IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 25, 2005 Session

JAMES ALLEN BOWERS v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Bledsoe County

No. 56-2002 Thomas W. Graham, Judge

No. E2004-01734-CCA-R3-PC - Filed May 2, 2005

The petitioner, James Allen Bowers, appeals the post-conviction court's denial of his petition for

post-conviction relief. In this appeal, the petitioner alleges (1) that he was denied the effective

assistance of counsel at trial and on appeal; (2) that the state failed to disclose evidence favorable

to his defense in violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963); and (3) that

the post-conviction court erred by refusing to allow expert testimony on the issue of the performance

of his trial and appellate counsel. The judgment of the post-conviction court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR., and

NORMA MCGEE OGLE, JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, for the appellant, James Allen Bowers.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and

James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In February of 1997, the petitioner was convicted of one count of rape of a child and

sentenced to eighteen years' incarceration. This court affirmed on direct appeal. See State v.

Bowers, 77 S.W.3d 776 (Tenn. Crim. App. 2002). The facts, as summarized by this court, are as

follows:

A.S. testified that when the offense occurred, she was an eleven-year-old

sixth-grade student. At the time, her mother's friend, Sharon, was dating the

[petitioner]. A.S. testified that she once spent the night with the [petitioner], the

[petitioner]'s girlfriend and the [petitioner]'s three-year-old daughter by a previous

marriage. A.S. put the infant daughter to bed for the evening and began watching

television on the living room couch. She testified that the [petitioner] came into the
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living room, turned on the radio, and began slow-dancing with her. The [petitioner]

was wearing only a pair of shorts, and A.S. noticed that he had an erection as they

danced. The [petitioner] undressed A.S. and engaged in sexual intercourse with her

on a blanket on the floor.

Although A.S. initially told no one about the incident with the [petitioner],

she eventually told a school friend, who then told a teacher, who in turn told a

Tennessee Bureau of Investigation (T.B.I.) agent. The T.B.I. agent proposed that

A.S. telephone the [petitioner] and record their conversations, during which A.S.

would attempt to obtain an admission from the [petitioner] regarding his sexual

activity with A.S.

Three recordings of conversations between A.S. and the [petitioner] were

introduced as evidence at trial and played for the jury. The first recording occurred

in February 1995, and although no specific admission was made by the [petitioner]

during the conversation, the jury heard the [petitioner]'s tone of voice and concern

that "the law" could be listening. Two more taped conversations occurred in August

1995, during which the [petitioner] discussed explicit sexual matters with A.S. Both

of the conversations that were taped in August contained statements by the

[petitioner] that could reasonably be construed by a jury to be admissions that he had

engaged in sexual intercourse with A.S. at some prior time.

The next witness for the State was Jennifer Newby, the estranged wife of the

[petitioner]. The majority of Jennifer Newby's testimony pertained to two recorded

conversations that Jennifer Newby had with the victim, A.S. In the first of these

conversations, which occurred in March 1996, A.S. denied that the [petitioner] had

raped her. In the second conversation, which occurred in August 1996, A.S.

confirmed that she had had no "sexual contact" with the [petitioner]. Both

conversations were recorded near A.S.'s school, because of Jennifer Newby's concern

that any contact between Jennifer Newby and A.S. would be met with disapproval

by A.S.'s mother. The tape recordings of both of these conversations were admitted

into evidence, and the jury listened to them during the trial.

Jennifer Newby and A.S. both testified that the conversations recorded in

March and August of 1996 were staged and that A.S. did not tell the truth during

either of the two conversations. Jennifer Newby and A.S. testified that they

discussed what A.S. should say before the taping began, and A.S. testified that she

cooperated in these two taped conversations because she was afraid of the

[petitioner]. Jennifer Newby also testified that she assisted in these staged

tape-recorded conversations because she was afraid of the [petitioner].

***
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The final witness for the State was James Newby, Jennifer's father. Newby

testified that he had heard the [petitioner] admit to and brag about having sex with

A.S. He also stated that the [petitioner] claimed he would never be caught because

he was smarter than the law enforcement authorities.

Additional evidence was presented as part of the State's case in the form of

a stipulation that A.S. was examined by a doctor on February 17, 1995,

approximately three months after the offense. At the time of the examination, A.S.

was eleven years old. The doctor who examined A.S. determined that A.S.'s hymen

was not intact.

The [petitioner]'s friend, Greg Buckner, testified that he was present with the

[petitioner] when each of the three recorded conversations between the [petitioner]

and A.S. occurred. Buckner confirmed that the [petitioner] was abusing drugs and

would become hyperactive and vulgar when under the influence of "crank." Buckner

believed that the [petitioner] was clowning around and playing to a crowd of people

who were also present when he was having the three recorded conversations with the

victim. . . .

The [petitioner] testified that he had never engaged in sexual intercourse or

sexual relations with A.S. He testified that he did not meet A.S. until just before

Christmas 1994, after the time frame in which the alleged rape happened. According

to the [petitioner], he was high on "crank" during the tape-recorded conversations

with A.S. He testified that being under the influence of "crank" made him hyperactive

and more likely to use the type of vulgar language that is heard on the tape

recordings. He stated that other individuals were present during these conversations

listening to his end of the conversation, and he maintained that much of the time he

was simply putting on a show for these individuals. He also testified that he believed

that the conversations were in fact being recorded.

Id. at 779-781.

On September 11, 2002, the petitioner filed a petition for post-conviction relief, alleging that

he was denied the effective assistance of counsel at trial and on appeal, that the state engaged in

prosecutorial misconduct, and that the judgment was void because it listed the wrong county of

conviction.

At the evidentiary hearing, JerryRichards, a private investigator employed by the petitioner,

testified that he interviewed James Newby at the request of post-conviction counsel. According to

Richards, Newby provided the following statement in writing:

On an unrecalled date [the petitioner], in a round about way told me that he

had sexual intercourse with [the victim]. To the best of my recollection he said
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something to the effect, ["]I bet that was the biggest dick the bitch ever had.["] He

did not tell me directly that he did, in fact, have sex with her or provide any other

details. At the time this statement was made to me I was at his house, I seen him

shoot up that day and he was wired. I don't know if he was serious when he made the

statement. He was a bull shitter and a braggart. No one else was around when he

made the statement[.]

Jimmy Miller, the victim's uncle, testified that he had pled guilty to the aggravated sexual

battery of the victim in 1991. He denied raping the victim and contended that the victim's mother

attempted to extort $10,000 from him in exchange for dropping the charges. During crossexamination, Miller claimed that he did not have a good recollection of the events in 1991 because

he suffered a head injury in an automobile accident. He conceded that the only person he had

informed of the extortion attempt was his mother.

Attorney Michael Caputo, who was hired to represent the petitioner at trial, testified that he

had been provided a document during pretrial discovery that stated that the victim had bite marks

on her nipples and an enlarged introitus after being assaulted by Miller in 1991. Attorney Caputo

stated that this information did not alter his decision to enter into a stipulation that Dr. James Nelson

would testify that the victim's hymen was not intact when she was examined after the allegations

were made against the petitioner. He explained that although the 1991 examination indicated that

the victim had an enlarged introitus, it said nothing about the condition of the hymen and that a 1993

examination of the victim established that her genitalia was normal. It was his opinion that because

the 1993 examination was normal, the stipulation minimized the damage to the petitioner.

Attorney Caputo testified that if he had known that the victim had reported to a nurse at the

health department that she was thirteen when she first had sex, he might have used the information

at the hearing on the motion for new trial. He stated, however, that within the same document the

victim also reported that she had been sexually abused as a child.

During cross-examination, Attorney Caputo testified that he did not want to make the jury

aware of the details of Miller's conviction for aggravated sexual battery of the victim because he was

afraid that the information would make her more sympathetic. He recalled that when he attempted

to cross-examine the petitioner's wife generally about Miller's conviction, the trial court sustained

the state's objection to the testimony. Attorney Caputo remembered that the medical record of the

victim's 1991 examination indicated that the victim's "[i]ntroitus [was] large for [her] age suggesting

but not proving penetration."

Attorney Caputo explained that he did not attempt to impeach state witness James Newby

with his prior misdemeanor convictions because none of the convictions involved crimes of

dishonesty. He testified that he did question Newby about a felony theft charge that had been

dismissed by the state, suggesting that it had been done in exchange for his testimony against the

petitioner. It was his opinion that Newby had little credibility because of his demeanor at trial.

Attorney Caputo conceded that he did not question Newby about his alcoholism or drug addiction
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because it was his understanding that such questioning was not permitted by the rules of evidence.

He stated that he did not cross-examine the victim about possible inconsistent statements she had

given to rape counselors, explaining that he was unaware of such statements. According to Attorney

Caputo, he was able to establish that the victim had given inconsistent accounts of the incident to

a variety of people prior to trial. He stated that the victim admitted at trial that she had told several

lies and had even assisted the petitioner's wife in manufacturing evidence.

Attorney David Raybin testified that he was initially hired to represent the petitioner at the

hearing on the motion for a new trial. He stated that the proof of penetration was contested at the

petitioner's trial and that if he had known that Miller had been indicted for the aggravated rape of the

victim, he would have used that as a ground for new trial or appeal. It was his opinion that Attorney

Caputo should not have stipulated the condition of the victim's hymen: "If you concede one issue

like that you're conceding half the government's proof, and I wouldn't do that, knowing now what

I do." Attorney Raybin testified that if he had been made aware of the victim's statement to health

department officials that she did not have sex for the first time until she was thirteen, he "would have

used that as powerful evidence in my [h]and to have convinced the Court [the recantation letter] was,

in fact, real and the girl had truly recanted." It was his opinion that Miller's indictment for

aggravated rape, the letter allegedly written by the victim recanting her trial testimony, and the health

department record, together, likely would have resulted in the petitioner's being granted a new trial.

Attorney Raybin further testified that it was his opinion that the state's failure to disclose the health

department record amounted to a violation of Brady.

During cross-examination, AttorneyRaybin acknowledged that the audiotape recordings of

the petitioner's conversations with the victim corroborated her allegations. He also conceded that

Attorney Caputo had done "an excellent job" of impeaching the credibility of the victim. He

insisted, however, that proof of the prior allegation would have served to further impeach the victim

and to impeach the medical proof that the victim's hymen was not intact.

Mel Matthews, the court bailiff and a former deputy with the Bledsoe County Sheriff's

Department, was the investigating officer in the case involving Miller. He testified that the victim

never alleged that Miller penetrated her vagina and only asserted that Miller fondled her. Matthews

conceded during cross-examination that Miller was indicted for the aggravated rape of the victim.

At the conclusion of the hearing, the post-conviction court denied relief, concluding that the

petitioner had failed to establish that his trial counsel was ineffective or that the state committed

prosecutorial misconduct. The court determined that Attorney Caputo's decision to enter into a

stipulation regarding the medical proof was one of trial strategy. The post-conviction court also

concluded that Attorney Caputo was not ineffective for failing to further attack the credibility of

Newby. The courtruled that the state did not violate the requirements of Brady by failing to disclose

the health department record which contains the victim's statement that the age at which she first had

sex was thirteen. Specifically, the court found that the state did not have possession of this document

during trial because it was created after the trial. Further, the post-conviction court determined that

"one more inconsistent statement made by a child on an embarrassing subject to a third party could
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not have tilted this case in [the petitioner's] favor." Finally, the post-conviction court corrected the

clerical error in the judgment so that the amended judgment correctly reflects the county of

conviction.

I

The petitioner first asserts that he was denied the effective assistance of counsel at trial and

on appeal. When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must first establish that the services rendered or the advice given were below "the range

of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the

defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to

render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the

trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either

factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

Because a petitioner must establish both prongs of the test, a failure to prove

either deficiency or prejudice provides a sufficient basis to deny relief on the

ineffective assistance claim. Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an insufficient showing

of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of

hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but

unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911

S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,

however, applies only if the choices are made after adequate preparation for the case. Cooper v.

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

Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.

State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.

1999). When reviewing the application of law to the post-conviction court's factual findings, our

review is de novo, and the post-conviction court's conclusions of law are given no presumption of

correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19

S.W.3d 762, 766 (Tenn. 2000).

Under our statutory law, the petitioner bearsthe burden of proving the allegationsin his postconviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).

Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy

of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.

1998). On appeal, the findings of fact made by the post-conviction court are conclusive and will not

be disturbed unless the evidence contained in the record preponderates against them. Brooks v.
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State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that

the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.

App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony

are questions to be resolved by the post-conviction court. Bates v. State, 973 S.W.2d 615 (Tenn.

Crim. App. 1997).

The petitioner claims that his trial counsel was ineffective by failing to use a medical report

which, he contends, indicates that the victim had been previously raped. He contends that this

evidence could have been used to cast doubt upon the state's contention that he had caused the

opening of the victim's hymen.

Dr. James Nelson examined the victim after she made allegations of sexual abuse against

Jimmy Miller. His report provides that the victim suffered abrasions to her neck and bite marks to

her nipples, and states that the "[i]ntroitus is large for age, suggesting but not proving penetration."

A separate document within the victim's medical records indicates that the victim's genitalia was

"normal" during a medical examination conducted two years later. Two years after the second

examination, an examination conducted as a result of the victim's allegations against the petitioner

established that the victim's hymen was no longer intact. Attorney Caputo testified that he chose to

enter into a stipulation that the victim's hymen was not intact in an effort to minimize the effect of

the presentation of the medical testimony directly to the jury. It was his opinion that the medical

evidence of the 1991 examination might have caused the jury to be more sympathetic to the victim,

particularly because the 1991 medical record did not contain definitive proof of previous penetration.

The post-conviction court ruled that Attorney Caputo's decision qualified as sound trial strategy.

In our view, the evidence does not preponderate against the finding of the post-conviction

court. In Hellard v. State, our supreme court held that perfect representation is not required and that

trial counsel's performance should not be measured by hindsight:

"Hindsight can always be utilized by those not in the fray so as to cast doubt

on trial tactics a lawyer has used. Trial counsel's strategy will vary even among the

most skilled lawyers. When that judgment exercised turns out to be wrong or even

poorly advised, this fact alone cannot support a belated claim of ineffective counsel."

629 S.W.2d 4, 9 (Tenn. 1982) (quoting Robinson v. United States, 448 F.2d 1255 at 1256 (8th Cir.

1971)). Our high court, quoting United States v. DeCoster, 487 F.2d 1197, 1201 (1973), ruled that

appellate courts should not "'second guess strategic and tactical choices made by trial counsel'" and

that it is only "'when counsel's choices are uninformed because of inadequate preparation, a

defendant is denied the effective assistance of counsel.'" Id. The high court explained:

It cannot be said that incompetent representation has occurred merely because

other lawyers, judging from hindsight, could have made a better choice of tactics.

As former trial lawyers, we know that a criminal trial is a very dramatic, vibrant and

tense contest involving many variables and that counsel must make quick and
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difficult decisions respecting strategy and tactics which appear proper at the time but

which, later, may appear to others, or even to the trial lawyer himself, to have been

ill considered.

Id. at 9-10 (citation omitted).

In retrospect, it may have been a better strategy to have insisted upon medial proof which

would have included testimony about the 1991 assault of the victim. The 1991 medical report did

not, however, conclusively state that the victim's hymen had been torn. Moreover, the examination

of the victim conducted two years after the allegations against Miller but two years before the

allegations against the petitioner established that the victim's genitalia was normal. It is at least

possible that the jury might have reacted negatively to trial counsel's use of the 1991 report as proof

that Miller, rather than the petitioner, caused the opening of the victim's hymen. Further, the

decision to enter into the stipulation so as to minimize the impact of live medical evidence qualifies

as a reasonable trial strategy. In consequence, the petitioner is not entitled to relief on this issue.

The petitioner also claims that his trial counsel was ineffective by failing to investigate the

prior criminal record and prior bad acts of state witness James Newby because such evidence could

have been used to impeach the credibility of the witness. The state submits that the petitioner has

waived our consideration ofthis issue by failing to cite to the record, failing to develop his argument,

and failing to cite to any relevant authority. In the alternative, the state asserts that Attorney Caputo

was not deficient.

Initially, the petitioner has failed to support this issue with argument or citation to authorities.

Moreover, he has failed to include appropriate references to the record. "Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will be treated

as waived in this court." Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7); State

v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987).

More importantly, the petitioner is not entitled to relief on the merits of his claim. At the

evidentiary hearing, Attorney Caputo testified that he was aware of Newby's prior record of

misdemeanor convictions. Because none of the convictions involved dishonesty, it was Attorney

Caputo's opinion that he would not have been permitted to ask Newby about them at trial. Attorney

Caputo recalled that he did cross-examine Newby about a felony theft charge that had been

dismissed by the state after he agreed to be a witness against the petitioner.

Tennessee Rule of Evidence 609 governs the use of prior criminal convictions to impeach

a witness. That rule provides that "evidence that the witness has been convicted of a crime may be

admitted if . . . the crime [is] punishable by death or imprisonment in excess of one year under the

law under which the witness was convicted or, if not so punishable, the crime must have involved

dishonesty or false statement." Tenn. R. Evid. 609(a). Because none of Newby's prior convictions,

which were all for misdemeanor offenses, involved dishonesty or false statement, Attorney Caputo
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would not have been permitted to use them to cross-examine him. In our view, Attorney Caputo was

not ineffective for failing to do that which is prohibited by the Rules of Evidence.

The petitioner next contends that Attorney Caputo was ineffective by failing to use the

inconsistent statements given by the victim to the Department of Human Services, the Rape Crisis

counselor, and the jury. The state submits that the petitioner has waived this issue by failing to

provide references to the record, failing to develop his argument, and by failing to cite relevant

authorities. In the alternative, the state asserts that the petitioner failed to establish his claim by clear

and convincing evidence because he failed to present proof of the inconsistent statements.

As the state correctly points out, the petitioner has waived our consideration of this issue.

Waiver notwithstanding, the petitioner is not entitled to relief. While he claims that Attorney Caputo

should have used inconsistent statements provided by the victim, he did not present any statement

made by the victim at the evidentiary hearing. In Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990), this court placed the burden on the post-conviction petitioner to produce that testimony

which he contends may have been helpful. No one was called to corroborate the claim that the

victim made inconsistent statements. Further, the record establishes that Attorney Caputo crossexamined the victim thoroughly about certain inconsistent statements she made to her mother and

the petitioner's ex-wife about the allegations. In our view, the evidence does not preponderate

against the finding of the post-conviction court that the petitioner was not prejudiced by any inaction

on the part of Attorney Caputo.

II

The petitioner next contends that the state violated the requirements of Brady v. Maryland,

373 U.S. 83 (1963), by failing to disclose a document created by the health department in 1998

wherein the victim reports that she had sex for the first time at age thirteen. He also complains that

his trial counsel was ineffective for failing to discover this document. The state submits that there

was no Brady violation and trial counsel was not ineffective because the petitioner is prohibited by

statute from having access to the victim's records and because the document was created after the

petitioner's trial.

In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme

Court ruled that a prosecutor has a duty to furnish exculpatory evidence to the defendant upon

request. Exculpatory evidence may pertain to the guilt or innocence of the accused and/or the

punishment which may be imposed if the accused is convicted of the crime. State v. Marshall, 845

S.W.2d 228, 232 (Tenn. Crim. App. 1992). Any "suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either to

guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S.

at 87. Thus, the duty to provide arises when the evidence is material, the evidence is favorable for

the defense, and a proper request for production is made by the defendant. See United States v.

Bagley, 473 U.S. 667, 675 (1985); Strouth v. State, 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986).

Even in the absence of a specific request, the prosecution has a constitutional duty to turn over

exculpatory evidence that would raise a reasonable doubt about a defendant's guilt. United States
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v. Agurs, 427 U.S. 97 (1976). "Evidence 'favorable to an accused' includes evidence deemed to be

exculpatory in nature and evidence that could be used to impeach the state's witnesses." Johnson v.

State, 38 S.W.3d 52, 55-56 (Tenn. 2001) (citing Bagley, 473 U.S. at 676; State v. Walker, 910

S.W.2d 381, 389 (Tenn. 1995); State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998)).

Before this court may find a due process violation under Brady, the following elements must

be established:

1. The defendant must have requested the information (unless the evidence is

obviously exculpatory, in which case the state is bound to release the

information whether requested or not);

2. the state must have suppressed the information;

3. the information must have been favorable to the accused; and

4. the information must have been material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearing).

Although Attorney Caputo recalled making a general discovery request in this case, the

motion does not appear in the record. There is also no indication that the petitioner specifically

requested discovery of the victim's health department records. Further, it is unclear whether the

petitioner would have been entitled to the document had he requested it. Tennessee Code Annotated

section 37-1-612 mandates that all records of child sexual abuse remain confidential. The statute

grants access to the records only to "(a) law enforcement officers investigating child sexual abuse,

(b) the district attorney general, (c) grand jurors through power of a subpoena, (d) those engaged in

genuine research and audits, (e) probation officers or the like charged with presenting information

in judicial or administrative proceedings, and (f) those treating the child." State v. Gibson, 973

S.W.2d 231, 244 (Tenn. Crim. App. 1997) (citing Tenn. Code Ann. § 37-1-612).

In Gibson, the defendant alleged that the trial court erred by denying him access to the child

victim's records from the Department of Human Services. This court concluded that the trial court

did not err by denying the petitioner's request because Tennessee Code Annotated section 37-1-612

does not list the alleged abuser as a party who may have access to such records. Id. In State v. James

Dison, No. 03C01-9602-CC-00051 (Tenn. Crim. App., at Knoxville, Jan. 31, 1997), this court held

that Dison was not permitted under either Tennessee Rule of Criminal Procedure 16 or Brady to

inspect the victim's entire file from the Department of Human Services. 

In our view, the petitioner was not entitled to the record in question. Because the petitioner

would not have been entitled to the record, even if he had requested it, the state did not violate the

requirements of Brady by failing to disclose the document. Thus, Attorney Caputo was not

ineffective for failing to discover and utilize at trial a document to which he had no entitlement.

Second, and more importantly, the document in question was created in 1998, more than a

year after the conclusion of the petitioner's trial. In consequence, it is our view that the state did not
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violate the requirements of Brady by failing to disclose a document that did not exist. Obviously,

Attorney Caputo was not ineffective by failing to discover a non-existent document.

Moreover, even if the document did exist and the petitioner was entitled to it, it is our view

that no Brady violation occurred because the petitioner has failed to establish that the document was

exculpatory. In the document, which appears to be a questionnaire created by the health department

for patients seeking family planning advice, the victim lists the age at which she first had sex as

thirteen. Within the same form, however, the victim indicates that she had previously been sexually

abused. In our view, the victim's statement that she first had sexual intercourse at age thirteen does

not necessarily contradict her claim that she was raped by the petitioner at an earlier age. In

consequence, the petitioner is not entitled to relief on this issue.

III

As his final issue, the petitioner contends that the post-conviction court erred by prohibiting

Attorney Raybin, who had been qualified as an expert witness, to testify as to the ultimate issue of

the effectiveness of trial counsel. The state submits that the petitioner has waived our consideration

of this issue by failing to support it with argument, citation of authority, and references to the record.

In the alternative, the state asserts that the post-conviction court did not abuse its discretion by

limiting the testimony.

The admissibility of expert testimony is governed by Rules 702 and 703 of the Tennessee

Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). Rule 702

addresses the need for expert testimony and the qualifications of the expert:

If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. "To give expert testimony, one must be particularly skilled, learned or

experienced in a science, art, trade, business, profession or vocation. The expert must possess a

thorough knowledge upon which he testifies that is not within the general knowledge and experience

of the average person." Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 443 (Tenn. 1992)

(citing Kinley v. Tennessee State Mut. Ins. Co., Inc., 620 S.W.2d 79, 81 (Tenn. 1981)). Further,

Tennessee Rule of Evidence 704 provides that "testimony in the form of an opinion or inference

otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the

trier of fact." Tenn. R. Evid. 704.

Generally, the admission of expert testimony is largely entrusted to the sound discretion of

the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The trial court's decision may

be overturned on appeal only upon a showing that the trial court abused its discretion. Id. "The

abuse of discretion standard contemplates that before reversal the record must show that a judge

'applied an incorrect legal standard, or reached a decision which is against logic or reasoning that

caused an injustice to the party complaining.'" State v. Coley, 32 S.W.3d 831, 833 (Tenn. 2000)
-12-

(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)); see also State v. Shuck, 953 S.W.2d 662,

669 (Tenn. 1997).

In this case, the post-conviction court permitted Attorney Raybin to be qualified as an expert

witness on the issue of Attorney Caputo's performance and ruled that he could testify as to "the

degree of knowledge, skill, prudence, and diligence, which is commonly possessed and exercised

by lawyers and the standard of care in the community to which they're testifying." The court

determined, however, that Attorney Raybin would not be permitted to offer an opinion as to whether

Attorney Caputo was ineffective, concluding that "that's just for the judge to do the best he can with

what he believes, once all that's presented." The record establishes, however, that Attorney Raybin

did, in fact, offer his expert opinion as to whether the deficiencies in AttorneyCaputo's performance

undermined confidence in the jury verdict. He stated that "putting all these things together, . . . it

would have been a different result." Although the post-conviction court should not have prevented

Attorney Raybin from offering his opinion on the ultimate issue, see Tenn. R. Evid. 704, any error

can be classified as harmless. Attorney Raybin actually offered his opinion that trial counsel was

ineffective. In consequence, the petitioner is not entitled to relief.

Accordingly, the judgment of the post-conviction court is affirmed.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE