### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 18, 200 7

YOU NG BOK S ONG v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2003-C- 1792 Steve R . Dozier , Judge

No. M2007- 00404-CCA -R3-P C - F iled March 4, 2008

The pe titioner, Young Bok Song , appea ls the denial of his petition for post-c onviction relief, a rg uing that th e po st- c on vic tio n c ourt e rr e d in fi nd ing that he re c e ive d ef fe c tiv e a ssi sta

nc e of tr ia l c ouns e l. Following our re view, we aff irm the denial of the petition.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R . and D. K EL L Y T HOMAS , J R ., J J ., joined.

Dw i gh tE

. S co t t , Na s h v i l l e, T en n es s ee , fo r t h e ap p el l an t , Yo u n g Bo k S o n g.

R o b e r t E

. C o o p e r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Da

vid H. F ind le y , A ssi sta

nt A tto rn e y

Ge ne ra l; Victor S. J ohnson, I I I , Distric t Att o r n ey Gene ral; and B rian K. H olmgr en, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

I n 2004, the petitioner wa s convicted by a Davidson County

jury of seven counts of ra pe of a child, a Class A f

elony , and four

counts of ag gra v at ed sexual battery , a Class B f elony , and wa s
se nte nc e d b y

the tr ial cou rt to s ixty -f ive y e ars a t 10 0% in t

he De pa rtme nt o f C or

re c tio n. Hi s
c on vic tio ns were affi rm e d b y thi s c ourt

on dir e c t a pp e a l, a nd our s up re me c ourt

de nie d h is application for

permission to appea l. See State v. YoungBok Song , a/k/a Mike, No. M2004- 02885- CCA-R3-CD, 2005 WL 2978972, at *1 (Te nn. Crim. App. Nov. 4, 2005), pe rm. to appea l denied (Tenn. Ma

r. 27, 2006). All of the rape convictions and a ll but one of the ag g ravated sexual battery convictions st em m ed from ac ts committ ed over the cour se of a

five-y ear span ag ainst S.L ., the daug hter of the petitioner’s e x -g irlfriend, who was eig ht y ear s old a t the time the abuse beg an. I d.-2-

The re maining a g g ravated s exual battery conviction was based on an A pril 2003 episode in which t h e p e t i t i o n e r

t o u c h e d t h e b r e a s t s o f

S

. L. ’ s y o u n g e r

s i s t e r , J

. L.

The witnesse s at trial included the victims, who related the incidents in detail; Chong Suk Pak, the victims’ mother, who de scribed he r re lationship with t he petitioner; B renda Griff ith, the school teac her to whom S.L . first repor ted the abuse ; Dr. Ang ela L atrice McShepar d Carr, a school g uid anc e c ouns e lor wh o sp ok e wi th S.L

. a bo ut the a bu se ; Dr

. Ma

ur e e n Sang e r, a

ps y c ho log ist

wi th Our Kids Ce nt er in N a sh vil le wh o c on du c te d a n in te rv ie w w ithS.L .; C aro ly n Sm e ltze r, a

nurs e prac titioner who conduc ted t he medical examination of S .L .; Edwar d Stott s, a case manag er f or the Depa rtment of Children’s Ser

vices who c onducted a

fore nsic interview of

J .L

. and ar

rang ed for

a fore nsic interview of

S.L . to be conduc ted by

another interviewe r; Detec tive Br ett Gipson with the M e t r o p o l i t an N a s h v i l l e P o l i c e D e p art m e n t S e x C r i m e s U n i t , w h o t e s t i f i e d t h a th e s p o k e w i t h S

. L. one to tw o ti me s b u t n e v e r ta lk e d to J. L

. ; M in dy

So n g , th e p e ti ti o n e r ’ s tw e lv e
- y e ar
- o ld d a u g hter, wh o testified that she c ould not reca ll the petitioner’s eve r telling her a nd J .L . to play

outside by themselves, leaving the petitioner alone with S.L

. in the hous e; and the petitioner, who denie d the char g es and c laimed that the victims were ly ing. I d. at *1-5.

T h e p e t i t i o n e r

f i l e d a t i m e l y pro se petition for post-conviction re lief in 2006 i n wh i ch he raised a number of issues, inc luding inef fec tive assistance of counse l. Post-conviction counsel wa s appo i nted and a

n amende d petition filed on October 19, 2006. Although the petitioner alleg ed numerous instance s of ineff ective a ssistance of c ounsel in his ori gi n al and ame nded petitions, he

c on fi ne s h ims e lf

on a pp e a l to arguin g that cou ns el was ine ff e c tiv e fo r f

a ili ngto o bje c t to inadmissable hea

rsay ; failing to present a

n alibi defe nse and to re quest that the jury be instructed on alibi; failing to r etain an inter prete r for trial; failing to communicate the State’ s plea ba rg ain offe r to the petitioner; failing to reque st a jury instruction on the lesser- included off ense of child abuse; and fa iling to see k a seve ranc e of the offe nses involving diff ere nt victims.

At the J anuar

y 5, 2007, evidentiar

y hear ing, trial counsel testified that he had been pr acticing law for twenty y ear s and that ninety -five perc ent of his pr actice consisted of cr iminal defense . He said that he met with the pe titioner sever al times to discuss the case, both whe n the petitioner wa s in ja il a nd later in his office afte r the petitioner had made bond. Following disc u s s i o n s wi t h t he petitioner, who wa s adama nt that he was not guilty , trial counsel’ s main theory of def ense f ocused on an attempt to discre dit the victims and to show their possible motives for ly ing. H e stated that his independent medic al expert deter mined from his revie w of S.L .’s medica l rec ords t hat her injury

was c onsistent with her alleg ations of ra pe. The re w as not, howeve r, any phy sical evide nce linking the pe tit ion e r t o th e ra

pe :

I mean , b e c a

u s e , w h e n it c a me d o w n to it , it w a s r e a ll y a c r e d ib il it y issue . The phy sical evide nce did not implicate [the petitioner] specifica lly

.
There wer e – as I suppose ever y one rec alls, there was s o m e phy sical evidenc e, althoug h it did not i mplicate [the petitioner]. I t was just injury to the child, but nothing spec ifically

showing[t he petitioner] did it.-3- There was no statement or confe ssion by [t he petitioner], no witnesses other than the ac cuser s; and, so, basica lly in my opinion it came down to cr edibility , except for the – the injury . So, we did explore that.

Trial counse l testified that he and the petitioner explored an alibi def ense, discussinghow the petitioner had move d out of town befor e at lea st one of the incide nts alleg edly o ccur red. H e explained, however , that the long time span alleg ed in the i ndictment preve nted hi m from making any serious attempt t o prese nt an alibi defe nse: “[T] he problem with an alibi defense . . . is, bec ause of the broa d time fra

me, i f I rec all corr ectly , he was out [of] town for a part [ of] that tim e fr ame but not the entire time frame . So, I

. . . j u s t d id not see an a libi defense be ing ve ry viable.” T rial counse l

rec alled that the pe titioner testified on direc t e x amination as to the date that he had move d out of town

and va g ue ly re c a lle d h a vin g a dd

re sse d th os e tim e dis c re pa nc ie s d ur ingc los ingargume nt. He a lso

rec alled that S.L

. alleg ed that at least one of the incidents had oc curr ed whe n the petitioner re turned to town for a visit. He said that his primary rea son for not filing a motion to sever the offe nses was that, g iven the close relationship between the vic tims, he did not believe the trial court would g rant the motion. I n addition, in some c ases he thought it be st to try to de fend e very thing at one trial rather than to g ive the State “two shots at [his] client.”

Trial counse l t es t i fi ed that he filed a motion for an interpr eter to be provided at State’s expense bec ause, although he and the petitioner were able t o communicate effe ctively with eac h other in a c a su a l of fi c e se tti ng , h e wo rr ie d th a t th e le a ding and argume ntativ e qu e sti on s p os e d o n c ro sse xami natio n mi g ht pr e se nt dif fi c ult ie s fo r his c lie nt. Tr ia l c ouns e l c on c e de d that he may have tol d the trial cour

t at the hea

ring on his motion for appointment of an interpr eter that the petitioner spoke “ver y g ood Eng lish.” He said it was not unusual f o r hi m to have to re state something two or three times before the petitioner unde rstood what he w as asking, but he a lway s understood the Eng lish the pe tit ion e r u se d in

re ply . A s h e re c a lle d, the pe tit ion e r “ jus t kin da (s ic ) we nt a lon g wi th t he pr og ra m” when he inform ed him that he would be re questing an interpr eter ; he had no memor y of the petitioner’s e ither asking or instructing him to hi re one . He a lso had no rec ollection of the pe titioner’s having i n fo rm ed him that he had suf ficient funds to pa

y for a n interpre ter, but said that he ha d no do ub t th e pe tit ion e r m ig ht have do ne so

. Al tho ug h it wa s o bv iou s to him

that th e pe tit ion e r’ s f

a mil y did not have m u ch m o n ey an d , as he r eca lled, had to borrow funds to pay

for his def

ense, the petitioner alwa

y s ag ree d when he told him he neede d additional funds for a n aspec t of the def

ense. The fa ct th at t h e fu n d s wer e usually slow in coming, how ever , reinfor ced his opinion that the pe tit ion e r d id n ot have a lot of mon e y a t his dis po sa l. Tr ia l c ouns e l te sti fi e d that th e pe tit ion e r “ did well enoug h on direc t e x amination” but pr esente d himself poorly on cross-e x amination, which made counsel re g ret his dec ision not t o hire a n interpre ter.

Trial counse l vag uely

rec alled havinga conve rsation with the prosec utor about a possible plea barg ain. He sa id that the S tate wanted “some signific ant prison time” and that the pe titioner was not interested w hen he c ommunicated the of fe r t o h i m. He stated that he sent his investigator to the vi c t i m s ’ h o m e i nana t t e mp tt o i n t e r v i e w t h e m , b u tt h e i r

m o t h e r w o u l d n o ta l l o w i t

. H e a lso considere d hiring an expert to revie w the for ensic interv i ew s o f t he victims but ulti mately decide d that it wa s n ot w or

th t he e xpe nd iture of

fu nd s b e c a us e he tho ug ht t

hat in mos t c a se s th e jur

y is a ble-4-

to determine f

or itself “w hether q u es t ions are ina ppropriate , leading , those ty pes of thing s.” Tria l counsel a cknowledg ed that he introduc ed the tape of S.L .’s fore nsic intervie w as a n exhibi t at trial and did not object whe n the State later moved to publish it to the jury . He e x plained that he w anted the jury to see S.L .’s demea

nor at the c onclusion of the intervie w, which, in his opinion, was at odds wi th t he tr a umatic e ve nts sh e ha d ju st r e c ounte d:

Wel l, I re me mbe r be ing ve ry imp re sse d -- I [wa nt to] say “ imp re sse d, no t in

a po sit ive wa

y ” -- that, at the ve ry

e nd of the ta pe , a ft e r [S. L .] ha d to ld a

bo ut a ll the se traumatic thing s, her attitude to me seemed ve ry cava lier, see med ver

y casua l.
She g ets on her c ell p h o n e, is chitchatting with a g irlfriend, or something of that nature

. And I wanted the J ury to see that, beca use i n

. . . my

opinion I thought the J ury mig h t a g r e e w it

h me , th a t, if

s h e - - if a ll th e s e th in g s h a d

r e a ll y h a p p e n e d and the y we re so me thi ngtha

t sh ou ld’ ve be e n ve ry

tr a umatic , th a t ju st h e r d e me ano r d id not fit with having to just rec ount something like that.
So, Ikn e w that I

wa s g oin g to - - a

t on e po int I wa s g oin g to sh ow that pa rt to the Jury . I

kn e w that, i f I

did that, t hat in all lik e lih oo d th e State wo uld be a ble to show the entire tape, to show the i nterview in its entirety ; and . . . Iwas not [goingto] be able to just select the portions out of it that Iwanted.

S o , I m e an , I w a s

. . . a l w ays c o n f l i c t e d a b o u tt h a t ; an d

I t h i n k t h a t ’ s w h y, when the J udg e asked me, I said, “Well, I don’t know,” ‘ cause Iwas just still trying to decide w hether

that was the be st thing to do.

B ut u lti ma te ly

Ikn e w that I

wa s g oin g to pla

y that pa rt ; and Ikn e w u lti ma te ly it was g oing to c ome in, if Idid that. And that’s how we g ot to where we a re.

Trial counse l testified that he did not revie w the most rec ent ca se law on le sser-inc luded of fe ns e s o f r a

pe of a c hil d an d w a s, the re fo re , una wa re that c hil d a

bu se wa s a

le sse r- inc lud e d o ff

e ns e in the case . He sa id that he made a t actica l decision, albeit perha ps a poor one, not to object to t he hear say testimony of t he various State witnesses because he was attempting to impeac h S.L .’s trial testimony with the statements she ha d made to those witnesse s.

On cr oss-examination, trial counsel ac knowledg ed that his attempt to show inconsistenc ies be tw e e n S. L .’ s tr ia l te sti mony and he r p ri or state me nts a

bo ut t he a bu se wa s pa

rt of his ov e ra ll d e fe ns e str a te g y , w hic h f

oc us e d o n d isc re dit ingthe vic tim . He a lso a g re e d tha t Dr. Sang e r’ s tes tim on y wo uld h a v e b e e na d m i s s i b l e u n d e r t h e m e d i c a l d i a g n o s i s o r

t r e a t m e n te x c e p t i o nt o t h e r u l e a g a i n s th e ar s ay. He said that h e r e g r e tt e d h is d e c is io nto in tr o d

u c e th e ta p e o f S. L

. ’ s f o r e n s ic in te r

v ie w , w h ic h he char acte rized as a “ rea lly bad ca ll,” but said that it was part of his trial strategy at the time. Trial

c ouns e l te sti fi e d th a t th e pe tit ion e r c omm un ic a te d w ithhim du ri ng tria l a bo ut v ari ou s w itn e sse s’ testimony and, at one point when the vic tims’ mother was testifying, inf ormed him that the interpr eter ha d n ot re nd e re d a cor

re c t tr ans la tio n. He a c kn ow le dg e d th a t c hil d a bu se a s a le sse r- inc lud e d o ff

e ns e-5-

wo uld have app li ed to on ly

on e c ount o f t

he ind ic tme nt, ba se d o n a n in c ide nt i n w hic h th e vic tim testified that pene tration had r es u l t ed i n bleeding . Trial counse l denied that he dissuade d the petitioner fr om acc epting a plea or g uara nteed that he would win the case, t estifying that he told the petitioner that he f

elt that they

had a “ dece nt shot but cer tainly no g uara

ntees, a nd that [t he petitioner] had a lot of exposure.” He said that the petitioner was “ada mant from the be g inning that he wasn’t g oing to e nter a

plea.”

Th e pe tit ion e r, us ing

a mix tu re of

En gli sh andKor ean an d s om eti mes sp eaki ng si multa ne ou sly in E ng lis h w iththe int e rp re te r pr ov ide d for his a ssi sta nc e a t th e he ari ng , te sti fi e d th a t he ha d b e e n in the United States for

about ten y ear s. He said he spoke Eng lish and Korea n for the f irst seven or eig ht y ear s and in the last two y ear s spoke only Eng lish. He later t es t ified, howe ver, that he spoke exclusively

Kore an at home a

nd in the sermons he de livered a t his church. H e said he had taug ht him se lf to sp e a k En g lis h thro ug h b oo ks , b ut i t w a s a ve ry dif fi c ult langua g e and

he e xpre sse d h ims e lf much better

in Korea n, particula

rly in stressful place s such as the c ourtroom. For that rea son, he reque sted that trial counse l provide an interpre ter at trial, telling him that he would pa y for one himself. Asked whether he would have had funds for an interpre ter at that time, th e p et i tioner testified that he infor

med trial counse l of five diff ere nt individuals who had offe red to translate for him wi tho ut p ay

and re qu e ste d th a t he c ho os e on e of tho se fi ve to a c t a s h is i nte rp re te r at tr ia l.
The pe titioner testified that he g ave c ounsel a c opy of his renta l c ontrac t show ing that he had

mov e d f ro m N a sh vil le to h is Alab ama apartme nt i n F e br ua ry 20 01 wh ic h, a c c or din g to h is p os tc on vic tio n c ouns e l, w ou ld h a ve pr ov ide d a n a lib i f or c ount s e ve n o f the indi c tme nt. Th e po stconviction cour

t noted, howeve r, that the pe titioner had testified to the same information at trial.
The pe titioner testified that trial counse l told him not to wor ry about the ca se and r eassur ed him that he would be g oing home afte r trial. He sa id that trial counsel did not tell him any thing a bout the State’s plea

offe r until it was too late, g iving him no chanc e to consider whether he wa nted to take it. On cross-e x amination , he ac knowledg ed that he ha d handwr itten his seventy -six -pag e pr o s e p et i t i o n fo r post -convic tion relief in Eng lish but said that he had re ceive d assistance from an Am e ri c an w ho tol d h im howto w ri te it. He a dmi tte d th a t he ha d r e a d th e tr ia l tr ans c ri pt i n E ng lis h befor e pre paringthe petition. Finally , he testified that if trial counsel had le t him know prior to trial that hi s “ c olo r” wo uld

pr e ve nt h im f

ro m receivin g a

fa ir tr ia l, h e wo uld

have e nte re d a

no lo contende re ple a in the ca se.

On J anuar

y 23, 2007, the post-conviction cour t entere d a deta iled written orde r deny ing the petition. Among other

things, the c ourt ac cr ed ited the testimony of trial counse l over that of the petitioner with respe ct to whether trial counsel c ommunicated the plea offe r to the petitioner a

nd whether the petitioner re quested that c ounsel provide a n interpre ter at trial. The cour t f ound that trial

c ouns e l’ s d e c isi on s to int ro du c e the vic ti m’ s in te rv ie w t a pe , n ot t o p ur su e an a lib i de fe ns e , n ot t o object to hea

rsay testimony

of t he various State witnesses, and not to file a motion for seve ranc e of offe nses constituted leg itimate trial tactics and strateg y

. The court also found that the pe titioner failed to show that counsel was defic ient for failing to reque st a jury instruction on child abuse a s a lesser

inc lud e d o ff

e ns e be c a us e the e vid e nc e did

no t su pp or t su c h a c ha rg e . T he c ourt

fu rt he r f ound that,-6-

even if counsel wa s deficie nt for not re questing the cha rg e, the pe titioner failed to show that he suffe red a ny prejudice as a result because he was convicted of the i ndicted offense to the ex clusion of the immediately

lesser- included offenses with which the jury was c harg ed. Ac cording ly , the cour t
c on c lud e d th a t th e pe tit ion e r f a ile d to me e t hi s b ur de n o f dem on str a tin g he wa s e nti tle d to po stconviction re lief on the ba sis of any of his alleg ations of ineff ective a ssistance of c ounsel.

AN AL YSI S

I. P ost-Conviction Standard of Review

T he post-convic tion petitioner bear s the burden of proving his alleg ations by clea r and

c on vin c ing e vid e nc e

. Se e Te nn . Co de Ann. § 4 0- 30 -1 10 (f ) ( 20 06 ). Whe n a

n e vid e nti ary

he ari ngis held in the post-conviction setting , the finding s of fa ct made by the cour t ar e conclusive on a ppeal unless the evidenc e preponde rate s ag ainst them. See Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1 9 9 6 ). W h er e ap p el l at e r ev i ew i n v o l v es p u re l y fa ct u al i s s u es , t h e ap p el l at e c o u rt s h o u l d n o tre we i gh

or re evaluate the evide nce. See Henley v. State, 9 60 S.W .2d 572, 578 (Tenn. 1997) . Howeve r,
re vie w of a tr ia l court ’s a

pp lic a tio n o f t

he law t o th e fa c ts o f t

he c a se is de novo , with no presumption of cor rec t n es s

. S ee Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineff ective assistance of counse l, w hich prese nts mix ed questions of fa ct and law , is reviewe d de novo , with a presumption of cor

rec tness g iven only to the post-conviction court’s finding s of fac t. See F ields v. State, 40 S.W .3d 450, 458 (Tenn. 2001) ; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

II. Ine ffec ti ve As sis ta nc e of C ouns e l

To establish a c laim of ineff ective a ssistance of c ounsel, the petitioner has the burden to show both that trial counsel’s pe rfor mance was de ficient a

nd that counsel ’s deficient perf ormanc e pr e jud ic e d the ou tc ome of the pr oc e e din g . Stri c kla nd v. Was hin g ton , 4 66 U. S. 6 68 , 6 87 , 1 04 S. Ct

. 2052, 2064 (1984); see State v. Taylor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 1997) (noting that

same sta nd ard fo r d e te rm ini ngine ff

e c tiv e a ssi sta

nc e of c ouns e l th a t is a

pp lie d in fe de ra l c a se s a lso

a pp lie s in Te nn e sse e ). Th e Str ic kla nd sta nd ard is a tw o- pr on g te st:

Firs t, th e de fe nd ant m

us t sh owthat c ouns e l’ s p e rf or manc e wa s d e fi c ie nt. Th is require s showing that counsel made err ors so serious that counse l was not functioning as the “ counsel” g uara

nteed the de fenda

nt by the Six th Amendment. Second, the de fe nd ant m

us t sh owthat th e de fi c ie nt p e rf or mance pr e

jud ic e d th e de fe ns e . T his require s showing that counsel’s e rror s were so serious as to depr ive the def endant of a fa ir trial, a tria l whose re sult is reliable.
466 U.S. at 687, 104 S. Ct . at 2064.

The de ficient pe rfor

mance prong of the test is satisfied by sh o wi n g that “counse l’s acts or omissions wer e so serious as to fall below a n objective standa

rd of r easona

bleness under

preva iling pr of e ssi on a l no rm s. ” Go a d v. State , 93 8 S.W. 2d 36 3, 36 9 (T e nn

. 19 96 ) (c iti ng Str ic kla nd , 4 66 U. S.-7-

at 688, 104 S. Ct. at 2065; B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)). The prejudice prong
o f t h e t e s t i s s a t i s f

i e d b y s h o w i n g a

r e a s o n a b l e p r o b a b i l i t y, i.e ., a “pr obability

sufficie nt to undermine confide nce in the outc ome,” that “ but for counse l’s unprofe ssional e rror s, the result of the pr ocee ding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

III. Claims of Ineff

ect ive Assistance

A. F ailure to Object

to Inadmissible Hearsay
The pe titioner first contends that trial c ou n s el was de ficient for failing to object to the inadm i s s i b l e h ea rs ay

t es t i m o n y

o f B re n d a G ri ff

i t h , Dr

. An gel a C arr, Dr

. M au re en S an ger, a nd Edwar d Stott s, thereby

prejudicingthe outcome of his case. H e complains that trial counsel not only failed to o bje c t to the te sti mony of the se wi tne sse s b ut a lso so lic ite d s ome of the te sti mony

duri nghis c ro ssexamination.

Th e po st -con vic tio n c ourt ma de the fo llo wi ngfi nd ing s o f f a c t and c on c lus ion s o f l aw w ith

re sp e c t to thi s c la im:
[The petitioner] specifically alleg es the testimony of B renda Griff ith, Dr. Ang ela Car

r, Dr. Maur een Sang er, a

nd Ed wa rd S totts shoul d not have be en admitted under the “fr esh complaint” e x ception to the hea rsay rule. Tr i al co u nsel testified he did not object to the admi s s i o n of this evidence beca use he w as attempting to discredit or impeach S. L .’ s c re dib ili ty and wa nte d th e Jury

to h e ar t he inc on sis te nt p or

tio ns to better a naly ze the issue. He a cknowled ged i t could have been a mistake, but it was a strate g ic dec ision.

Th e Court a c c re dit s the te sti mony of tr ia l couns e l as to his de c isi on s at tri a l to use t his information t o impeach the victim. Fur ther, the Court finds the testimony of Dr. Sang er w ould have be en admissible under t h e medical diag nosis and treatment exception t o th e h e ar s ay

r u le

. T e n n

. R. E v id

. 8 0 3 ( 4 )

. A d d it io n a ll y , th e te s ti mo ny from Ed Stotts only

corr oborate d that alre ady g iven by Dr. Sang er. F urthermor e, as el ab o rate d on above, the Court instructed the jury as to the use of

impeachme nt te sti mony . T he Pe tit ion e r c ann ot se c on d g ue ss the ta c tic a l de c isi on s of tr ia l c ouns e l, the re fo re the Court

do e s n ot f

ind fa ult fo r t his c ho ic e . T he pe tit ion e r h a s f a ile d to

car ry his burden by

clea r and c onvincing evidenc e i n ac co rdance with Strickland , su pra and the iss ue is w ith ou t me ri t.

The re cord f

ully supports the finding s and conc lusions of the post-convi ct i o n co u rt . Trial

c ouns e l e xpla ine d a t the e vid e nti ary he ari ng that his de fe ns e str a te g y c on sis te d of tr y ingto d isc re dit the victims and to show that they had a motive f

or lying. T o acco m p l i s h that g oal, he made the strateg ic dec ision not t o object to the hearsay testimony with respe ct t o S.L .’s prior state ments, but instead to attempt to highlig ht the discrepa ncies be tween those prior stateme nt s and her trial testimony . As the post-convic tion court observe d, a re viewing court must i n d u lge a strong-8-

presumption that the conduc t of counsel f alls within the r ang e of re asonable profe ssional assistance, see Strickland, 466 U .S. at 690, 104 S. C t. at 2066, and may n o t s ec o n d -guess the ta ctical a nd str a te g ic c ho ic e s ma de by tr ia l c ouns e l un le ss t

ho se c ho ic e s w e re un inf

or me d b e c a us e of ina de qu a te p re p ar at i o n

. S ee He l l ar d

v

. S t at e, 6 2 9 S

. W

. 2 d

4 , 9 (T en n

. 1 9 8 2 ). M o re o v er , t h e fa ct t h at a s t ra t egy or tac tic failed or

hurt the def

ense doe s not alone support the cl aim of ineff ective a ssistance of counsel. See Thompson v. State, 958 S.W .2d 156 , 1 6 5 (Tenn. Crim. App. 1997) . We conclude, the re fo re , th a t th e pe tit ion e r i s n ot e nti tle d to re lie f o n th e ba sis of thi s c la im.

B. F ail ur e to P r e se nt Al ibi D e fens e or Re que stIns tr uc ti on o n Al ibi
The pe titioner next co ntends that trial counse l was def icient for f

ailing to pr esent a

n alibi defe nse or reque st that the trial court instruct the jury on alibi. He acknow ledg es that proof that he

mov e d to Ala

bama to atte nd

B ibl e c oll e g e in F e br

ua ry 20 01 wo uld

no t ha ve pr ov ide d a

n a lib i f or a ll the char g es but asser

ts that it would have bee n rele vant to count four, f or which he was c onvicted of rape of a child and rec eived a twenty -y ear sentenc e to be serve d consec utively to his sentences f

or two other c ounts of the indictment. The S tate arg ues t hat t rial counsel adequa tely explained his reasoning for not pu rs uing the alibi defe nse and that an instruction on alibi was not war rante d by the proof prese nted at trial. We ag ree with the State.

Th e po st- c on vic tio n c ourt ma de the fo llo wi ngfi nd ing s and c on c lus ion s with re sp e c t to thi s
c la im:

As to the second issue, the Petitioner alleg es his Tr ial Counsel was ineff ective in fa ili ng to ch a lle ng e the tim e fr a me of the e vid e nc e and pr op e rl y pr e se nt his a lib i. The Court ac cre dits the testimony of trial counsel that he discussed the issues with the Petitioner and proc eede d on the issue during the Petitioner’s dire ct examination. The Petitioner cannot in hindsight se cond g uess the tactical decisions of trial counse l. The Court notes the time fra

me t he P etitioner alleg es did not apply to all of the cha

rg es and the jury was a ble to hear

his testimony

he li v ed i n an o t her state for a portion of the indictment time period and he ard pr oof about his re nted apa rtment, there fore th e Co urt fi nd s that the pe tit ion e r ha s fa ile d to e sta bli sh by c le ar a nd c on vin c ingpr oo f t

he me ri ts of this issue.

As to his third issue, Petit ioner a lleg es trial counse l was ineff ective f or fa iling to r equest a jury instruction a s to his alibi de fense . The Petitioner did not prese nt an alibi defe nse at trial a

nd neither did he o ff

er al i b i wi tnesses nor a

ny other proof differ ent than that pre sented at trial during the hea ring on this pe tition. Therefor e, the Petitioner has fa iled to prove this alleg ation.

The re cord a g ain supports the finding s and conclusions of the post-c onviction court. The tr ial court must instruct the jury on the def

ense of alibi when it is “fair ly

raised ” b y t h e evidence, se e Mann ingv. State , 5 00 S.W. 2d 91 3, 91 5 (T e nn

. 19 73 ), re g ard le ss o f w he the r t he de fe nd ant r e qu e sts the ins tr uc tio n. Se e Poe v. State , 3 70 S.W. 2d 48 8, 49 1 ( Te nn . 1 96 3) . Pr oo f o f a n a lib i su ff

ic ie nt t o-9-

re qu ir e an in str

uc tio n e xists wh e re (1 ) t

he de fe nd ant’ s c la im that he wa s not at the sc e ne of the c ri me is c or ro bo rate d b y

oth e r c re dib le wi tne sse s; ( 2) the vic tim ha s b e e n una ble to i de nti fy

the de fe nd ant; or (3) the proof a g ainst the defe ndant is w holly circ umstantial. Manning , 500 S.W .2d at 916. The fa ilure to c ha

rg e the jur

y wi th a lib i w he n it

ha s b e e n f

a ir ly ra ise d by c re dib le e vid e nc e is r e ve rs ibl e
err or. Moffitt v. State, 29 S.W.3d 51, 57 (Tenn. Crim. App. 1999).

Trial counse l expl ained that, due to the long time f rame cover ed in the in d i ct m ent, he considere d but rejec ted pursuing an alibi def ense. H e also re called that there w as ev i d en ce that at least one of

the offe nses occurre d when the petitioner re turned to the victims’ home for a visit. As the State points out, the victim’s testim o n y wi t h respe ct to count four of the indictment, that the defe ndant ra

ped her on a night when she did not have to attend sc hool the next m orning , indicates that the ra pe occurre d on a Friday or S aturda y night. Given testi mony by the vi ctims and their mother that the petitioner returne d for visits following his move to Alabama, the fac t that the petitioner re nted an apar tment in Alabama in F ebrua ry 2001 would not be sufficie nt to establish an alibi or justify an alibi instruction to the jury

. We conclude , there fore , that the petit ioner is not entitled to post-conviction relief on the basis of this claim.

C. F ailure to Re tain an In ter prete r The pe titioner next contends that trial c ounsel was inef fec tive for failing to retain a n interpre ter. Asse rting that he informe d counsel that he needed, wanted, and was a ble to pay for the service s of an inter

prete r, the petitioner argues that trial counse l was def icient for f

ailing to hire an interpre ter to assist his trial testimony and that such defic iency prejudice d the outcome of his ca se. The pe titioner contends that trial c ounsel “misrepr esente d the fa cts” by informing the trial cour

t that the petitioner wa s able to spea k “ver y g ood Eng lish,” as evidenc ed by the numerous citations to the petitioner’s c onfusing trial testimony that counsel include d in his appellate brie f whe n raising the trial

c ourt ’s de nia l of

his mot ion

fo r a n in te rp re te r a s a

n is su e on dir e c t a pp e a l.

Trial counsel’s testimony , howeve r, which wa s specific ally acc redited by

the post-conviction

c ourt , e sta bli sh e d th a t th e pe tit ion e r n e ith e r a sk e d n or de mand e d tha t he pr ov ide an inte rp re te r at tr ia l. I n addition, the petitioner’s own evidentiar y hear ing testimony is somewhat equivocal on whether he

ever informed trial counsel that he would pay for a n interpre ter. The petitioner first testified that he told trial counsel that he would pa y for a n interpre ter but then stated he tol d trial counsel that he knew five individuals who wer e willing to interpre t f or fr ee a nd counsel should chose an interpr eter from that g roup. We also note that the pe titioner, provided with the ser vices of an interpre ter at the evidentiar y hear ing, c hose to deliver muc h of his testimony in Eng lish. F urthermor e, the pe titioner’s command of the Eng lish langua g e appe are d at that hea ring to be at lea st as g ood, if not better, than that of his inter

prete r. The petitioner, for example, c orre cted the interpre ter with the corr ect wor ds wh e n th e int e rp re te r b e g an to re fe r t o the p ublic de fe nd e r a s th e “ pu bli c de pe nd e r, ” or

“ pu bli c retorne y ,” and e x hibited a fairly g ood g rasp of

Eng lish gra

mmar and w ord orde r. The pe titioner has not, theref

ore, me t his burden of showingthat trial counsel wa s defic ient for f ailing to hire an interpre ter or that he was pr ejudiced a s a re sult of that alleg ed defic iency

. The petitioner is not e ntitled to post-conviction relief

on the basis of this claim.-10- D. F ail ur e to Co m m unic at e P le a Ba r ga in
The pe titioner next contends that trial c ounsel was de ficient for failing to communicate the State ’s ple a

ba rg a in o ff e r t o h im. He a sse rt s th a t tr ia l c ouns e l f a ile d to c omm

un ic a te the ple a

ba rg a in offe r until it was too late for him to acc ept it and had counse l made him awa re that he would not be able to re ceive a fa ir trial, he would ha ve ente red a

nolo contender e plea

to the char g es.

Th e po st- c on vic tio n c ourt ma de the fol lo wi ng fi nd ing s o f f a c t and c on c lus ion s o f l aw w ith

re sp e c t to thi s c la im:

I n h is s ixth i ssu e , th e Pe tit ion e r a lle g e s his c ouns e l fa ile d to dis c us s w ithhim offe rs re sulting fr om plea neg otiations. The Court does not find t h e Petitioner’s testimony to be cr edible but rathe r acc redits the testimony of his tria l counsel that the Pe tit ion e r wo uld no t hav e ple d to an o ff e r a nd mor e ov e r t

hat he wa s o nly

of fe re d to plea to the c harg es. The Petitioner a cknowledg ed that he would not have admitted g uilt at a plea he aring . Fur ther, the Petitioner’ s testimony is suspicious because he acknow ledg es “ple a barg aining ” with [ trial counsel], but also alleg ed he r ece ived no plea of fer . There fore , the Petitione r h as failed to prove the alleg ation by clea r and

c o n v in c in g e v id e n c e in

a c c o r d an c e w ith S trickland , su pra and the issue is without

me ri t.
We, a g a in, c on c lud e tha t th e re c or d sup po rts th e fi nd ing s and c on c lus ion s o f t

he po stconviction cour

t. Trial counse l testified that the petitioner wa s adama nt that he was not guilty

and

re je c te d th e on ly

ple a of fe re d b y the State , w hic h invo lve d s ub sta nti a l pri so n ti me. I n r e sp on se to questioning by

the post-conviction cour

t, the petitioner did not say that he would have been w illing to admit his guilt to the crimes. I nstead, he testified that he had since lear ned from his fellow inmates that hi s sk in c olo r p re ve nte d h im fr om r e c e ivi nga fa ir tr ia l and that, h a d tr ia l c ouns e l in fo rm e d h im of that fa ct, he would ha

ve chose n to enter a nolo contende re plea. The pe titioner has not, there fore , shown that trial counse l was def icient for f

ailin g t o communicate a

plea of fer to him or that he suffe red any prejudice as a result. As such, he is not entitled to post-conviction re lief on the ba sis of this claim.

E. F ail ur e to Re que stJur y I nst r uc ti ons on C hild A buse
The pe titioner next contends that trial c ounsel was inef fec ti v e fo r fa i ling to re quest a jury instruction on child abuse as a lesser-included offense of child rape

. Wit h respe ct t o this claim, the post-conviction cour

t found that the evide nce did not support an ins truction on child abuse and that trial counsel, ther efor e, wa s not de ficient for f ailing to r equest the c harg e. The court fur ther found that, even if counsel were deficie nt for failing to reque st the charg e, the pe titioner was unable to show prejudice , as the jury convicted him of t he indi cted of fense of child ra

pe to the exclusion of the lesser

included off

enses of attempted ra

pe of a child, ag g ravated se xu a l b a tte ry , attempted ag g ravated sexual battery , and assa

ult, which the jury

was instructe d to consider se quentially

.-11-

We ag ree th at, eve n if trial counse l was def icient for f

ailing to r equest the c harg e, the petitioner has not s h o wn t h at he was prejudice d as a r esult. Under State v. Williams, 977 S .W.2d 10 1, 10 5 ( Te nn . 1 99 8) , an y erro r in no t c ha rg ingthe jur

y on a le sse r- inc lud e d o ff

e ns e is h arm le ss when the jur

y convicts a de fenda

nt of the indicted offense to the exclusi on of the immediatelylesserincluded offe nses with w hich it wa s char g ed. Acc ording ly , the petitioner ha s not met his burden of showing that he is entitled to post-conviction relief on the basis of this claim.

F . F ail ur e to M ov e for Se ve r anc e of Offe nse s

L astly , the petitioner c ontends that trial counse l was ineff ective for failing to move to sever the offe nse i nvolving J .L

. from the offe nses involving he r older sister , S.L . The post-c onviction court found, howe ver, that trial counsel’s de cision not to pursue a seve ranc e of of fense s w as a sound t ac t i ca l d ec i s i o n , wh i ch wa s n o t t o b e se co n d -gu es s edb y t h e c o u rt

. T h e r ec o rds u

p p o rt s t h i s fi n d i n g. Acc ording ly , we conclude that the pe titioner is not entitl ed to post-conviction re lief on the ba sis of thi s c la im.

CO NC LU SION

We conclude that the petitioner has not me t his burden of showing that he re ceive d ineffe ctive assistance of counse l. Accor dingly , we a ffirm the de nial of his petition for post-conviction re lief.

___________________________________ AL AN E. GL ENN, JUDGE