### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A ugus t 15
, 200 7

WI LLI AM DOUGLAS Z UKO WSKI v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2000-C- 1515 J. Randall Wyatt, Judge

No. M2006- 02083-CCA -R3-P C - F iled Janu ary 9, 2008

The pe titioner, Wi lliam Dougla s Z ukowski, was convic ted of five counts of ra pe of a ch i ld and
sentenc ed to twenty -five y ear s on eac h count, to be served consecutively for a total effe ctive sente nce of 125 y ear s. He late r pled guilty to three a dditional count s o f ra pe of a child and one c ount of

a g g ra vate d r a pe and a c c e pte d a

se nte nc e of

tw e nty -f ive y ears , to be se rv e d c on c ur re ntl y wi th h is
pr io r sen ten ce. O n d ir e c t a pp e a l, t his c ourt a ff ir me d h is c on vic tio ns . In h is p e tit ion fo r p os tconviction re lief, the pe titioner contends he r ece ived ineff ective a ssistance of c ounsel. After revie w,

we a ffirm the judg ment from the post-c onviction court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J
., delivere d the opinion of the court, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

JohnT. Ha

rd ing , N a sh vil le , T e nn e sse e , f or the a pp e lla nt, Willi a m D ou g la s Z uk ow sk i.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , As sis ta nt A tto rn e y

Ge ne ra l; Vi ct o r S

. (Torr

y ) Johns on, I I I , District Attorney Gene ral; and B rian Holmg ren, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I n 2 00 1, the pe tit ion e r w a s c on vic te d o f f ive c ounts of

ra pe of a c hil d a nd la te r p le d g uil ty to three a dditional counts of rape of a c hild and one count of ag g ravated rape. He rece ived a total eff ective se ntence of 125 y ear s in confinement. On Ma y 18, 2004, afte r an unsuc cessf ul appea l of his convictions, the petitioner filed a pro se pe tition for post-conviction relief . He wa s appointed

co u n sel and filed an amende d petition f or post-conviction relief on May 17, 2006. Follo wi n g a hear ing on Aug ust 24, 2006, the post-conviction court e ntere d an orde r deny ing a ny relief

.

The fa cts of the c ase w ere provided by this court on direc t appea l.-2- De borah Gai l Ma

y be rr y , a sp e c ia l e du c a tio n te a c he r at Mc Murr ay Mid dle S ch o o l
, t es t i fi ed t h at s h e h ad b ee n a t ea ch er fo r fo u r y ea rs an d t h at p ri o r t o t ea ch i n g, she had be en a spe cial education assis tant for eighte en y ear s. She stated that she ha d taug ht eig hth an d ninth gr ades at McMurra y for the pa st two y ear s. May berr y te sti fi e d th at th e re are thr e e dif fe re nt cl a ssi fi c a tio ns fo r t

he sp e c ia l e du c a tio n s tud e nts at McMu rr ay M iddle School. Accor ding to Ma y berr y , McMurra

y offe rs a “ life

s k il ls ” c la s s f

o r c h il dr e n w h o ar e “ v e r

y lo w f u n c ti o n in g , ” f

iv e r e s o u r c e c la sses for children w h o “ ar e a li tt le lo w e r a c a d e mi c a ll y th an th e o th e r s tu d e n ts , ” an d a “Moder ate Interve ntion Progra m for fr ag ile children.” She testified t hat s he taug ht the Moderate I nterve ntion class and ex plained that the class is for childre n of var y ing

aca demic leve ls who have e motional issues.

May be rr y te sti fi e d th a t sh e ta

ug ht t he vic timduri ngthe 19 99 -2 00 0 a c a de mic
y ear . She stated that the victim was in the se venth gra d e an d that the victim was moved from one of t he resource classes to her class around J anuar y 2000. May

berr y stated that she thoug ht the victim ha d just turne d twelve y ear s old when she e ntere d her class. She testified that the victim wa s aca demically very low functioning , that she wa s probably functioning at about a thi rd or fourth gra de level, and that she wa s also mildly

mentally retarded. Ac cordingto May berr y , in order to be classified a s mildly mentally reta rded, a child must aca demically function sig nificantly lower tha n his or her peer s, and he or she must also have a n extreme defic it in two adaptive ar eas such as soc ial skills, community involvement, self-c are , family participation, or the ability to make fr iends. She testified that mildly mentally reta rded c hildren also have difficulty with rea soning a

nd abstrac t thinking.

May berr y testified that the victim wa s in her cla ssroom all day . She descr ibed the victim as “a very swee t child” who “loved every body .” May

berr y stated t hat the victim “trusted eve ry

body ” and c ould sometimes be “too trusting” of people . She also stated that the victim was truthful. May berr y testified that the victim finished the seventh g rade at McMurra y and then transfe rre d to another sc hool the next y ear

. May berr y testified that in the s pring of 2000, she m ade a ref err al to the Depa

rtment of Human Ser

vices re g ardingthe victim, an d someone fr om the Depa rtment of Chi ldr e n’ s Se rv ic e s v isi te d th e sc ho ol.

On cr oss-examination, Ma y berr y maintained that the victim was ve ry truthful and trusting . She testified that the victim’s memory reg ardinglife experienc es

seeme d to be “pr etty

g ood.” May

berr y testified that the victim o ft en repe ated the same stories. She a cknowledg ed that she did not know the acc urac y of the victim’s stories.

The victim testified t hat s he was fourtee n y ear s old and that she wa s born on Dec emb e r 5
, 1 9 8 6

. Sh e s tate d th a t s h e w a s in th e e ig h th g r a d e an d th a t s h e lived with her Aunt Carol, t o whom she re fer red a s “mom.” The vic tim testi fied that the-3-

[petit ioner] is her uncle and that he was marrie d to Carol. She re called that when she

wa s in the se ve nth

g ra de , s he a tte nd e d M c Murr ay Mid dle Scho ol, wh e re Ms. May berr y was he r tea cher . She repor ted that when she attended McMurra y , she wa s living in a house on Patterson Street with the [petitioner]; hi s wife, Car ol; a nd the vic tim ' s b ro the r, Chr is. Th e vic timide nti fi e d th e [pe tit ion e r] i n c ourt

. The prose cution showed the victim a picture of a fe male. The victim testified that the g irl in the picture wa s not wear ing c lothes. The victim iden t i fi ed seve ral parts of the g irl’s body , including the brea sts (which she r efe rre d to as the che st), the
vag ina (whic h she re fer

red to a s the “fr ont private” ), and the “butt.” The prosec ution then showed the victim a picture of a man. The victim stated that the man w as not

wea ring clothes. She then identified se vera l pa rts of the man’s body , including the chest a nd the penis (whic h she re fer red to a s the “fr ont private” ).

The victim ac kn o wl ed gedt h at s h e k n ew t h e d i ff er en ce b et we en “ago o d

touch and a ba d touch.” She state d that a teacher patting her on the back would be a “ g ood touch.” How ever , she testified that if someone touched her on her chest or he r “f ront bottom part,” that would be a “bad touc h.”

The victim ac knowledg ed that whe n she wa s in the seventh g rade
, she knew

a man named “J. D.” During cross-e x amination of the victim, “J . D.” wa s identified as J. D

. G a in e s

. Sh e s tate d th a t J. D

. w a s a “ CB f r ie n d ” o f th e [p e ti ti o n e r ]’s. She testified that the [petitioner] drove for a trucking company

. The victim repor ted that the [ petitioner]’s CB nickname was A.K., which stood for “ Arizona Kid,” a nd that her ow n CB nickname wa s “B l ondie.” The victim reca lled meeting J . D. on one

occa sion at a Waffle House, a nd she also re called him visiting he r house.

The victim testified that on one oc casion while she was in the seventh g rade
, she and the [petit ioner] helped J. D. move. She rec alled that the [petiti oner] drove his gr een F ord t ru ck

. The victim stated that J. D. moved from a house to a duplex and that the move took plac e duringthe day time. She identified in court photog raphs of both J . D.’s house a

nd his duplex. The victim rec alled packing box es for J

. D. and seeing th e b o xe s b e in g lo a d e d in to th e [p e ti ti o n e r ]’ s tr u c k

. Sh e te s ti f

ie d th at the box es we re the n taken to J. D.’s duplex

.

The victim testified that once at the duplex, she unpacke d box es in diffe rent rooms. She testified that at one point she w ent into the bedroom with the [petitioner] and J. D. W hen aske d what happe ned in the bedr oom, the victim stated, “They touched me.” She rec alled that the [ petitioner] was the first one to touch her and that he touche d her on the chest on top of her c lothes. The victim testified that J . D. then touched he r che st underneat h h er c lothes. The victim testified that the [petitioner] and J. D. “made [her] suck their fr ont private.” She stated t hat the [petitioner] forced her to perform the act first. The victim repor ted t hat the [petitioner] gra bbed her neck-4-

and pushed he r hea d down. She t estified that the [ petitioner] “made [her] m ove [her] head ba ck and forth.” T he victim testified that af ter pe rfor ming or al sex on the [peti tioner], “he stuck his front pr ivate in [her vag ina].” She expl ained that the [petit ioner] pushed her ba ckwa rds onto the mattress and g ot on top of her. The victim testified that the [ petitioner] took off her pants and underwe ar. She state d that the [petiti oner] was we aringunderw ear

.

