibly to look

at a ring for her mother for Christmas. Instead, the [petitioner] drove the

victim to the Camelot community where he told the victim to exit the vehicle.

The victim testified, “he pulled my pants down to my ankles and laid me on

the hood of his car and stuck his penis in my vagina.” The victim kicked the

[petitioner] and “busted his mouth.”

Several days before New Years, the victim told her mother and the

[petitioner] in a room full of people that the [petitioner] had raped her. In

response, the victim’s mother told the [petitioner] to get out of the house, and

she reported the rapes to law enforcement. The victim’s mother continued to

communicate with the [petitioner] and recorded their conversations on two

separate occasions, once on the phone and once in person at a park in the

presence of the victim. The tape recordings were admitted into evidence with

redactions. Initially, the [petitioner] admitted raping the victim twice, but the

victim’s mother testified that after the victim listed each incident, the

[petitioner] admitted to each of them.

At the close of proof at the February 15, 2001 trial, the jury found the

[petitioner] guilty of all five counts of rape as indicted. Following a

sentencing hearing on April 11, 2001, the trial court sentenced the [petitioner]

to eleven years for each count of rape. For sentencing purposes, counts one,

two, and three were grouped together with the sentencesrunning concurrently.

Additionally, counts seven and eight were grouped together with the sentences

running concurrently. The sentences from the two groups were ordered to be

served consecutively for an effective sentence of twenty-two years in the

Department of Correction. The judgment of conviction was entered on April

23, 2001.

On June 14, 2001, the [petitioner] filed a motion for new trial, which

was denied. No notice of appeal was filed. The [petitioner] filed several

motions in an attempt to determine the status of his appeal. On October 7,

2004, he filed a pro se “Motion to Produce Transcripts/ Records.” He also

filed a pro se Writ of Mandamus on January 24, 2005, alleging that his trial

counsel had falsely represented to him that he had in fact filed an appeal. The

record reflects that in an order dated March 21, 2005, the trial court appointed

post-conviction counsel to represent the [petitioner] and ruled that it would

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treat the [petitioner]’s motions as a “Motion for Delayed Appeal and/or Post

Conviction Relief Petition.”[FN1]

FN1. The record reflects that appointed counsel also filed a separate petition

for post-conviction relief seeking the delayed appeal of his rape convictions

based upon trial counsel[’s] . . . failure to do so.

A post-conviction hearing was held on August 31, 2005, at which the

[petitioner] asserted that he was mislead to believe that trial counsel had in fact

filed an appeal. On September 13, 2005, the trial court entered an order

pursuant to Tennessee Code Annotated section 40-30-113 (2003) which

provided that “the [petitioner] shall file either an appeal or written waiver of

appeal within (30) days herefrom.” Relying upon Wallace v. State, 121

S.W.3d 652 (Tenn. 2003), the trial court concluded that the [petitioner]

“erroneously believed that trial counsel had filed an appeal and wherefore due

process requires a tolling of the [one-year] statute of limitations” for

post-conviction petitions. On September 20, 2005, the [petitioner] filed a

notice of appeal.

Dorman O’Neal Elmore, Jr. v. State, No. E2005-02263-CCA-R3-PC, 2006 WL 2482949,

at *1-3 (Tenn. Crim. App. at Knoxville, Aug. 29, 2006). On appeal, the petitioner challenged

the sufficiency of the evidence, the admission into evidence of the audiotaped conversations

between the petitioner and the victim’s mother, and his sentencing. This court affirmed the

petitioner’s convictions and sentences, finding that the evidence was sufficient to uphold his

convictions, that he waived the issue of evidentiary error, and that his sentence was

appropriate.

The present appeal stems from the petitioner’s amended petition for post-conviction

relief, filed on October 16, 2007. The post-conviction court held an evidentiary hearing on

March 20, 2009, at which trial counsel and the petitioner testified.

On direct examination, trial counsel testified that the trial court appointed him to

represent the petitioner on May 30, 2000. He agreed that the indictment did not list the exact

time and dates of the offenses. He did not file a motion for a bill of particulars because the

district attorney general had an open file policy that enabled him to estimate the possible days

on which the offenses occurred, and he used the locations of the offenses coupled with

estimated days to determine where the petitioner was at the time of each offense. Trial

counsel did not file a notice of alibi. He did not “recall any particular outrage . . . in the

public” over the offenses and did not file for a change of venue. Trial counsel filed a motion

for discovery and testified that the state provided him with everything in its file. He did not

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recall any exculpatory evidence and did not file a motion to compel specific evidence. Trial

counsel did not request funds from the Administrative Office of the Courts for an

investigator. He said that an investigator could possibly have assisted in locating witnesses,

but he did not recall “any witness to the events, other than . . . the [petitioner] and the

victim.” In the course of his investigation of the case, he went to the location of one of the

events, but he did not speak to “any individuals that may have been present. To [his]

knowledge[,] there were no other people present.” He did not investigate the background of

the victim, but he learned through audiotaped conversations between the petitioner and the

victim’s mother that the victim had previously accused an individual of a sexual offense, for

which the individual pled guilty. Trial counsel did not file a Rule 412 motion “to ask the

court to consider allowing the jury to hear proof of [the] victim’s prior sexual conduct.” He

testified that information about her sexual history would have bolstered her credibility

because the individual’s guilty plea substantiated her accusation against him.

On cross-examination, trial counsel testified that he filed a motion to suppress the

audiotaped conversations because he believed they were “highly prejudicial.”

The petitioner testified that he did not review the audiotaped conversations with trial

counsel, but counsel provided him with a copy of the audiotape. The petitioner said he could

not hear anything on the copied tape. The petitioner said that he would have liked trial

counsel to investigate the allegations that the victim made against the individual who pled

guilty. He was familiar with the allegations because he accompanied the victim and her

mother to the individual’s parole hearing. The petitioner stated that he believed that trial

counsel did not investigate his case at all. He and his father met with trial counsel at

counsel’s office but did not discuss much. Trial counsel told him there was a plea bargain

available, but at their next meeting, trial counsel said that the state had taken the offer “off

the table.” The petitioner testified that there were inconsistencies at trial regarding the

locations of the offenses. He did not go to the locations with trial counsel or assist trial

counsel in finding witnesses at those locations. The petitioner claimed that the state withheld

exculpatory evidence from him because the audiotaped conversations were originally on five

microcassette tapes that were recorded onto one larger tape. The petitioner testified that he

did not know what specific statements would have been recorded on the microcassette tapes,

but he maintained that he made no admissions of guilt.

On cross-examination, the petitioner said that trial counsel tried to suppress parts of

the audiotaped conversations but not the conversations in their entirety. He did not have a

file of everything that trial counsel had. On re-direct examination, the petitioner testified that

he had two “sit-down” meetings with trial counsel prior to trial, each approximately twenty

minutes long. He did not receive any written communication about a plea agreement.

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On April 6, 2009, the post-conviction court filed an order denying post-conviction

relief. The petitioner timely appealed the denial.

Analysis

On appeal, the petitioner argues that trial counsel provided ineffective assistance.

Specifically, he contends that counsel’s failure to file certain pre-trial motions and notices,

including a notice of alibi, motions for a bill of particulars, funding for an investigator, a

change of venue, and to compel the state to produce exculpatory evidence, fell below an

objective standard of reasonableness. Additionally, he contends that trial counsel’s failure

to investigate and prepare for trial and failure to request that the court allow the jury to hear

evidence of the victim’s sexual history constituted deficient performance. The petitioner

argues that trial counsel’s deficient performance prejudiced the defense. The state responds

that trial counsel provided effective assistance. We agree with the state.

In order for a petitioner to succeed on a post-conviction claim, the petitioner must

prove the factual allegations set forth in his petition by clear and convincing evidence. Tenn.

Code Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction

court’s findings unless the petitioner proves that the evidence preponderates against those

findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction

court’s factual findings is de novo with a presumption that the findings are correct. Fields

v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s

legal conclusions and application of law to facts is de novo without a presumption of

correctness. Id.

To establish ineffective assistance of counsel, the petitioner must show that (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced the

defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,

466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004).

Deficient performance is shown if counsel’s conduct fell below an objective standard of

reasonableness under prevailing professionalstandards. Strickland, 466 U.S. at 688;see also

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that representation should

be within the range of competence demanded of attorneys in criminal cases). Prejudice is

shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the

outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. If either

element of ineffective assistance of counsel has not been established, a court need not

address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.

1996). Also, a fair assessment of counsel’s performance “requires that every effort be made

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

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Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The

fact that a particular strategy or tactical decision failed does not by itself establish ineffective

assistance of counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy

and tactical decisions only if the decisions are informed ones based upon adequate

preparation. Id. (citations omitted).

The petitioner presented no proof that counsel’s performance was deficient other than

the conclusory allegations he made in his testimony. Based on trial counsel’s testimony that

he filed pre-trial motions for discovery and suppression of damaging evidence, that he did

not recall damaging publicity, and that the state had an open file policy, coupled with the

post-conviction court’s finding as a matter of fact that there was no exculpatory evidence,

we conclude that counsel’s performance was not deficient when he did not file motions for

a bill of particulars, a change of venue, and to compel the state to produce evidence. The

petitioner failed to present any evidence of an alibi or witnesses who might have testified at

trial. “When a petitioner contends that trial counsel failed to discover, interview, or present

witnesses in support of his defense, these witnesses should be presented by the petitioner at

the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see

also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). Neither the postconviction court nor this court can speculate on what a witness’s testimony might have been

if introduced by counsel. Black, 794 S.W.2d at 757. Additionally, trial counsel testified that

no witnesses were present during the offenses. Trial counsel also testified that he met

numerous times with the state, had all the information that the state had in its files, and went

to at least one location where an offense took place. Therefore, we conclude that the

petitioner failed to show that counsel was deficient in not filing a notice of alibi or a request

for funds to hire an investigator, and he failed to prove that counsel did not properly

investigate or prepare for trial. Finally, trial counsel made a tactical decision not to attempt

to put the victim’s sexual history before the jury because her history tended to bolster her

credibility, and the petitioner has not shown that counsel’s tactical decision was

professionally unreasonable. Furthermore, the petitioner presented no evidence that the

outcome of the proceedings would have been different but for counsel’s errors. We conclude

that the petitioner has not met his burden of proving that trial counsel’s performance was

deficient and prejudicial to the defense. The petitioner is without relief in this matter.

Conclusion

Based on the foregoing reasons, we affirm the denial of post-conviction relief.

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___________________________________

J.C. McLIN, JUDGE

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