# FILED January 14, 20

00 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1999 SESSION

ROGER CLAYTON DAVIS, * C.C.A. No. 03C01-9902-CR-00076 Appellant, * McMinn County v. * Honorable Step hen M. Bevil, Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

FOR THE APPELLANT : FOR THE APPELLEE : Julie A. Rice Paul G. Summers P. O. Box 426 Attorney General & Repor ter Knoxville, TN 37901-0426 (On Appeal) Ellen H. Pollack Assistant Attorney Gener al Thomas E. Kimball 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243-0493 1101⁄2 East Washington Avenue Athens, TN 37303 Jerry N. Estes District Attorney General William W. Reedy Assistant District A

ttorney General 130 Washington Avenue, N.E. P. O. Box 647 Athens, TN 37371-0647 District Attorney General

OPINION FILED: ____________________________

_________ AFFIRMED ALAN E. GLENN, JUDGE2 

### O P I N I O N

The petitioner, Roger Cl ay ton Davis, appeals as of ri ght from the McMinn County Criminal Court’ s dismi ssal of h is p etition for post-conviction relief wherein he cl aimed ineffe ctive assistance of counsel in his 1988 trial, which resulted in his convictio ns of fi ve counts of rape and one count of aggravated kidnapping. Based upon our review, we affirm the trial court’s dismi ssal of the petition.

PROCEDURAL BACKGROUND The petitioner is presently servi ng consecutive sentences totaling eighty-five years in the state penitentiary as a Range I standard offender. The offensesfor which he was convicted occur red in January 1987. Petitioner appealed his 1988 conv iction by the McMinn County jury, and this court affirmed the conviction but remanded for resentencing. See State v. Roger Clayton Davis , No. 170, 1989 WL 112748 (Tenn. Crim. App., Knoxv ille, Sept. 29, 1989), perm . app . denied (Tenn. 1990).
Followinghis resentencing, petitioner appealed the judgment of the trial court sentencing him to one hundred forty years. That sentence was modified by this court to
e ighty-five years as a Range I s tandard offender. See State v. Davis , 825 S. W.2d 10 9 (Tenn. Crim. App. 1991), perm . app . denied (Tenn. 1992). Petitione r fil ed his first postconviction reliefpetition on January 4, 1993. This court sustained the trial court ’s dismissal of his petition without a hearing. See Roger Clayton Dav is v. State , No. 03C01-9308-CR00265, 1993 WL 523654 (Tenn. Crim. App., Knoxvill e, Dec. 16, 1993), perm . app . denied (Tenn. 1994). Petitioner filed a second petition for post-conv iction relief on June 20, 1994, which was dismissed by the trial court without a hearing. On appeal to this court, we held “that the petitio n alleges a colorable claim for relief and that the trial court improperly dismissed the petition without first appointing an attorney, allowing appro pri ate amendments, and then determining if an ev identiary hearing w

as warr anted.” Roger Clayton Davis v. State , N o. 03 C0 1- 94 09 -C R- 00 32 3, 19 95WL 509422, at *1 (Tenn. Crim. App., Knoxville, Aug . 29, 1995).3 Followinga rema nd to t he trial court of the petition er’s second petition for postconviction relief, a hearing was held on January 5, 1999. The secon d petition for postconviction relief was dismissed by order of the post-conviction court on January 22, 1999. Petition er timely a ppealed to this co urt, and it is this a ppeal whic h we now revie w.

FACTS The opinion ofthis court following the petitioner’s direct appeal of his conviction set out the facts of the case:

On a cold January evening the victi m was walking al ong the streets of Kno xville from her place of residence at a family crisis center approximately one mile to her former apartment, when she accepted the appel lant’s offer to drive her t o the apartment. The victim protested immediately when Appellant, whom s he did not know, did not dr ive in the direction of he r destination. He drove to a trai ler at a construction site in McMinn County, where he forc ed he r to disrobe. Then, he drov e her, naked and bound, to a convenience store, where she escaped by crawli ng through the car w indow and obtaining refuge inside the store while the appellant was buying beer. En route to the trailer, at the tr ailer and in the convenience store parking area, the appellant physic ally forced the victi m to perform five separate acts of fellati o. Davis , 1989 WL 112748, at *1. On November 8, 1987, whi le the petitioner was being held in the Loudon County Jail prior to his trial on the kidnapping and rape charges, he escaped
on his black Yamaha motorcy cle and ran in to a police car that was stopped to block his escape. He was take n by helicopter to Fort Sanders Regional Medic al Center for evaluation and treatmen t. He subsequ ently cla imed that he suffered from am nesia as a result of the accident. The Fort Sanders Regional Medical Cent er report stated: “The patient had an obviou s fracture of the left hip and of the rig ht wrist and of the left hand. Multiple la cerations about the left ear w ith some blood in the ear as w ell as some oth e r lacerations. The patient was seen by Dr. Finelli , neurosurgeon, andreceived a thorou gh neurological work

up.”4 ANAL YSIS Petitioner

p r esents the following all egations to support his pet ition for postconviction relief based on the claim of ineffe ctive assistance of counsel:

1. Failure of

counsel totake any remedial action based on petitioner’s medical cond ition; 2. Failure of counsel to reque st a change of venue; 3. Fa ilure of counsel to determine which of petitioner’s p rior convictions might be used to impeach him i n order that he might make an informed decis ion whether to exercise his right to testify at trial; 4. Failure of

counsel to call witnesses in his beha lf; and 5. Failure of counsel to investigat e t he victim’ s background for the purpose of substanti a ting petitioner’s claimed defense that th e v ictim was a prostitute who solici

ted him.

In order to determine the competence of counsel, Tennes see courts have applied standards developed in federal case law. See State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997), perm . app . denied (Tenn. 1998) (noting that the same standard fordetermining ineffective assistance of counsel that is applied in federal cases also ap plies in Tennessee). The United States Supreme Court articulated the standard i n Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), which is widely accepte d as the ap propriat e standa rd for all claims of a convi cted pet itioner that
c ounsel’s assistance was defective. The standard is firmly grounded in the belie f tha t counsel plays a role that is “critical to the abil ity of the adversarial sy

stem to produce just results.” Id . at 685, 104 S.Ct. at 2063. The Strickland standard is a two-pr ong test: First, the defendant must show that counsel’s perfo rmance was deficient. This requires show ing that counsel made errors so serious that cou nsel was not fun ctioning as the “ counsel” guaranteed the defendant by the Sixth Amendment. Second, the defend ant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious a s to depri ve the defendant of a fair trial, a trial who

se result is reliabl e. Id

. at 687, 104 S.Ct. at 2064. The Strickland court further explained th e meaning o f “deficie nt perfo rmance” i n the fir st prong of the test i n the fo llowing way:

I n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance5 was reasonable considering all the circumstance s. . . . No particular

set of detailed rules for counsel’s c onduct can sati sfacto rily

take account of the variety of circumstances faced by defense counsel or the rang e of legitimatedecisions regarding how best

to represent a criminal d efendant. Id

. at 688-89, 104 S.Ct. at 2065. Petitioner mus t, therefore, establish that “ the advice given
or the service rendered w as not within the rang e of competence demanded of at to rneys in criminal cases[.]” Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App.), perm . app . denied (Tenn. 1991).

As for the prejudice prong of the test, the Strickland court stated: “The defendant must show that there is a reasonable pr obability that, but for couns el’s unprofessional errors, the result of the proceeding would have been different. A r easonable probability is a probability

sufficient to undermine confiden ce in the outcome.” Strickland , 466 U.S. at 694, 104 S.Ct. at 2068; see also O verton v. Sta te , 874 S.W.2d 6, 11 (Tenn. 1994) (holding that petitioner failed to establish that “there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been dif ferent”).
Finally, the Strickland court stated what it deemed a critical point: Most important, in adjudicating a claim of actu al ineffectiveness of counsel, a court should keep i n mind that the principles

we have stated do not es tablish mechanical rules. Although those princip les sho uld guide the process of deci sion, the ultimat e focus of inquiry must be on the fundamental fairness of the proceeding w hose result is being ch allenged. Strickland , 466 U.S. at 696, 104 S.Ct. at 2069. Courts need not approach the Strickland test in a specific order or even “address b oth components of the inquiry if the defendant makes an insufficient showing on one.” Id . at 697, 104 S.Ct. at 2069.
By stat ute in Tennessee, the petitioner at a post-conviction rel ief hearing has the burden of proving the allegations of fact by clear and conv inc ing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). A petition based on ineffective as sistance of counsel is a single ground for rel ief, therefore all factual alleg ations must be presentedin one claim. See Tenn. Code Ann. § 40-30-206(d) (1997). “A bare allegation that a cons titutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further6

proceedings. Failure to state a factual basi s for the grounds alleged shall result in immediate dismissal of the petition.” Id .; see also Cone v. State , 927 S.W.2d 579, 5 81 (Tenn. Crim.App. 1995), perm . app . denied (Tenn. 1996) (holding petitioner’s claim that issues raised in a second petition were “novel” failed as “vague and c onclusory”).
Finally, we note that when post-conviction proc eedings have included a full evidentiary hearin g, the trial judge’s f indings of fact and conclusions of law ar e given the effect and weight of a jury v erdict, and this court is “bound by the trial judge’s findi ngs of fact unless we conclude that the evidence contained in the record preponde rates against the judg ment entered in the cause.” Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm . app . denied (Tenn. 1990).

A. Petitioner’s Mental Condition First, petitioner asserts that, while he was at the Tennes see State P rison in Nashville prior

to his trial, he was

treated for

attempted suicide and sever e depression; he
was given multiple medications on a daily basis; and no medications were provided for him during the time he was held in the McMinn County Jail at the time of his tr ial. He cl aims to have brought this situation to the attention of counsel, b ut counse l failed to request a continuance or request that he be provided with hi s medications.

The only testimony intr oduced at the hearing to show th at the petitioner lacked capacity to stand trial because of depres sion or other medicalproblems was the testimony of the petitioner’s mother and ex-wife. Petitioner

’s mother testified that during the trial her son “just wasn’t his self” and that “he didn’t act like he hardly recognized me. . . . He just stared, and I take it it’s from the concuss ion that he had, or the medication they had him
on or something. He was not my son.” The petitioner’ s ex-wife also testi fied that when she saw him prior to the tr

ial, “he wasn’t the s

ame.”

The petitioner’s appointed couns el, whose legalservice is the subject of this petition for post-conviction relief, testified to the following during the hearing on this mat ter:7 Q [by General Reedy]. Okay. Now, memory loss or failure to recall certain ev

ents that occurred someti me in the past is one condition we can befamiliar with, and I think everybody in the general population is familiar with people who make those claims, but as to what was played here by some of his family members that he was disoriented, that he was not aware of the events around him, not able toidentify persons, just “ out of it.” D id you ever observe any of that before, during or after M r . Davis’ accident? A. I never made that observation, General, but I did know this much: that this issue that was raise d here today woul d come back t o revisit at some future point, and so I took t h e precaution of filing a motio n for a mental evaluation because I knew I would some day be put in th e position of having to explain why there was no t mu ch of a defense to offer a jury based on this claim of amnesia. So I filed a motion for a mental e valua tion which resulted i n the evaluation which has been tendered I believe as Ex hibit Number One. The exhibit to which c

ounsel referred is an outpatient psychiatric eval uation completed by Dr. William M.Regan, a staff psychiatrist at the

Middle Tennessee Mental Health Institute, and Dr. Samuel N. Craddock, a licensed clinical ps ychologist. That repo r t, prepared following an evalua tion of the pe titioner on Jun e 17, 1988, inc ludes the foll owing:

Mr. Davis’ professed inabi lity to rec all ce rtain incidences appears selective. He contends he does notrecall prior seriou s ch arges, the event that led to his present charge or escaping from jail. However, intersp e rsed among these periods of forgetting, Mr. Davis is able to reca ll i nformation which places him in a favorable l ight. . . . Basedupon th e above observations and Mr. D av is’ c omments, he is considered competent to st and tri al. He does not appear to have a mental illness o r to lack the capacity to assist his attorney if he so chooses. He is felt c apable of following courtroom testimony and aidi ng in his own defense. We conclude that the petitioner has failed to show that counsel had any credible basis for seeking a continuance or taking any other correctiv e actio n based on the petitioner’s mental state. B. Change of Venue Second, the petitioner alleges that counsel’s failure to seek a change of

venue was an error of such magnitude as to constitute inef

fective assistance of counsel. The petitioner’s t rial cou nsel did attempt to determine w hether an impartial jury could be obtained i n McMinn County. Couns el filed a motion requesting that he be allowed to conduct individual voir

dire and attached various articles that

had appeared in local tabloids with respect to the pretrial publicity. The trial court held that its ruling would depen d upon8

the responses of the prospectiv e jurors. On voir dire, the trial court inquired of the panel: “Do any of you folks know anything about these alleged crimes? Have you heard any thing about it? Ha ve yo u read anything in the pape rs about it?” The only r esponse was the st atement by one prospective juror who stated, “I’ve read about it in the papers.” Upo n further questioning by

the trial court, the prospective juror stated that she could disregard the news report and base her decision “solely and alone upon the evidence” pres ented at trial. State v. Roger Clayton Davis , No. 170, 1989 WL 1127 48, at *1-2 (Tenn. Crim. App., Knoxville, Sept. 29, 1989). The trial cour t denied the motion for indivi du al voir dire, and there were no further questio ns of the jury concerning pretrial publicity . This court held, “There is no showing th at a s ignificant possibility existed that the prospecti ve jurors had been exposed to potentially prejudicial material, mandating individual voir dire.” Id

. at *2. Addition ally, the record includes a document dated July 21, 1988, signed by the petitioner, which states, “The jurors seated are acce ptable to m e.” Thus, it is apparent that both petitioner’s trial counsel and the tri al court were aware of and dealt appropriately w ith the pretrial publicity; and, at the ti me of the trial, the petitioner di d not object tothe jury. Based
on this, we conclude that the petitioner has failed to show that counsel had any credible basis for seeking a chang e of venue and therefore this allegation is without mer it.

C. Petitioner’s Prior Convictions Third, the petitioner alleges that counsel’s failure to determine which of petitioner’s prior convictions might be used to impeach him amounted to inef fect ive assistance of counsel in that the petitioner w as unable to make an informed decision concerni ng whether he should testify at trial . The ad missibili ty of evidence is a prel iminary question for the court. See Tenn. R. Evid. 104. Both the S tate and petitioner’s tria l counsel noted that a jury-out hearing was conducted by the trial judge concerning the admissibility of evidence of prior crimes. The petiti oner’s criminal recor d reflecte d conv ictions for receiving and concealing stolen property (1977); false imprisonment (Florida, 1980); and esca pe (1982). The record reflects that the 1980 F lorida false imprisonment conv icti on aro se from his abduction and sexual assault upon an eighteen-year-ol d woman.9 As for the p etitione r’s decisi on not to testify, petitioner’s trial c ounsel testified to the following: A. I explained to him the danger of taking the witness stand, and one of the things we had talk ed about was not o nly his prior conviction in Florida, but this claim of amnesia, and I told him that claiming amnesia w ould be a very danger

ous step to take on the witness stand becaus e it could result in the D A, which was y

ou, Gene ral, who woul d call w itnesse s to tes tify that he was not in fact suffering from amnesia – Q. In the person of the two

– A. Correct. Q. Psychiatrists

who offered that report. A. Tha t’s correct. That rememberi ng certain facts and not remember[ing] certain o thers woul d obvious ly c reate a bad impression in front of t he jury. So with specific reference to this testimony on his own behalf we discussed that in detail. And no t only this is sue of am nesia, bu t also af ter we conducted a jury out hearing, and Judge Mashburn hadruled certain convictions inadm iss ible and certain convic tions admissible, we made the decision not to t estify, but

it wasone that was advised and one w hich we had discussed. The court noted the following duri ng the evidentiary hearing on the petition for po st convic tion re lief: [I]t was indicated that

one of his convictions w ould have been let in, the receiving and con ce aling, the other convi ctions Judge Mashburn kept out, which I find it was very appropriately done, but still there woul d have been a convict ion, and with that and the amnesia issue, as I hav e talked about, and then the sudden recall of facts, it would have been very damaging to Mr. Davis’ credibility, and there was nothing further brought up by Mr. Davis of indicating any willingness to testify once that discussion was had. Petitioner

was granted a

404(b) hearing during

the trial of his case, in ac cordance with the Tennessee Rules of Evidence, and therefore was able to make an appropriately informed decision concerning his rig ht to testify. Later , as the trial progressed, he “changed his mind” and decided that he wanted to testify in his own behalf. However, he stated during the post-conviction hearing that he did not inf orm trial counsel that he had changed his mind and wanted to testify. We conclude that this allegation is w ithout merit.

D. Failure to Call Witnesses Fourth, the petitioner alleges that counsel failed t o call witnes ses in h is behalf,1 OurSu p reme Court has adopted the Co de of Professional Responsib ility to “assist and guide lawyers

in their re lationshi ps with cl ients and o thers .” Zagorski v. S

tate , 983 S.W.2d 654, 658 (Tenn. 1998). Additionally, in Zagorski v. S tate , our Supreme Court stated: Generally, the client

has exclu sive autho rity to make decisions

about his or her case, which

are binding upon the l awyer if made within the fr amework

of th e law. . . .Counsel’ s role in a criminal c

ase is to assistthe defendan

t in making a defense and to represent the defendant befo re the court. Id . (citations

omitted). 10 specifi cally, counsel failed to c all Joseph Corley. C orley testified at the post -conviction hearing that he and the petitioner w ere co- workers. Th e trailer at the construc tion site where the two men worked was the one in McMinn County w here the petitioner

took the victim. A sawed-off shotgun was found under a mattress in th e trailer by police. Mr. Corley, an ex-husband of the petitioner’s mother, could have established in his testi mony that the petitioner, and any number of other individuals w

ho worked at the construc tion site, regularly enter ed the tr ailer and knew of the exi stence of the shotgun. The petitioner allegesthat this tes timony woul d have been helpful to him. The post-conviction court found that “the testimony would have been more damaging to th e defendant than helpful because the testimony would hav e shown that Mr. Cor

ley as wel l as the defendant, and anyone else that would have been [in] the trailer, would have known that the shotgun was in the trailer. This testi mony, t he Court fi nds, would not have bols tered the claim of
con s ensual sexual conduct.” We agree with this statement. Additionall y, we note that, according to the rules of professional responsibility in effect in Tennessee at the time of this trial, a lawyer could “[w]here permissible, exercise h is profe ssional ju dgment t o waive or fail to assert a right or position of his client.” Tenn. Sup. Ct. R. 8, DR 7-101(B)(1). 1

In this case, defense counsel has been a licensed attorney sinc

e 1975, practicing both as an assistant prosecutor for a number o f years and later in pr

ivate practice. As for not calling the petitioner ’s ex-stepfather to

testify, that was a tac

tical decision made by

a clearlyexperienced attorney. Our supreme court has held that a rev iewing court defers to counsel’s trial strategy or tactical choices if they are informed and based upon adeq uate preparation. See Hellard v. State , 6 29S. W.2 d 4 , 9 (Ten n. 19 82 ). We conclude that this allegation is without merit.2 Petitioner testified at

the post-conviction he

aring that he and the vi ctim got in a fight at the trailer when the victim tried “to rol l” him and announced sh e was not goi ng to leave and woul d cry rape. He put

the naked victim and her clothes in his car and drove to the convenience store to get them both a beer to “calm dow n.” While he was in th e store, the v ictim came

“storming in the place saying that

I tried to ra

pe her.” The fol lowing is an exchan ge with the

prosecutor: Q. She came running into the place w

here you w

ere trying to buy her a beer t h at she said she wante d, and she was naked and she was screami ng that you h ad raped he r. A. Yeah. Q. And wh at happened next? A. I turned

around and

walked out. 11 E. Failure to A

dequately Inv

estigate and to Present Defense Fifth, the petitioner

allegesthat counsel failed to adequately investigate the victim’s background in order to present evidence at trial that would support the petitioner’s claim of consensual, paid-for sexual conduct. Sp ecifically, the petiti oner alleges that counsel should have determined if the vic tim had a record of pr

ostit ution; should have called an unnamed Knoxville law enforcement officer to testify that M agnolia Avenue, the street where the petitioner

encountered the victim, w as a known area for prostitution; and should have verified the vi ctim’s claim that she w as living at a shelter.

The record shows that, w hile the petitioner testified as to the facts of the incident in detail at the post-conviction hearing, 2 prior to the trial on hi s charges, he had provi ded counsel with only a “general denial” with some indication that the victim was a prostitute. Counsel’s handwritten notes from an interview with the petitioner on Septemb er 9, 1987—prior

to his escape from jail, motorcycle accident, and claim of amn esia—w e re admitted into evidence at the p os t-conviction hearing . According to those notes,the petitioner

stated that

the victim told him she would like to ride naked and asked him to tie her up and said that she had done thi s with her boyfriend before.
The petitioner does not recognize the difficult position th at his trial counsel was in at the time oftrial. Although prior to the trial, he had told counsel in general terms of his version of the events, he was cla iming, by trial time, that he

was “unsure” of “what actually happened.” Thus, although the petitioner now claims that his defense was that the victim solicited him, he does not advance a theory as to how this defense could have been more12

effectively presented, since he elected not to testify, both because of claimed amnesia, as well as one of his prior convictions being used for impeachment pur poses. Trial counsel
was faced with a positive identification of the pet itio ner and a victim who refused to talk with him. Counsel did go to Knox ville to try to fin d a record on the victi m of any prior convictions

for offenses of prostitution. He found none. The post-conviction court stated: [I]t appears to the Court, based on whatI’ve heard, that he did the best job with what he had. He did attempt to in vestigate, he talked to thewitnesses there at the convenience store, he wentto Knoxville and tr ied to look up the record of this al leged victim to see whether or not she did hav e a r ecord of prostitution and t ri ed to do these things. . . . A s everyone knows a person is not entitled by the constitution or the law of the land to a perfect trial and not entitled to a lawyer that can work magic, but a lawye r that can do thebest job he can with the facts and the law, and he’s entitled to a fair trial a n d entitled to have every issue raised that can possibly, legally and ethi cally

be raised in hi s behalf. We agree with the post-conviction court in this regard and conclude that this allegation is without merit. CONCLUSION In all his challenges to the effectiveness of his counsel, the petitioner has failed to meet his burden of

demonstrating that

counsel’s performance was not within the range of competence demanded of attorneys in criminal cases. It is, therefore, un necessary forus to consider any possible prejudice to the petitioner.For these reasons, we hold tha t the petitioner’s ineffective as sistance of counsel claim is without merit. We affirm the13

dismiss al by th e trial

court o f the petition for

post-c onvict ion rel ief.

_____________________________________ ALAN E. GLENN, JUDGE

CONCUR:

__________________________________ DAVID G. HAYES, JUDG E

___________________________________ JOE H. WALKER, III, SPECIAL JUDGE