The victim testified t h at t h e [petit ioner] stopped the rape when “ he ca me.” She explained, “White stuff came out of his front private .” S h e s t at ed that the [peti tioner] ejaculate d onto her stomach. T he victim testified that af ter the [petit ioner] was finished, “ he shrug g ed his head a t J . D.,” who ha d been in the r oom t h e e n t i r e t i m e

. S h e t e s t i f i e d t h a t J. D

. t h e n “ d i d t h e s a m e t h i n g

. ” S h e s t a t e d t h a tJ. D. “f orce d [her] t o suck his front private.” The victim ex plained that J. D. “g rabbe d the back of [her] nec k, the same place [t he petitioner] did.” She testified that J. D. also made he r move he r hea d back a nd forth. The victim t es t i fi ed t hat af ter perf orming oral sex on J

. D., he “stuck his f ront private in [hers]” and “moved ba ck and for th.” She re called that J . D. stopped when “ he ca me.” She e x plained that “white stuff came out of his f ront private” onto he r stomach. The victim rec alled that J . D. also “put his mouth on [her] front private” and “moved his tongue in a circ le.”

The victim testified that afte r the encounte r with the [petitioner] and J . D., she clea ned off her st o m ach, got dr essed, a nd “finished unpa cking the truck.” She testified that neither

the [petiti oner] nor J. D. said any thing to her . She rec alled that it was nig ht when they finished unpacking. The victim testified that bef ore she went with the [petit ioner] to help J

. D. m ove, the [petit ioner] told her that “J. D. was g oing
to ma ke [her] suck his dic k.” The victim testified that both the [petitioner] and J . D.

wer e in the room duringthe entire encounte r.

The victim test ified that a c ondom is “something a g uy puts on his front private to make sure a

g irl doesn’t g et preg nant.” She state d that neither the [pe tit ion e r] n or

J. D. wo re a

c on do m w he n th e y

se xua lly pe ne tr a te d h e r. Th e vic tim
repor ted that she started her period when she was nine y ear s old. She rec alled that the incident at J. D.’s duplex took place wh i l e s h e wa s in the seventh g rade . She
te sti fi e d th a t sh e wa s atte nd ingMc Murr ay Mid dle sch ool a t th e tim e . T he vic tim
te sti fi e d th a t sh e pr e vio us ly c a lle d th e [pe tit ion e r] “ da d, ” bu t sh e no w c a lls him B ill

.

On c ro s s -examination, the victim testified that she lived with her birth mother, Pamela, until she was e ight y ear s old, a nd then she we nt to live with the [ petitioner] and his wife

. S h e stated that she ha s a brother named Chris who a lso went to live wi th t he [pe tit ion e r] and his wi fe

. Th e vic timte sti fi e d th a t Ch ri s n owliv e s w iththe ir birth mother.-5- The victim testified that she had attended Nor th Parkway

Middle School for
two wee ks and that prior to attending N ort h P arkway , she had attended Selmer Middle School. She stated t hat s he attended S elmer for half of her e ighth- g rade y ear , and prior to that, she had attended McMurra y Middle School. The victim could not

reme mber the na

me of he r tea cher

at Selmer Middle School.

The victim maintained that she he lped J . D. Gain es m o ve only once. She stated that Ga ines moved on one other occa sion, and she watche d his children. She stated that her

brother did not help wit h the m ove. The victim testified that during the ra pe, Ga ines’s g irlfriend, D ebbie, wa s at work. The victim testified that she wa s interviewe d a couple of t imes by police, but she admit ted t hat s he did not mention the
encounte r in this case.

The victim testified t hat after the [petit ioner] was a rre sted, her br other we nt to K ans a s to liv e wi th t

he ir bir th mothe r. She re po rt e d tha t the [pe tit ion e r] a nd his wife d i v o rc ed, and the victim stay ed with her aunt. The vic tim testi fied that she wanted to g o to Kansas a lso, but her aunt wa nted her to sta

y with her in Tenne ssee. She identified in court two letter s that she had wr itten to her mother. One of the letters, date d J une 17, 2000, stated, “ Dea r Mom, I want to c ome home. Ihate he r.” Th e vic tima c kn ow le dg e d th a t sh e wr ote , “ She be a ts t he sh it o ut o f m e .” Th e vic tim

a lso a c kn ow le dg e d th a t in the oth e r l e tte r, sh e wr ote , “S he beats m e wh e n I ta lk t o y ou. She leave s bruises. Get me out of here. I can’ t take it any more. I hate it her e. Get me out, plea se. I

want out.”

The victim testified that she wa s punishe d whene ver she did not do what Carol wanted her to do. She stated that the last time her aunt “be at” he r wa s when the [petiti oner] was still livi ng in her a unt’s home. Howe ver, she admitted that she

wr ote a t le a st o ne of

the le tte rs a ft e r t

he [pe tit ion e r] ha d le ft the ho me . T he vic tim testified t hat s he wanted t o live with her birth mother. She acknow ledg ed that if she told the court t hat the [petitioner] di d not rape her, she would be punished. The victim testified that she lived in Nashville and that she lived in Nashville the pre vious

su mme r. On

re -d ir e c t e xami natio n, the vic timma int a in ed that sh e tol d th e tr

uth about the incident at the Gaines home

.

Sue Ross testified that she is a pediatric nurse pr actitioner at Our Kids Center in Nashville, Tenne ssee. She stated that Our Kids is an outpatient clinic of Ge nera l Hospital that is de signe d primarily to pe rfor m me dical eva luations of children w ho

are alleg ed to have been se x ually abused. Ross testified that betwee n 600 and 800

c hil dr e n a

re e va luate d at th e c lin ic e a c h y e ar. She te sti fi e d th a t a s a nurs e prac titioner, she per forms phy sical ex aminations on children a nd is capa

ble of diag nosin g c o mm o n c h il dh o o d il ln e s s e s

. T h e d e f e n s e s ti p u late d th a t Ro s s is a n

e xpe rt in t he fi e ld o f c hil d s e xua l a

bu se e va luatio ns

.-6- Ross testified that s h e is one of two nurse prac titioners in the clinic who
pe rf or m phy sic a l e va luatio ns on chi ld ren. Sh e sta

te d th a t th e c lin ic a lso ha s a

“ ps y c ho -s oc ia l st a ff

,” wh ich in clu de s tw o s oc ia l w or ke rs and a c hil d p sy c ho log ist

. The staf f g ather s information about the child and of ten interview s the child and whoeve r bring s the child into the clinic. Ross testified that she had be en at Our Kids Center f or t en y ea rs and that she had examined approximately three thousand children. She te stified that rec ords ar e kept on all of the childre n who ar e examined at the clinic.

Ross testified that a “he ad to toe examination” that “includes a focus on the
g enital ar ea” is perfor

med on children br oug ht into the clinic who are suspected of being sexually

abused. She r eporte d that for the g enital are a, a culposc ope is used. Ros s te sti fi e d that a c ulp os c op e is “ no thi ng mor e tha n a me dic a l te rm fo r .

. . a pa ir of binocular s that’s mounted on a stand, with a l i gh t s ource , and a 35mm ca mera attache d to it.” Ross t estified that the c ulposcope mag nifies the g enital area so that it is easier t o see. Ross testified that photog raphic slides of most children who a re examined are maintained at the c linic.

Ross testified that the vi ctim in this case was ex amined at Our Kids Center in May 2000. She stated that a n o t h er p ed iatric nurse prac titioner at the clinic, Ba rbar a Speller- Br own, per formed the exam on the victim. R oss reporte d that Speller-B rown mov e d

to Wa s h in g to n

D

. C. in Au g u s t 2000. H oweve r, Speller- Br own took notes on the ex amination which R oss revie wed before testify ing. Ross stated that she also re viewed slides that we re taken of the victim’s ge nital are a.

Acc ording to Ro s s , Speller-B rown noted that she observe d injury to the victim’s hy

men and that there was “ver y littl e hy menal tissue in a cer

tain position of the hy men.” Ross testified that if the f ace of a clock we re to be superimposed on the vic tim ' s g e nit a l are a , th e vic timwa s mi ss ing hy me na l ti ssu e fr om f

our o ’c loc k to seven o’ clock. She r eporte d that the hy men “is basica lly

a piec e of tissue that ser

ves . . . for lac k of a be tter term, sort of a g atewa y . . . into the vag ina.” Ross explained that when most people think about the fema le’s ex terna l ge nitalia, they visualiz e the labia, or the outer lips. She stated that whe n the l abia is parte d, there is an opening that leads into the vag ina. R oss testified, “B efor e y ou actua lly g et to the vag ina, though, i n p repubital a

nd in adolesce nt children, y ou will have hy menal tissue.” Ross then ill ustrated he r testimony by using two slides of the victim’s g enital ar ea.

Ros s te sti fi e d th a t th e inj ur y to t he victim ’s vag ina

ind ic a te d th a t th e re wa s a “p e n e tr a ti n g tr a

u ma to th e ar e a

. ” Sh e te s ti f ie d th a t th e v ic ti m’ s a

u n t, Carol Z ukowski, broug ht the victim to the clini c. Ross testified that medical histories wer e obtained fr o m b oth the victim and Z ukowski. Neither the victim nor Z ukowski indicated that the victim ha d suffe red from any injury other than se x ual pene tration. Ros s te sti fi e d th a t a

bs e nt a n a c c ide nta l in

jur y , s e xua l pe ne tr atio n w a s the mos t li ke ly-7-

e xplanatio n f

or t he tra uma . H ow e ve r, sh e te sti fi e d th a t it wa s n ot p os sib le to de te rm ine wh o ca

us e d the inj ur

y

. Ros s tes tif

ie d tha t the vic timinf

or me d th e c lin ic that she had been sexually penetr ated by a person named Phill ip. She stated that the vic timdid

no t in dic a te wh e the r t

he pe ne tr a tio n w a s c on se ns ua l.

On cr o s s -examination, Ross t estified that ther e wa s no way to determine when the injurie s to the victim occur red. She state d that the victim’s aunt provided inf or ma tio n th a t th e vi cti m ha d b e e n f or c e d to pe rf

or m or a l se x an d w a s se xua lly penetr ated by a man named Philli p Young in J anuar y 1999. Ross acknowledg ed that the incident could e x plain the victim’s injury . She also ac knowledg ed that sexual intercour se with J . D. Gaine s could explain the injury

.

Jose phGa ine s te sti fi e d th a t a t th e tim e of the [pe tit ion e r]’ s tr ia l, h e wa s in ja il fo r t he ra pe of the vic tim . Ga ine s adm itt e d th a t du ri ngthe mov e of

his re sid e nc e in September 1999, he eng ag ed in sexual acts wit h the vi ctim. He also a cknowledg ed that he had be en cha

rg ed in Flor ida with sexual abuse ag ainst his daug hters, but that he wa s n e ve r c on vic te d o f t ho se c ha rg e s.

Gaines testified that he met the [petit ioner] “ on the CB radio” and that he had kn ow n th e [pe tit ion e r] s inc e a ro un d th e mid dle of 19 97 . H e state d that a t so me po int
, he wo rk e d w ith the [pe tit ion e r] a t B re ntw oo d Se c ur ity

. Ga ine s te sti fi e d th a t hi s ‘ CB handl e ” w a s “ J. D

. ” an d th a t mo s t p e o p le kn e w h im a s “ J. D

. ” H e s tate d that the [petit ioner]’s “handle ” wa s “A. K.,” whic h stood for “A rizona Kid.” Ga ines testified that he a lso knew the victim. Gaines testified that the prosec ution did not of fe r h im a ny de a ls in ex chang e fo r h is t e sti mony and tha t he wa s g ivi nghis testimony beca use “the truth needs to be told.”

Ga ine s te sti fi e d th a t in

the su mme r o f 1 99 9, he li ve d o n Jac ks on ian in Her mitage , Tenne ssee. He stated that in September, 1999, he moved to a duplex on L e ba no n Pi ke . G a ine s te sti fi e d tha t the [pe tit ion e r] an d the vic tim he lpe d h im w ith his move. He st at ed t h at h e aske d the [petiti oner] to help him move beca use the [petit ioner] had a pickup tr uck.

Gaines a dmitted that he enga g ed in sexual acts with the victim in one of the bedrooms of the residenc e on L ebanon Pike. He stated that he per formed or al sex on the victim and then vag inally penetr ated he r. Ga ines testified that he e jaculate d on the victim’s stomach. He repor ted that the [petitioner] was present in the r oom when Ga ine s p e rforme d the a c ts o n th e vic tim . G a ine s te sti fi e d th a t th e [pe tit ion e r] a lso
eng ag ed in sexual act s wi t h the victim. He re called that the victim perfor med ora l

se x on th e [pe tit ion e r] a nd that th e [pe tit ion e r] v a g ina lly pe ne tr a te d th e vic tim

. Gaines te stified that while he was performing oral sex on the victim, the [petit ioner] tol d h im that “w hate ve r [Ga ine s] was do ing , to ke e p o n d oin g it, be c a us e [the vic tim ]

was a ppare ntly liking it.” Ga ines testified that af ter he and the [petit ioner] both raped-8-

the victim, the [petit ioner] told Gaines “that if it would have b ee n h is daug hter, he wouldn’t have done it.” He identified in c ourt a picture of the duplex wher e he a nd the [petiti oner] rape d the v i ct i m

. Gaines testified that he did not wea r a c ondom during the ra

pe and that he did not notice if the [petitioner] wore a c ondom.

On c ro ss-examination, Gaines testified that he move d at least thre e times betwee n 1997 and 1999, but he maintaine d t h at the [petiti oner] helped him move only once, when he and the [petit ioner] rape d the vi ctim. Gaines stated that Rebec ca Bur nette wa s his step-daug hter a nd that Elaina Ga ines was his daug hter. He testified tha t B u r n e tt e h a d mya to n ia dy s tr o p h y w h ic h a f f e c te d th e n e r

v e e n d in g s o f

the

mus c le s. He state d tha t Burn e tte a lso ha d lea rn ing dis a bil iti e s, bu t she wa s abl e to g raduate from hig h schoo l

. Ga i nes testified that in 1987 he w as ac cused of raping Bur nette. He did not rec all alleg ations involving Elaina Gaines. H oweve r, he later admitted that he wa s arr ested for molesting Elain a Ga i n es. Gaines acknow ledg ed that on J un e 19 , 200 0, his c hil dr e n, B ra dy and Sha nia Ga ine s, we re re mov e d f ro m hi s home. Gaine s maintained that he ne ver touc hed his own childre n.

Gaines te stified that when he was fir st approac hed by p o lice re g ardingthe [petit ioner], he did not tell them that he had sexually assaulted the victim or that he ha d se e n the [pe tit ion e r] se xua lly a ssa ult the vic tim

. Ga ine s te sti fi e d th a t he the n to ld polic e t h at t h e victim was the sexual ag g ressor. H e stated that the victim was “g rabbi n g [hi s] private parts” w hile he wa s try ing to pa ck up his house and that he told her “no.”

De te c tiv e Da

vid Z oc c ola te sti fi e d th a t he w or

ks fo r t he Da vid so n Co un ty Met ro p olitan Poli ce D epar tment in the y outh service s division and that he was assig ned to the Child P hy sical and Sexual Abuse Unit. Z occola testified that he ha d be e n a po lic e of fi c e r f or tw e nty -f

our y e ars and tha

t he ha d b e e n inve sti g a tin g c hil d

a bu se c a se s f

or thr e e y e ars . Z oc c ola

te sti fi e d th a t in Ma

y 20 00
, he wa s a ssi g ne d to investigate this case. Prior to Z occo l a b ei n g assi g ned to the ca se, De tective Chad Slagle had bee n investigating a case involving the v i ctim. Z occola testified that Sla g le ide nti fi e d th e [pe tit ion e r] an d a man name d Phill ip Y ounga s b e ingsu sp e c ts in the c a se

. Z oc c ola re c a lle d that Yo un g wa s se ve nte e n y e ars old , li ve d in the same

ne ig hb or ho od a s th e vic tim , a

nd wa s a fr ie nd of the vic tim ’s br oth e r. Ac c or din g to Z occola , Detec tive Slagle investigated a c ase in whic h You n g wa s acc used of

a pp ro a c hin g the vic timon

the str e e t, f

or c ing he r int o a d itc h, and ra pin g he r. Z oc c ola testifie d th a t h e in te r

v ie w e d Y o u n g an d th a t Y o u n g “ ma d e a d mi s s io n s th a t h e had numerous sexual encounte rs with [t he victim].”

Zocc ola testified that he w as assig ned to the ca se on May 15, 2000 when a

se c on d c omp la int

wa s ma de to the po lic e de pa rtme nt re g ard ing the vic tim . Z oc c ola
te sti fi e d th a t he sp ok e to t he [pe tit ion e r] o n M ay

16 , 2 00 0. He state d th a t so me tim e

a ft e r spe a kin g to the [pe tit ion e r], he sp ok e to the [pe tit ion e r]’ s wif e , Ca ro l Z uk ow sk i.-9-

Ac c or din g to Z oc c ola , Ca ro l Z uk ow sk i pr ov ide d p oli c e wi th a lis t of name s o f t

ho se wh o h a d h a d c on ta c t w iththe vic tim . T he lis t in c lud ed peo ple in t he “ CB ra dio network.” Z occola

testified t h at J . D. Gaine s’s name w as on the list furnished by Carol Z ukowski.

Z occola testified that he interviewe d Gaines in the pa rking lot of a Shoney ’s
restaur ant. He stated that as a tactica l matter, he told Ga ines that he wa s interested in o bta ini ngin for mat io n a bo ut t he [pe tit ion e r]. Z oc c ola

re po rt e d th a t G a ine s to ld him that he and the [petitioner] had eng ag ed i n sexual acts with the victim at Gaines’ s duplex . Acc ording to Z occola
, Gaines said that he had per formed or al sex

on the vic tim and that he ha d en g a g e d in sexua l inte rc ours e wi th the vic tim . Z oc c ola
te sti fi e d th a t G a ine s a lso tol d h im that he ma de the vic tim pe rf or m ora l se x on h im. Gaines told Zocc ola t hat t he [ petitioner] had enga g ed in sexual intercour se with the victim on a day

when the [petitioner] and the victim were helping Gaines move

. Z occola testified that he did not make a ny promises to Gaines in exchang e for the information he pr ovided. He stated that Gaine s expressed remorse for what he ha d done to the victim.

On cros s-e xami natio n, Z oc c ola te sti fi e d th a t w he n h e wa s a ssi g ne d to thi s

case , the [petiti oner] was the primary suspect whom he wa s assig ned to investig ate. He testified that he interview ed the victim on May 16, 2000 and that t h er e wa s no mention of any encounte rs involving Gaines a nd the [petiti oner]. Z occola testified that he wa s also prese nt on Ma y 17, 2000 when the vic tim had a fore nsic interview. He state d th a t du

ring th e May

17 int e rv ie w, the vic timme nti on e d in a pp ro pr ia te behavior by the [petiti oner], but she did not mention Gaines.

Z occola testified that af

ter the [petitioner] was taken into c ustody on May 16, 2000, he did not return to his home with Carol Z ukowski. He stated that Carol Z ukowski reta ined custody of t he victim
, but the vi ctim’s brother, Chris, went to live with his birth mot her in Ka nsas. Z occola

acknow ledg ed that Ga ines did not imm e diate ly

a dmi t to ra

pin g the vic timor

se e ingthe [ pet it ion e r] r a pe the vic tim

. Z occola also acknow ledg ed that at one point in the interview, Gaines stated that the victim approac hed him about havingsex.

Z occ o la re viewed two le tters written by the victim that were sent to the victim's birth mother, Pame la Crowson. Z occola testified that he rec eived the two le tte rs by fax on Jun e 27 , 2 00 0. He state d tha t he w a s ma de awa re that a c c or din g to

a c ourt or de r, c us tod

y of the vic tim was to b e re tur ne d to Cr ow so n. Z oc c ola

a c kn o w l e d g e d

t h a tt h e v i c t i m r e m a i n s i nt h e p h y s i c a l c u s t o dy o f C ar o l Z u k o ws ki. He testified that the victim was in t er v i ewed reg ardingthe alleg ations she made
ag ainst C ar ol Z ukowski in her letter s. On re- direc t examination, Zocc ola testified that his interview of the victim, dur i n g wh i ch s he fa iled to mention Gaines or the [petit ioner], occur

red w hile the victim was still li ving in the [petitioner]'s home.-10- Chr is Z uk ow sk i te sti fi e d th a t th e [pe tit ion e r] i s h is unc le and that he re fe rs to the [petiti o n er] as “D ad.” H e stated that the victim is hi s sister and that Carol Z ukowski is his aunt. Zukowski testified that he lived with the [petiti oner] and Carol Z uk ow sk i f

or a pp ro xima te ly e ig ht y e ars . H e re po rt e d th a t in Ma y 20 00 he mov e d to Kansa s to live with his m other. Z ukowski testified that he wa s six teen y ear s old and that he wa s attending Winfield High School Diploma Completion Course.

Z uk ow sk i r e c a lle d h e lpi ng J. D. Ga ine s mo ve “ kin d o f o ne and a ha lf ” tim e s. He e x plained that the f

irst t i m e h e h elped, he just threw g arba g e aw ay . Z ukowski testified that the “ha lf” move to w hich he ref err ed occur

red be fore spring or summer br e a k in 19 98 or 19 99 . H e state d th a t he , th e [pe tit ion e r], his a un t, a nd the vic tima ll he lpe d Ga ine s mo ve . Z uk ow sk i te sti fi e d th a t he a lso he lpe d G a ine s mo ve in S e p t e m b e r 1 9 9 9 im me d iate ly

a f te r s c h o o l b e g an

. H e r e c a ll e d th a t h e , th e [p e ti ti o n e r ], the victi m , Zu k o wski’s g irlfriend ( Abig ail Dig anazada y ), Ga ines’s wife and two children a ll helped with the move. He testified that his g irlfriend had since moved back to Iran.

Z ukowski testified that during the move, the victim “pr etty much baby sitted the tw o k ids .” He re po rt e d th a t the y he lpe d mov e a bo ut fi ve or six “ loa ds ” of ite ms to Gaines’s ne w duplex. Zukowski testified that he did not g o to the new house eac h ti me

. H e r e c a ll e d

th a t o no n e tr ip w h ic h o c c u r r e d r ig h t b e f

o r e d u s k
, th e [p e ti ti o n e r ], Gaines, the victim and Zukowski’s girlfr iend went to the new home. He testified that they wer e g one about f

ifteen or t wenty

minutes. Zukow ski reca lled that when the victim returned, she helped do some more packingand h el ped take car e of the children. He repor

ted that the victim wa s happy

. He testified that ever y one we nt on the last “run” to the house.

Z ukowski testified that the victim told him that Phill ip Y oung had rape d her. H o w e v e r , h e t e s t i f

i e d t h a t t h e v i c t i m n e v e r m e n t i o n e d b e i n g r a p e d w h i l e h e l p i n g J. D. Gaine s move. Z ukowski testified t hat he a nd the victim were “pre tty close.” He

r e c a l l e d t h a tw h e nh e an d

t h e v i c t i m l i v e d

t o g e t h e r , t h e y w o u l d

“ qu i t e f r e qu e n t l y” talk about sex. Zukowski believed that his sister would have told him if she had be en rape d. He testif

i ed t h at he ha d not seen the [petitioner] since the [petitioner] had been a rre sted.

Z ukowski testified that when he an d t h e v ictim first went to live with the [petit ioner] and Carol Z ukowski, Carol was kind to the victim. Howeve r, he state d that things c hang ed whe n the family m oved to Nashville. He rec alled that Carol Z ukowski beg an to spank the victim a bout two or three times a wee k, and that Carol Z ukowski would not alway s paddle the vic tim on her bottom. He repor ted that the worst incident occ urre d when Carol Z ukowski cause d the victim to have a dislocate d shoulder, a bloody

lip, a black ey e, and bruises on he r ar ms and leg s. Z ukowski
test if ie d th a t h e s aw Ca

r o l Z u k o w s k i b e a t th e v ic ti m w it h h e r f is ts f o u r times. He-11-

s t a t e d t h a tt h e v i c t i m f

e ar e d t h e b e a t i n g s b y

C ar o l Z u k o w s k i an d

t h a tt h e vic tim

wa nte d to liv e wi th t

he ir re a l mot

he r. Z uk ow sk i te sti fi e d th a t th e vic timwa s e a sil y

manip ulate d b y

pe op le . H e state d th a t w he n Car ol Z uk ow sk i wou ld b e a t th e vic tim
, the vi ct im

w o u ld te ll p e o p le th a t s h e h a d r u nin to a w a ll o r th a t s h e h a d

b e en “roug hhousing.”

On cr oss-examination, Zukowski testified that he left Na shville in May 2000. He state d that he last saw Carol Z ukowski beat the victim a bout f our we eks bef

ore he lef t Nashville. Z ukowski testified that he tried to stop Carol Z ukowski from beatin g t h e v ictim, but a man named John P otts prevented him fr om enteringthe victim’s room. He stated that he g ot in trou b l e fo r t h e beatingbeca use Carol Z ukowski “re arr ang ed” the story . Z ukowski acknow ledg ed that he did not trust J . D. Gaines a nd that Gaines w as “pe rver ted.” He testified that he only helped f or one da y of the mov e

. Ho we ve r, e ve n thou g h he state d th a t he and the [pe tit ion e r] w e re c los e and that he c alled the [petitioner] “dad,” Z ukowski testified that he neve r mentioned
any thing to the [ petitioner] about Gaines. On r e-dire ct examination, Zukow ski testified that the last time he talked to the vi ctim was in Aug ust 2000. He state d that sin c e the n, Ca

ro l Z uk ow sk i ha s n ot a llo we d h im t o ta lk t o th e vic tim

. The victim’s biolog ical mother, Pame la Crowson, testified that the [pe tit i o n e r ] i s h e r

b r o t h e r

. S h e s t a t e d

t h a ts h e s p o k e t o t h e v i c t i m a f t e r t h e v i c t im testified at the [petitioner]’s trial. Crowson rec alled that she, the victim, Christ opher Z ukowski, and Carol Z ukowski walked to se e Crowson’s dog that was in her truck. She testified that s he and the victim were a fe w steps awa y from Carol Z ukowski and Chris Zukow ski when the victim told her, “Carol’s making me say things that a

re not true.” Crowson stated that the victim ha d made simil ar state ments in the past. She testified that the victim also told her that she w anted to g o with Crowson.

On cr oss-examination, Crowson testified that at one time she wa s close to the [petit ioner], but she stated that she was no longe r close to him. She stated that she

c a me to t

he [pe tit ion e r]' s tr ia l be c a us e de fe ns e c ouns e l w ante d her so n, Chr is Z ukowski, to testify . Crowson ac knowledg ed that defe nse counse l wired he r money to c ome to N a sh vil le . Sh e be lie ve d th a t he r s on did no t li ke Car ol Z uk ow sk i. Howeve r, she state d that Chris Zukow ski and Carol Z ukowski walked to he r ca r tog e the r, wh ile sh e a nd the vic tim wa lke d tog e the r. Cr ow so n re po rt e d that the vic tim had been living with Ca

rol Z ukowski and the [petit ioner] f or appr ox imately

four or fi ve y e ars

. She te sti fi e d, “ De te c tiv e Z oc c ola is a lia r. ” She a lso state d th a t th e vic tim told her that she was ly ing. Crowson testified t hat s he ca lled Detec tive Z occola on multipl e occa sions to tell him that Carol Z ukowski was beating the victim. She testified t hat s he had not been in Na shville for five y ear s and that she c ould not affor d to come vis it her childre n. Howeve r, she state d that she wa nted the victim to live with her.-12- On re -direc t examination, C rowson testified tha t t h e Pu b li c D e f e n d e r ’ s Offic e wired he r $ 100.00 to trave l to Nashville for the [petitioner]’s trial. She stated that she sent a “ court pa

per” from Ar izona to C liff B anister at the Depa rtment of Human Service s indicati n g t h at s he had c ustody of the victim. Crowson also testified that she sent money

to her c hildren so they

could visit he r in A rizona. She stated that she had not see n the victim in a y ear and a half beca

use Carol Z ukowski would not let her have any c on ta c t w iththe vic tim

.

I n rebuttal, the victim was called t o testify

. The victim testified that af ter he r orig ina l t e s ti mo n y , s h e s p o k e to Pame la Cr o w s o n

. H o w e v e r , th e v ic ti m d e nied
te lli ngCr ow so n th a t she wa s bei ng fo rc e d to sa y thi ng s th a t w e re no t tr

ue . O n c ro ssexamination, the victim testified that she was g oing home with Carol Z ukowski after the tr ia l.

B. Sente ncing Hea

ring

Detec tive Da vid Z occola testified that he wa s assig ned to this case on Ma y 15, 2000 following an off

ense r eport involving the victim. Acc ording to Z occola , the
repor t was initiated by

two brothers on May 14, 2000. He testified that he could not locate the person that filled out the report, but he was able to locate a witness named Andre w Her

ps who was listed in the re port.

Z oc c ola re po rt e d th a t he c on ta c te d He rp s, and He rp s ha d a c on ve rs a tio n w ith the [petit ioner] that w as rec orded by police. During the conve rsation, the [petitioner]
ag ree d to a llow H erps to br ing three or four other individu al s t o t h e [ petitioner]’s house to eng ag e in sex with t he victim . Z occola testified that during the

conver sation, Her

ps and the [petit ioner] ta lked about how “it” had to be done by four o’cloc k beca

use that wa s when the [petit ioner]’s wife got home. Zoc cola state d that Her ps and the [petitioner] joked about a bet the [ petitioner] made with Her ps that he

w o u l d p ay h i m $ 5

. 0 0 i f

h e c o u l d m a k e t h e v i c t i m h a v e ano r g a s m b e f o r e t h e b o ys did. He testified that during the conve rsation the [petitioner] said that he had to be in the home when the acts oc curr ed.

Z occola testified that after hearing the t aped conver sation betwee n Her ps and the [petiti oner], he re alized that the victim’s living ar rang ements had be come a n

emer g ency

situation and removed the v i ct i m from the home. He re called that the [petit ioner] was taken to the pol ice station that day for a “fa irly leng thy interview.” Z occola testified that the [petitioner] described the vic tim as a car ing, tr usting, loving and truthful child. He repor ted t h at t h e [ petitioner] stated that the victim had an illness when she was y oung and that a f ever relating f rom the illness cause d her to be “ver y slow.” Z occola

testified that he e x plained to the [ petitioner] why he was being questioned and that he g ave the [petit ioner ] ab o u t a five or ten minute explanation of va ri ou s thin g s tha t he be lie ve d tha t the [pe tit ion e r] ha d be e n doin g to t he vic tim

.-13-

Z occola testified that af

ter t h e ex p lanation, the [petitioner] basically said, “I never watche d.”

Acc ording t o Z occola , the [petiti oner] confirme d that Andre w Her ps was bring ing othe r males into the [petit ioner]’s home and that the [petit ioner] w as aw are that the oth e r m a le s w e re c omi ngto t he ho us e to e ng a g e in s e xua l in te rc ours e wi th the victim. Z occola

testified that the [petitioner] confirmed t h at over a two-y ear period, a pproxi mately

twenty -five m en ca m e into the home to have se x with the victim. He stated that the [petiti oner] indicated that the vic tim was eleve n and twelve
y ear s old when the ra

pes occ urre d.

Zo ccola testified that all of the w itnesses stated that the [petitioner] was
prese nt in the home when the se x ual ac ts occurr ed. Z occola testified,

[The petitioner] laid out . . . t his situation where he felt like [the victim] was g oin g to b e se xua lly

a c tiv e . So , k

no wi ngthat he did

n’ t ha ve muc h c on tr ol o ve r t

hat,

acc ording to h im
, h e , b a s ic a ll y , ta lk e d o r d is c u s s e d

w it h [th e v ic ti m]
, lo o k

Iknow
y ou’re g oing to ha

ve sex. I f y ou’re g oing to have se x , we’ ll do it here in the home, wher e I can ba sically
, m o n i t o r thing s. And he . . . be g an to desc ribe that whe n the

se x wou ld g o o n, he wo uld be in t he ne xt ro om or ou t in the de n. I t’ s a rathe r s ma ll house. An d I gu es s the ea siest way to say it is t hat he would supe rvise thing s. He would . . . be able to hear and monitor if things g ot out of hand. And he e ven we nt down a list of things that he would and would not allow. He would not allow any of the men to phy sically

abuse he r. He would not allow any of t he men to hit her. H e would not allow more than one man at a time having se x . He would not allow a ny fore ign obje cts. He would not allow s ever al ot her things, t hat I would have to look

a t th e lis t. B ut h e , b a sic a lly , we nt d ow n, Ig ue ss, the ru le s th a t . . . th e se g uy s w ou ld h a v e to g o b y

w h e nth e y

e n g a g e d w it h s e x.

Z occola testified that the [petit ioner] de nied having sex with the victim. He stated that t he [ petitioner] indicated that there wer e “numerous t imes” t hat as many
as t hree or four g uy s would come to the house w ith the intention of having sex, but the m en w o u ld

h a v e to g o in to th e v ic ti m’ s r o o m s e p ar a te ly to h a v e s e x w it

h the vic tim . Z occol a tes tifie d th a t th e [pe tit ion e r] h a d a bigC.B . r a dio ante nn a

a t hi s house and that the whole fa mily would talk on the ra dio. H e stated that the [petit ioner] met a number of his friends by

talking on the radio. Z occola testified that the [petiti oner]’s family ’s social life r evolved a round people whom they had met on the ra dio. The g roup of men w ith whom the [ peti t i o n er ] as sociated be cause of the

ra dio inc lud e d Joh n Po tts , L arr y Do we ll, and

Jose phCa in, wh o w e re a ll c ha rg e d in this case.

Z oc c ola te sti fi e d th a t a

pp ro xima te ly se ve n juv e nil e s we re a lso c ha rg e d in thi s

case . Z occola

stated that ac cordingto the witnesses he inter viewed, the rape s had-14-

been oc curr ing f

o r o v er two y ear s. He testified that the ty pes of a cts included
pr e do min a te ly oral se x, bu t “ the re wa s a lot of me nti on of int e rc ours e .” Z oc c ola testified that the [petitioner] admit ted that “about the only thing he wouldn’t allow

wa s ana l sex.” He re c a lle d tha t the [pe tit ion e r] sta te d tha t a lot of the se xua l a c tiv ity be g a n to oc c ur

whil e he wa s h ome wi th a n in jur y . Z oc c ola

te sti fi e d th a t th e vic tim

wo uld have be e n e le ve n o r t we lve y e ars old

and po ssi bly e ve n y oung e r w he n th e a c ts

occur red. H e stated that the acts c ontin u ed af ter the inc idents in this case until the time the [petit ioner] was ar rested. O n cross- e x amination, Z occola testified that one of the men, John Pot ts, who was a me mber of the C.B. club, was also Carol Z ukowski’s lover.

Fr ankie Cowa

n, the Clinical Direc tor of the N a s hv il le Child Advoc acy Center in Nashville, testified that she has been the direc tor for f our y ear s. She stated that her responsibi l i ties at the ce nter we re to super vise two clinical ther apists and two fore nsic interviewe rs. Cowan testified that she also eng ag ed in thera py with children and handle d a support and e ducation g roup for p ar en t s of childre n who have been

se xua lly a bu se d. She state d that sh e ha d be e n wo rk ing wi th v ic tim s o f c hil d a bu se for a p p r o xim a te ly e igh t y e ar s an d th a t s h e h a d b e e n w o r k in g in th e f

ie ld o f mental he a lthfo r t

we nty y e ars . Co wa

n te sti fi e d th a t du

ri ng he r c are e r, sh e ha d w or ke d w ith

a bo ut f our o r f ive hund re d c hil dr e n. She te sti fi e d th a t sh e ha d a ma ste r’ s de g re e in
psy cholog y

.

Cowan testified that she counse led the victim eig ht times beg inning in May 2000 until the victim relocated to a nother c ity

with her a

u n t . She repor

ted that the vic ti m e xh ib it e d

s y mp to ms o f

p o s t- tr a u mati c s tr e s s d is o r d e r

. Co w ante s ti f ie d th at the victim was suffe ring from nightmare s and had “a lot of g ener alized fea rs,” suc h as the loss of a f

amily member. A ccor ding to Cowa n, the victim was also fe arf ul ab o u t ta lk in g a

b o u t th e a b u s e b e c a u s e s h e th o u g h t it w a s h e r f a u lt

. Sh e s tated that the vic timdid

no t kn owwh o to tr

us t and that the vic tim “ " ha d, ba sic a lly , n o f a mil y support.” Cowan testified that the victim ha d not se en her natura l mother in four
y ear s and had be en entr

usted to the uncle w ho rape d h er

. Cowan testified that the

v i c t i m n e e d e d

l o v e an d a f f e c t i o n , b u t c o n f

u s e d th e s e e m o t i o n s w i t h s e x u a l a c t i v i t y. She stated that the victim had ve ry poor j udg ment reg ardingwhom to trust and how to deal with other pe ople. Cowan testified that these traits ar e ofte n seen in children who exhibit the worst long -lasting eff ects of s ex u al ab u se. She explained that the abuse w as ver

y confusing t o t h e v ictim especia lly beca use it was done by

her

car eg iver.

Cow an o pin e d th a t w he n th e pe rp e tr a tor of se xua l a bu se up on a c hil d is a lso the c hil d’ s c are g ive r, the re su lti ngbe tr a y a l of a “ tr us tin g re la tio ns hip ” be tw e e n c hil d and ca reg iver be comes an overr iding fac tor in de termining whether a child is “g oing
to b e p e r ma n e n tl y a f f e c te d

. ” Sh e f

u rth e r te s ti f

ie d th a t th e b e tr ay a l b y

th e [p e ti ti o n e r ],

co u p le d w it h th e la c k o f f

a mi ly s u p p o rt, le f t th e v ic ti m “ a s itti n g d

u c k f o r future-15-

vic tim iza tio n o f ev e ry ty

pe .” Cow an sta te d tha t adu lt s ur viv or s o f c hil d s e xua l a

bu se often c onfuse a ffe ction and love with sexual activity an d thus do not have g ood judgme nt in choosing pa rtners. She te stified that this was “one of the worst ca ses [she had] ever see n, as fa

r as pr edicting what [the victim’s] . . . future w ould be, as far as havinghealthy

relationships wit h other pe ople.” Cowan stated that she did not expect the victim to lead a r easona ble, normal life a fter the abuse.

On cr oss-examination, C o wa n t est ified that she ha d rec eived tra ining on
pe rp e tr a tor s and

had cou ns ele d p e rp e tr a tor s in the pa st. She state d th a t f re qu e ntl y perpe trators a

re the victims of ab u s e. C owan testified that when she me t with the victim, the victim’s family consisted mainly of her aunt and that they wer e moving residenc es. S he reported that she di d not have any contac t with the victim since May or June 2000. However , Cowan stated that she was infor med that the victim had bee n in a psy chiatric hospital.

Dr

. J o an S l i ger t es t i fi ed t h at s h e h ada d o ct o ra t e d egr ee i ncl i n i ca l p s y ch o l o gy from Va nderbilt University

and that she ha d been pr acticingpsy cholog y since 1975. Sliger repor ted that she worke d for a

couple of y ear s at the Middle Tenne ssee Me ntal Hea lth I nstitut e af

ter she obta ined her

master’ s deg ree but before s h e had obtained he r d oc tor a te de g re e . Sh e te sti fi e d th a t du ri ngthat ti me , s he per fo rm e d f or e ns ic
ps y c ho log ic a l e xami natio ns . Sl ig e r r e po rt e d that sh e re tur ne d to pe rf

or min g fo re ns ic evaluations about s ix or seven y ear s prior to the trial in this case. She te stified that her pr imary

vocation is psy chother apy

. Sliger testified that she intervie wed a nd tested t he [petitioner] for about five

an d a h a l f h o u r s o no n e d ay. S l i g e r t e s t i f i e d t h a t t h e [ p e t i t i o n e r ] h a d s o m e “ h i s t o r y” that was ve ry difficult for him to talk about. She stated t hat the [petitioner] i ndicated that when he was y oung , he and his brothe r had been se x ually molested for a

period of about two y ear s by

a man who w as a f

riend of his pa

rents. Ac cordingto Sli g er, the abuse bega n when the [ petitioner] was approximately eig ht y ear s old. She testified t h at t he [petitioner] said that the police interviewe d him and his brother about the abuse. Sliger repor ted t hat foll owing the incident, the [petitioner]’s mother “cr ied a lot” and the [petit ioner]’s fathe r possibly develope d a drugdepende nce. She
state d th a t she tho ug ht that the [pe tit ion e r]’ s per pe tr a tor ha d mo le ste d a

pp ro xima te ly
tw e nty -t wo vic tim s.
Slig e r t e sti fi e d th a t in

c a se s o f c hil d s e xua l a

bu se , “ it is mo st i mpo rt ant t o pr ov ide c ouns e lin g to t

he vic tim s. ” She state d that the [pe tit ion e r]’ s f a the r d e a lt w ith the ra pes of his sons by

prete nding that it never ha ppened. S l i ger t estified that the [pe tit ion e r] i nf

or me d h e r t hat the vic tim ’s mot

he r, the [pe tit ion e r]’ s si ste r, wa s a lso

a vic t i m o f r a

p e

. S h e s t a t e d t h a t a f

t e r h i s s i s t e r ’ s r a

p e , t h e [p e t i t i o n e r ] d i r e c t e d h is

ang e r a t hi s si ste r’ s r a

pis t. S lig e r te sti fi e d that the [pe tit ion e r]’ s ra pe c a us e d h im t o believe that no one had any control over their own body . She stated that whe n she-16-

int e rv ie we d h im, the [pe tit ion e r] h a d n e ve r a c tua lly ta lke d to any on e a

bo ut h is

c hil dh oo d r a

pe s, and sh e e xpla ine d that it wo uld the re fo re be “ ha rd to k no w h ow[his victimiz ation and his treatment of the victim] re l at ed

. S he stated, how ever , that “statistically , y ou look for those thing s in a perpe trator.”

Sliger testified that the [petit ioner] w as g iven a test called the MMPI which did not indicate that the [petitioner] had any sort of psy chosis. She stated that the [petit ioner] was brig ht, that he appe are d to have “ g ood sense,” and that he wa s not “cr azy .” Slige r testified that she w as “puzz l ed ” by the re sults of the [petit ioner]’s “par anoid sca le.” She r eporte d that the [petiti oner] score d exceptionally low, which indicated that he did not have any “suspiciousness” in him. Sliger testified that the abuse that the [petit ioner] suffer ed as a child likely play ed som e part in his abuse of the vic tim

.

On cross-e x amination, Sliger acknow ledg ed that she spoke to the [petitioner]

on on ly on e oc c a sio n f

or a bo ut f ive and a ha lf ho ur s. She state d th a t sh e ob ta ine d a ll of he r inf or ma tio n co nc e rn ing the [pe tit ion e r] fr om t he [pe tit ion e r] d

ur ingthat ti me and from documentation provide d to her by defe nse counse l. She acknowle dg ed that the abuse of the [petitioner] as a child did not ex cuse the [petit ioner]’s behavior . She also stated that adults should be held a ccounta ble for the ir beha

vior.

State v. Wil liam Doug las Z ukowski, No. M 2 0 0 1 -02184-CCA-R3-CD, 2003 Te nn. Crim. App. L EXI S 62, at **2-38 (Te nn. Crim. App. J an. 31, 2003).

Duri ngthe po st- c on vic tio n h e ari ng , th e pe tit ion e r t e sti fi e d tha t he be lie ve d co un se l f a ile d to adequately

investigate hi s case prior to trial. He said that there wer e medica l rec ords that could show that he wa s unable to drive at the time of the incident due to a broke n left leg . Eleven hundr ed and seventy -eig ht pounds of steel tube ha d fallen on his leg , rende ri ng him incapable of walking for eig hteen months. He sa id he told counsel t h at he wa s bedridden dur ing the time the crime w as

a lle g e d, bu t c ouns e l di d n ot i nv e sti g a te . H e sa id h e tol d c ouns e l a bo ut o the r w itn e sse s th a t w ou ld have be en helpf

ul a t tr ial, but the y wer e not c ontacted. Spec ifically , he mentioned his ex-wife a nd his br oth e r a s p os sib le wi tne sse s, bu t c ouns e l a lw ay s to ld h im h e ha d n ot s po ke n to the m y e t.

The pe titioner testified that he wanted an expert to examine the victim to determine whethe r she wa s competent to te stify
, but, to his know ledg e, no attempt was made by counsel to examine her. He a g ree d that he ente red a plea barg ain on other c harg es af ter he was c onvicted following trial. He asked the court to vac ate the ple a so that he c ould proce ed to trial. He said the outcome of the trial aff ecte d his decision to plead on the other counts, and he believe d he wa s making a best intere st plea. He sa id h e wa s und e r t

he imp re ssi on

that a be st inte re st ple a did no t hav e the le g a l ef fe c t of a g uil ty plea. He said he wa s not rational, was in a sever e state of

depre ssion when he entere d the plea, a nd did no t f ull y un de rs tand

wh a t he wa s d oin g . H e sa id t hat he suffer e d f

ro m Po st T ra

umatic Str e ss Disorder from his milit ary

service and that it aff

ecte d his judgment. He said that he wa s rec eiving
treatment while in prison, that he was in a better me ntal state now, a nd that he would not have-17-

enter ed the guilty

plea. He said he wa s innocent and w ould not have done an y t h i n g t o h ar m the victim.

On cr oss-examination, the petitioner testified that he r eca lled tell i n g the detec tive that he assi sted the victim in eng ag ing in se x ual ac tivity with multi ple individuals prior to May of 2000. He sa id that he was ultim at el y re s p o n s i ble for not pa y ing attention to what was g oing on. H e acknow ledg ed that he knew his c onfession would be broug ht up at trial. He a cknowledg ed that he assisted Gaine s in moving on two occ asions. He sa id his counsel did produce testimony at trial that the petitioner was never alone with the victim a nd Gaines during the move. Tria l counsel had the vic tim ’s br oth e r tr ans po rt e d fr om Ar izon a to Te nn e sse e to t e sti fy a s a n a lib i w itn e ss o n h is b e ha lf at trial, but the jury

did not credit the testimony of the witness. The pet i t i o n er d i d n o t tell the de te c tiv e tha

t he wa s in

jur e d at th e tim e and di d not ha ve the op po rt

un ity to c omm it the of

fe ns e s. He tol d th e de te c tiv e that th e vic timwa s a tr uth fu l and

c omp e te nt i nd ivi du a l.

On re -direc t examination, the petit ioner said there wer e other witnesses that could have been called to testify

on his behalf. He said that he spoke with the detec tive fre ely and voluntarily and that he drove himself to the police station. He sa id the detec tive never asked him about the eve nts that

occur red dur ing the move. Counsel told the petitioner that he c ould testify but that it would not be

a g oo d id e a

be c a us e his te sti mony

wo uld op e n th e do or

fo r o the r t

hin g s th a t ha d noth ing to d o w ith this trial. The petitioner said that he should have testified be cause he could have cle are d up a fe w misconceptions. At the conc lusion of his testim ony , the petitioner re sted his proof.

Th e State c a lle d tr ia l c ouns e l, wh o te sti fi e d that he ha d be e n a pu bli c de fe nd e r f

ro m th e tim e he pa sse d t he bar th ro ug h th e un de rl y ingc a se . Wh e n th e c a se wa s tr ie d, he ha d b e e n a pu bli c defe nder f

o r s ix o r s e v e ny e ar s

. H e s a id

th e p e ti ti o n e r

w a s th e s u

b je c t o f a th ir ty

- e ig h t c o u nt indictment that encompasse d a var iety of sexual activities alleg ed to occ u r o v er a broa d spectrum of time. Some of the counts of the indictment wer e seve red, a nd the counts involving the case that

we nt to tr ia l inv olv e d a lle g a tio ns that, on a pa rt ic ula r da y , the pe tit ion e r and Mr

. Ga ine s e ng a g e d in

a va ri e ty of se xua l a c tiv iti e s w iththe vic tim . Co un sel tes ti fi ed th a t th e pa rt ic ula r i nc ide nt w a s a single , discree t incident that occur red on one day , as opposed t o s o m e of the other counts in the indictment. This crime occ urre d on a spec ific day at a spe cific loc ation.

Couns e l me t w iththe pe tit ion e r p ri or to t ri a l, a nd they di sc us se d a

mul ti- po int

de fe ns e strateg y

. First, they had to show that the victim wa s not competent as a witness or that her

memory

wa s so ba d th a t no on e sh ou ld t a ke he r s e ri ou sly . Se c on d, the y ha d to sh owtha

t Mr . G a ine s w a s a repr ehensible person and should not be taken seriously

. Counsel sa id those two things ha d to happen fo r t he m to have muc h o f a

c ha nc e a t pr e va ili ng . Co un se l a lso sa id the y ha d the vic tim ’s br oth e r t o testify that he wa s prese nt at the time of the a lleg ed eve nts and that he did not see any thing ha ppen. Counsel said he did not rec all discussing a ny injuries with the petitioner in relation to thi s trial.

Couns e l r e c a lle d th a t th e vic timwa s v igorou sly imp e a c he d b e c a

us e sh e wa s una

ble to

rec ollect much of a

ny thing. He said it was established that the vic tim wa s mentally reta rded a nd had difficulty reme mbering things. The victim’s brother testified that, on the day in question, there wa s-18-

no t su ff ic ie nt t ime fo r the pa

rt ic ula r inc ide nts to have take n pla c e

. Af te r the c on c lus ion

of the tr ia l, counsel did not g ive the petitioner any advice on the rema ining char g es ag ainst him. Counsel filed a motion for new

trial and a

motion for judgme nt of acquittal afte r the trial. Be cause counsel took a sabbatical from the public defe nder’ s office
, a differe nt public defe nder w as assig ned to re prese nt the petitioner for

his remaining char g es.

On cross-e x amination, counsel said they tried the c ase a s though the crimes ha ppened on one day . He sa id it was possible that they happene d on multipl e day s but, “in the rea lm of the

c ourt ro om, ” it w a s p re se nte d a s th ou g h it a ll ha pp e ne d on one da

y . H e sa id t

his a pp ro a c h ma de it

was e asier for him to defe nd beca use t hey had a witness, the victim’s brother, w ho testified that the

o ff en s es co u ld not have occ urre d on that day . Counsel rec alled that it was possible the pe titioner opined that he wa s unable to per form a se x act at the t i m e, but counsel did not have a n expert examine the petitioner to deter mine if he could perfor

m a sex act. The pe titioner never told counsel that he did not participate in the move of Mr. Gaines. The pe titioner acknow ledg ed that he he lped Mr. Gaine s move but de nied that he had sex with the victim. Counsel did not recall any other a libi
sug g estions made by

the petitioner. He did not reca ll the petitioner g iving him any info rm at i on

wo rt hy of inv e sti g a tio n. He did

no t r e c a ll c on ta c tin g Mr . G a ine s’ land lor d or any of his ne ig hb or s. Counsel did not consider ca lling the pe titioner’s ex-wife be cause she was incre dibly hostile toward the petitioner at that point.

Next, the St ate called the c ounsel who re prese nted the petitioner f or the e ntry

of his four
g uil ty ple a s. She te sti fi e d th a t sh e ha d b e e n a pu bli c de fe nd e r f

or nin e y e ars and

that sh e be g a n to

r e p r e s e n t th e p e ti ti o n e r d u r in g tr ia l c o u n s e l’ s s a

b b a ti c a l. Pl e a c o u n s e l te s ti f ie d th a t s he wa s not involved i n t h e p et i t ioner’s tria l. She was aw are that the petitioner ha d made incr iminating statements to the detec tive with reg ard to the sexual a ctivity of the victim. She was furthe r aw are

o f s t at em en t s fr o m ch ar gedan d u n ch ar gedco -d ef

en d an t s i mp l i ca t i n g t h e p et i t i o n er as p ar t i ci p at i n g, fac ilitating, and se tting up sexual activity with the vi ctim. The pe titioner had bee n sentenc ed to 125
y ear s when she w as assig ned to re prese nt him. The petitioner seem ed agr eeable to settle the

rema ining c ounts ag ainst him g iven t he ti me he had alr eady rec eived. The y

rea ched a

n ag ree ment with the State for an additional twenty -five- y ear sentenc e, to be served concurre ntly with his ex isting
sentenc e. T h e y

d is c u s s e d

th e r e ma in in g c o u n ts an d th e p o s s ib le s e n te n c e s o ne a c h c o u n t. She be lie ve d th e tw e nty -f

ive y e ars , c on c ur

re nt t o th e tim e he wa s a lready ser vi ng , w a s a fa vo ra ble resolution to the rema ining c harg es. She neve r consider ed that his plea w as any t h ing othe r than knowing and voluntary

. Plea counse l would not have broug ht the petitioner to court to plea d if she d i d n o tb e l i e v e h e w a s d o i n g s o v o l u n t ar i l y.

Plea counse l testified that it was likely the conviction and subse quent 125-y ear sentenc e wa s

a fa c tor in h is d e c isi on

to p le a d. She sa id t

hat, h a d th e pe tit ion e r be e n ac qu itt e d at tri a l, h e pr ob a bly would not have e ntere d his plea to twenty -five y ear s, concur rent. Plea c ounsel said that the petitioner neve r expressed any dissatisfaction with he r repr esentation and said it was not her pr actice to discuss other counse l’s repr esentat i o n wi t h clients. She said she tells them that, if they are unhappy with their repr esentation, there is another reme dy for that dissatis fac tion, eventually . Plea counsel did not have any

conce rns about the pe titioner’s compete ncy to enter his plea

.-19-

On cr oss-examination, plea counsel r eiterated that she doe s not d i s cuss a c lient’s dissatisfaction with prior counse l. She d i d n ot rec all whether the petitioner e x presse d a lac k of satisfac tion with the public defe nder’ s office

. She said she did not see any thing that led he r to believe the petitioner wa s suffer ing f rom any mental illness or disorder.

An a ly sis

Th e pe tit ion e r a

rgue s th a t he re c e ive d in e ff e c tiv e a ssi sta

nc e of c ouns e l and

sp e c if ic a lly

c on te nd s th a t c ouns e l w a s in e ff e c tiv e fo r fa ili ng to inv e sti g a te (1 ) his me dic a l re c or ds wh ic h w ou ld de mon str a te that he wa s una ble to p e rf

or m th e a lle g e d a c ts; and

(2 ) t he pr op os e d a lib i w itn e sse s. The pe titioner also argues that the post-c onviction court er red in re ly ing on tr ial counsel’s te stimony beca use he sa id he did not remembe r multiple things.

This c ourt revie ws a claim of ineffe ctive assistance of counsel under the standards of Ba x ter

v. Ro se, 52 3 S. W.2 d 9 30 (T e nn . 1 97 5) , a nd Str ic kla nd v. Was hin g ton , 4 66 U. S. 6 68 , 1 04 S. Ct

. 2052, 8 0 L

. E d

. 2 d

6 7 4 ( 1 9 8 4 )

. T h e p e ti ti o n e r h a s th e b u r d e nto p r o v e th a t ( 1 ) th e a tt o r ney ’s perf ormanc e wa s deficie nt, and (2) the defic ient perf ormanc e re sulted in prejudice to the pe titioner

so as t o deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct . at 2064; Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996) ; Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990) . The fa ilure to p ro ve e ith e r de fi c ie nc y or pr e jud ic e jus tif

ie s den ia l of re lie f; the re fo re , the c ourt ne e d n ot a dd

re ss the components in any

particula r orde r or e ven addr ess both if one is insufficie nt. Goad, 938 S.W .2d

a t 37 0. I n o rd e r to es ta

bli sh pr e jud ic e , th e pe tit ion e r m

us t e sta bli sha “ re a so na ble pr ob a bil ity that, but for counse l’s unprofe ssional error s, the result of the procee ding w ould have be en diffe rent. A

rea so n ab l e p robabili ty

is a probability

sufficie nt to undermine conf idence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

The test in Tenne ssee to dete rmine if counse l provided ef fec tive assistance is whether his or he r p e rf or manc e wa s w ithinthe ra ng e of c omp e te nc e de mand e d o f atto rn e y s in c ri min a l c a se s. Bax ter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s c onduct falls within the wide ra

ng e of a cce ptable prof

essional assistance . Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; State v. Honeycutt, 54 S.W .3d 762, 769 (Tenn. 2001). There fore , in order to pr ove a def iciency , a petitioner must s how “that c ounsel’s ac ts or omissions wer e so ser ious as to fall below an objec tive standard of rea sonablene ss under prevailing profe ssional norms.” Goad, 938 S.W.2d at 369 (c iting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

I n re vie wi ng c ouns e l’ s c on du c t, a “ fa ir a sse ssm e nt

. . . re qu ir e s th a t e ve ry e ff or t be ma de to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of c ounsel’s cha lleng ed conduct, a

nd to evaluate the conduc t from counse l’s perspe ctive at the time.” Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fac t that

a pa rt ic ula r s tr a te g y or ta c tic fa ile d o r h

ur t th e de fe ns e do e s n ot, sta nd inga lon e , e sta

bli sh

unrea sonable re prese ntation. H oweve r, def ere nce to matter s of strateg y and tac tical choice s applies only if the choic es ar e informed ones based upon adequate prepa ration. Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997) ; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).-20-

Th e pe tit ion e r c on te nd s th a t c ouns e l f a ile d to inv e sti g a te c e rt a in m e dic a l r e c or ds that c ou ld have sh ow n his ina

bil ity to c omm it the un de rl y ingc ri me s b e c a us e of an in jur y he su sta ine d to his left leg . He a

rg ues that this leg injury would have r aised a rea sonable doubt to the jury that he wa s

un a ble to c omm it the se a c ts. Ho we ve r, the pe tit ion e r ha s not de mon str a te d how thi s e vid e nc e wo uld have unde rmined conf

idence in the outcome of the case . Trial counse l testified t hat the petitioner did not assert his injury

as a de fense to t h e ch ar ges wh i le counse l was pre paringfor tria l. The petitioner has not prove d that the counse l’s perf ormanc e wa s deficie nt o r t h at the counse l’s perf ormanc e re s u l ted in prejudice so as to deprive him of a fa ir trial. He ha s not provided any medical r ecor ds on appea l and presented none during the pos t-conviction hearing

. We conclude that the petitioner ha s not met his burden of proof and, ther efor e, is not entitled to relief on this issue.

Next, the petit ioner arg ues t hat t rial counse l failed to conta ct ce rtain witnesses he contends would have be en bene ficial to his cause at trial. “When a petitioner contends that trial counsel f ailed to discover, inte rv i ew , o r p rese nt witnesses in support of his defe nse, these w itnesses should be
prese nted by the petitioner at the evidentiar y hear ing.” Bla ck v. State, 794 S.W.2d 752, 757 (Tenn. Cr im. Ap p. 1 9 9 0 ) ; s e e a l s o S c o t t v

. S t a t e , 9 3 6 S

. W

. 2 d 2 7 1
, 2 7 3 ( T e n n

. C r i m

. A p p

. 1 9 9 6 )

. As a g ener al rule, this is the only way the petitioner c an esta blish that (1) a mate rial witness existed who

c ou ld have be e n dis c ov e re d but fo r c ouns e l’ s ne g lig e nt inv e sti g a tio n of the c a se ; (2 ) a kn ow n w itn e ss was not i nterview ed; (3) the failure t o discover or interview the witness cause d him prejudice; or ( 4) the fa ilure to prese nt a known witness re sulted in the denial of c ritical ev i d en ce w hich ca used the
pe tit ion e r p re

jud ic e . B la c k, 79 4 S.W.2 d at 757

. Ne ith e r the tr ia l court no r thi s cou rt c an s pe c ulate

o n w h at a w i t n e s s ’ s t e s t i m o n y m i g h th a v e b e e ni f

i n t r o d u c e d b y c o u n s e l

. Id

. The pe titioner failed to call any of these proposed witnesses during the post-conviction hear ing a nd has fa iled to show any
pr e jud ic e . T his iss ue is a lso wi tho ut m e ri t.

I n his last iss u e, t h e p etitioner conte nds the post-conviction cour t erre d by relying on tr ial

c o u n s e l’ s “ w e a k ” te s ti mo n y

. I t is th e f u n c ti o n o f th e p o s t- c o n v ic ti o n c o u rt to d e te rmine the

cre dibilit y

of witnesses a

nd the weig ht and value of their testimonies broug ht forth in an evide ntiary hear in g

. Se e H e n le y , 9 6 0 S. W. 2 d a t 5 7 9

. H e r e , th e p o s t- c o n v ic ti o n c o u rt f o u n d th e te stimony

of trial counsel to be c redible a nd conclude d that his r epre sentation was e ffe ctive. The petitioner has fa ile d to de mon str a

te t hat th e evi den ce pr epo nd erat es agai ns t t he fi nd in g of t he p os t- con vi cti on c ou rt

. There fore , he is entitled to no relief on this iss ue.

Conclusion

B a se d o n th e fo re g oin g and the reco rd

a s a wh ole , w e a ff

ir m th e jud g me nt f

ro m th e po stc on vic tio n c ourt

.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE