IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 25, 2011 Session

DONALD L. SEIBER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 89978 Bob R. McGee, Judge

No. E2010-00285-CCA-R3-PC - Filed April 19, 2011

The petitioner, Donald L. Seiber, appeals the denial of his petition for post-conviction relief,

arguing that the case should be remanded because the post-conviction court failed to make

adequate factual findings and that the post-conviction court erred by denying post-conviction

relief. Because the record supports the denial of post-conviction relief, we affirm the

judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOSEPH M.

TIPTON, P.J., and NORMA MCGEE OGLE, J., joined.

Gerald Gulley, Knoxville, Tennessee, for the appellant, Donald L. Seiber.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Phillip Morton, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

In 2004, a Knox County Criminal Court jury convicted the petitioner of

aggravated kidnapping, aggravated assault, and two counts of sexual battery, and the trial

court imposed a total effective sentence of 16 years’ incarceration. On direct appeal, this

court affirmed the petitioner’s convictions but remanded the case for resentencing. See State

v. Donald Luke Seiber, No. E2004-01794-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App.,

Knoxville, Oct. 25, 2005) (Seiber I).

During the petitioner’s trial, the victim, Greta Goswick Miller, who lived with
the petitioner in 2001, testified that on June 2, 2001, the petitioner refused to let her leave his

home and that he hit her “with his fists and the gun, threw her on the floor, kicked her,

dragged her by her hair, and stomped on her back.” Seiber I, slip op. at 1-2. The petitioner,

who was drinking rum, “put the gun to the victim’s head and forced her to drink half of a big

bottle of rum in a short amount of time.” Id., slip op. at 2. The victim claimed that her drug

dealer, a man named Lou, witnessed part of the incident and asked the petitioner to stop but

“became scared and left the house.” Id. On the following morning, the petitioner became

“more volatile” after his son asked why he had hurt the victim. Id. The petitioner, who

remained in possession of the gun, ordered his son to leave and “pushed the victim up against

a wall, placed the gun on top of her head, and fired a bullet into the wall right behind her

head,” rupturing the victim’s eardrum. Id.

After his son left, “the [petitioner] came into the kitchen and began to lightly

slash the victim’s face and neck with a steak knife. The [petitioner] then ordered the victim

to go into the bathroom, undress, and shave her pubic area.” Id. “After the victim completed

her task, the [petitioner] instructed the victim to sit on the commode while he cut her hair

very short with a pair of kitchen scissors.” Id. The petitioner then ordered the victim “to

place one leg on the sink and the other leg on the edge of the bathtub” and placed “the steak

knife in the victim’s mouth with the tip pointed toward the back of her throat and made her

hold it, warning her that if she dropped the knife he would shove it through her neck.” Id.

“The [petitioner], who was wearing heavy work boots, savagely kicked the victim repeatedly

between her legs. The victim testified that it was difficult for her to hold onto the knife

during the kicking because the abuse was painful.” Id., slip op. at 3. The petitioner then

“took the knife from her mouth and inserted the full length of the blade into her genital

opening, twisting the knife back and forth. . . . The [petitioner] alternated between inserting

the knife inside her and kicking her while telling her that he was going to kill her and her

family.” Id., slip op. at 3.

Following the assault in the bathroom, the petitioner ordered the victim into

the livingroom “where he made her sit naked on some broken glass on the floor while she

held the knife in her mouth lengthwise.” Id., slip op. at 3. The victim was able to escape

after the petitioner passed out in a chair. The victim ran from the residence and finally

collapsed in the yard of the home of Knoxville Police Department Officer Matthew Cook.

Id. She told Officer Cook about the assault, and he called an ambulance.

Upon remand, the trial court again imposed a total effective sentence of 16

years’ incarceration, but this court modified the sentence to 15 years based upon the holdings

in Blakely v. Washington, 542 U.S. 296 (2004), and its progeny. See State v. Donald Luke

Seiber, No. E2006-00816-CCA-R3-CD,slip op. at 8-11. (Tenn. Crim. App., Knoxville,June

7, 2007) (Seiber II). Our supreme court denied the petitioner’s application for permission

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to appeal on September 17, 2007, see State v. Donald Luke Seiber, No. E2006-00816-

SC-R11-CD (Tenn. Sept. 17, 2007), and the petitioner filed a timely petition for postconviction relief on September 11, 2008, alleging that he had been denied the effective

assistance of counsel at trial.

At the evidentiary hearing, which was conducted in two parts to allow the

petitioner more time for the presentation of argument, trial counsel testified that he was

appointed to represent the petitioner approximately three months prior to the trial in his case.

He stated that he replaced the petitioner’s previous counsel, who had been removed from the

case because of a conflict of interest. Counsel testified that because the petitioner’s was his

first major criminal trial, he enlisted the assistance of a more experienced attorney with

whom he shared office space. He testified that his co-counsel helped him with trial

preparation and handled the cross-examination of the victim at trial. Counsel said that he felt

he handled the case “fairly well” because although the petitioner was originally charged with

two counts of aggravated rape, especially aggravated kidnapping, and aggravated assault, he

was convicted of the lesser included offenses of sexual battery and aggravated kidnapping

along with the charged offense of aggravated assault.

Trial counsel described the victim’s testimony as “99 percent of the State’s

case” and said that his strategy was to discredit her testimony that the petitioner held her

hostage for the better part of two days by attempting to show that she was seen at places other

than the petitioner’s residence during that time. He said that the trial court would not permit

the defense to present some of that evidence, including a letter written by the victim, but that

he was able to present some, including proof that the victim had sought medical treatment

on June 2, 2001, unrelated to any injuries she allegedly sustained at the hands of the

petitioner. He said that the trial court excluded proof regarding a money order picked up by

the petitioner during the time the victim claimed to be held captive because counsel could not

properly authenticate the documents. Counsel stated that he could not remember if he had

requested a continuance to give him time to obtain proper documentation, but he said that it

was his recollection that the trial court “was not happy [the petitioner] had fled the

jurisdiction for a year, 18 months, whatever it was, and was not going to listen to any excuses

why we needed a continuance or more time, or any expert, or anything, period.”

Counsel stated that his “entire case” revolved around attacking the victim’s

veracity and that, to that end, he attempted to impeach her testimony with a letter she had

written to her father during the time she claimed the petitioner held her hostage and attacked

her. In addition to the letter, counsel procured the victim’s medical records from a nearby

clinic establishing that she had visited the facility during the time of the alleged attack.

Counsel said that he did not provide any of the evidence to the State in the form of reciprocal

discovery because it was the defense “strategy to ambush her with it based on her testimony”

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at trial. Counsel said that both he and co-counsel tried on several occasions to get the letter

admitted into evidence, but the trial court denied them “every time [they] raised it.” Counsel

added that at one point, the trial judge “lost his temper” and threatened the attorneys with

“contempt because [they] kept trying to argue to get that letter in.”

Counsel stated that he was able to impeach the victim’s testimony that the

petitioner had inserted the knife into her vagina several times via the testimony of the treating

gynecologist, who said that there was no physical evidence to corroborate the victim’s

version of events. Counsel said, “[C]learly the jury believed the treating physician, that there

was no knife inserted in her vagina, because they came down from aggravated rape to sexual

battery.”

Counsel testified that although he could not specifically recall his pretrial

discussions with the petitioner regarding whether the petitioner would testify at trial, he did

recall that he did not believe that the petitioner should testify. Counsel explained, “I

remember at the time my concern with him testifying was . . . his previous statement to the

police, whether he could hold up on cross examination from the State, and quite frankly,

whether he could hold his temper.” Counsel said the petitioner “had some anger

management issues” that caused counsel to fear that the petitioner “would lose his temper

and help prove the State’s case.” He said that he was “pretty sure” he had talked to the

petitioner about his decision to take the stand “during the trial, and he decided not to testify.”

Counsel said that the trial court did not follow the requirements of Momon v. State, 18

S.W.3d 152 (Tenn. 1999), and that he did not correct the trial court on its omission. Counsel

explained his reticence, “[A]t that point in the trial we had been beaten down so much by

Judge Jenkins, you know, we’d already almost been held in contempt for bringing up the

letter. . . . I probably should have forced Judge Jenkins for the record to do a little bit more,

but I didn’t.” Counsel added, however, that he advised the petitioner that the decision

whether to testify must be made by the petitioner and that “at the end it was his decision, and

he chose not to.”

During cross-examination by the State, trial counsel testified that he had

“burned through” the allotted 75 hours for which he could seek compensation even before

the trial started. He explained, “I turned in my fee claim before everything was done because

I knew I wasn’t going to get paid any more, and just kept working past that.” He added that

co-counsel volunteered his services and that he paid co-counsel $500 of his own money “just

to say thank you.” Counsel said that co-counsel, who handled the cross-examination of the

victim, got the victim to admit that she had lied to the police on several occasions and that

she had used drugs during the time of the alleged attack. He also got her to admit that she

had inflated many of her claims about the attack. Co-counsel also discredited her claims of

injury by establishing that there was “little or no blood in that apartment period.” In addition,

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counsel established that the victim had escaped from jailshortly before the alleged attack and

had stolen her father’s car.

Counsel said that the petitioner’s son’s testimony easily established the

convictions of aggravated assault and aggravated kidnapping. He said that he believed the

jury returned a verdict of guilty of sexual battery based largely on the photographs of the

injuries to the victim’s vagina. He explained, “I think what the jury did was they discounted

her statement, everything about Saturday . . . [and] found him guilty of putting his hand on

her,shooting the gun at the ceiling, keeping her from leaving, and whatever trauma happened

after [the petitioner’s] son left.” Counsel admitted that even if the jury did not believe the

victim’s testimony that the ordeal lasted from Saturday morning until Sunday evening, there

was sufficient evidence that she suffered some trauma on Sunday after the petitioner’s son

left.

Counsel stated that he discussed with the petitioner the petitioner’s right to

testify at trial but admitted that he did not want the petitioner to testify because he feared that

“if [the petitioner] lost his temper on cross examination . . . the jury would believe he was the

type of individual who could do something like this.” Counsel said that he was also afraid

that the petitioner’s testifying would damage the image they had tried to create of the

petitioner as a “small old man, that . . . couldn’t possibly” have committed the crimes against

the victim. He said that, ultimately, it was the petitioner’s decision not to testify: “I certainly

gave him my opinion that I didn’t think it was a good idea, but it was up to him.”

The petitioner testified that he was “never really happy” with trial counsel

because trial counsel “had a really bad habit of not doing his homework.” He said that trial

counsel advised him not to testify at trial, saying, “[Y]ou may get more time if you testify.”

The petitioner claimed that he wanted to testify but did not because trial counsel’s advice

concerned him. The petitioner said he would have told the jury that he did not hold the

victim hostage on Saturday and that he actually left the residence to go to Kroger’s to pick

up a Western Union check the victim’s father had sent to help him care for the victim. He

said the victim stayed home because she had sustained injuries to her vagina falling from a

bunk bed at the jail. He said he used the money to buy crack cocaine for the victim, who then

stayed up for several hours writing a thank you letter to her father extolling the petitioner’s

many virtues. The petitioner said that he later left the residence to purchase liquor for the

1

The letter, which was exhibited to the petitioner’s testimony, is a lengthy letter of apology from the 1

victim to her father. In it, the victim apologizes for using drugs, her recent incarcerations in two different

counties, and other past misdeeds. The victim also details her medical problems and asks to be reunited with

her son. She only briefly mentions the petitioner, saying that he drinks too much and “picks on” her but that

(continued...)

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victim and that while he was gone, she called her drug dealer to come to the house. When

the petitioner returned to the house, “she wanted to . . . use the van to go out to the drug

people’s house.” He refused.

The petitioner said that he “wanted to talk a lot” during his trial and that he

specifically “wanted to talk about Fort Sanders Hospital.” He said that if the jury had heard

from “the lady doctor at Park West Hospital” who examined the victim on May 29, 2001, he

would be “a free man today.” The petitioner admitted striking the victim in the face and

2

pushing her on June 2 or 3, 2001, but he denied inflicting any of her injuries. Basically he

maintained that she had cut her own hair and placed the knife in her vagina in a drug-induced

fugue. He insisted that the brutal injuries to her genital area happened when she fell from

a bunk bed at the jail several days earlier. He said that the lacerations to her face happened

when she fell while holding the knife. He claimed that he never held the victim hostage and

that she had concocted the charges against him because she was “a snake.” He insisted that,

had he testified at trial, he would have conveyed to the jury that his only desire had been to

help the victim through her drug addiction.

In its written order detailing findings of fact and conclusions of law, the postconviction court denied post-conviction relief, concluding that trial counsel had not

performed deficiently and that counsel had “protected the petitioner’sright to decide whether

or not to testify.”

In this appeal, the petitioner first asserts that the case must be remanded to the

post-conviction court for further proceedings because the post-conviction court failed to

make adequate credibility determinations. He also contends that his counsel performed

deficiently by failing to require the trial court to conduct a thorough Momon inquiry.

We view each of the petitioner’s claims with a few well-settled principles in

mind. Post-conviction relief is available only “when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee

or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A post-conviction

petitioner bears the burden of proving his or her allegations by clear and convincing

evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction

court’s findings of fact the weight of a jury verdict, and these findings are conclusive on

(...continued) 1

living with him is better than living on the street.

Testimony from “the lady doctor” was not presented at the evidentiary hearing, and the petitioner 2

did not elaborate further on what her testimony might have been.

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appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By

contrast, the post-conviction court’s conclusions of law receive no deference or presumption

of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Initially, the petitioner argues that because the post-conviction court failed to

make explicit findings of credibility, the case must be remanded for further findings by the

court. The State argues that the post-conviction court’s credibility determinations are

implicit in the factual determinations included in the written order denying post-conviction

relief.

Tennessee Code Annotated section 40-30-111 requiresthat the post-conviction

court “state the findings of fact and conclusions of law with regard to each ground” via

written order. See T.C.A. § 40-30-111(b). The petitioner, citing Pylant v. State, 263 S.W.3d

854 (Tenn. 2008), insists that the findings of fact must include an explicit determination of

the credibility of the witnesses presented at the evidentiary hearing. In our view, the

petitioner’s citation of Pylant is inapt. In Pylant, our supreme court held that “[w]hen a

petitioner presents at the post-conviction hearing a witness he claimsshould have been called

at trial,” the post-conviction court must determine whether the testimony is material and

admissible and “whether the witness is credible.” Pylant v. State, 263 S.W.3d 854, 869-70

(Tenn. 2008). The court did not add to the post-conviction court’s duties under Code section

40-30-111 a requirement that the court make explicit written credibility findings for every

witness proffered at the evidentiary hearing. The order in this case, which thoroughly details

the evidence presented at the evidentiary hearing, the petitioner’s claims, and the court’s

conclusions as to those claims, fulfills the statutory requirements. Although the postconviction court does not explicitly accredit the testimony of trial counsel, the court’s

credibility findings are implicit in its findings that trial counsel “developed a theory of

defense . . . , that he investigated extensively to gather information about the victim, that he

used skillful technique at trial to undermine the victim’s credibility, and that he protected

petitioner’s right to decide whether or not to testify.”

The petitioner next claims that his counsel performed deficiently by failing to

ensure that the trial court made the necessary inquiries under Momon v. State, 18 S.W.3d 152

(Tenn. 1999), regarding the petitioner’s waiver of his right to testify at trial. The State

contends that the trial court’s failure to conduct an adequate Momon hearing is waived

because the petitioner failed to present it at trial or on direct appeal. As to the petitioner’s

claim of ineffective assistance of counsel related to the inadequate Momon hearing, the State

asserts that the petitioner is not entitled to relief because the record sufficiently establishes

that the petitioner personally waived his right to testify.

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We agree with the State that any free-standing claim under Momon is waived

because it was not presented to the trial court or on direct appeal. See T.C.A. § 40-30-106(g).

Accordingly, we will address only the petitioner’s ineffective assistance claim.

To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the post-conviction petitioner must affirmatively establish first that

“the advice given, or the services rendered by the attorney, are [not] within the range of

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

936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an

adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other

words, the petitioner “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Should the petitioner fail to establish either deficient performance or prejudice, he is not

entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of 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, 40 S.W.3d at 457-58; see also State

v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

In Momon, our supreme court held that “a criminal defendant’s right to testify

is a fundamental constitutional right guaranteed both by [a]rticle I,section 9 of the Tennessee

Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.

As such, the right must be personally waived by the criminal defendant.” Momon v. State,

18 S.W.3d 152, 161 (Tenn. 1999). The court then established a “prophylactic” procedure “to

ensure that defense attorneys in future criminal cases do not unilaterally deprive criminal

defendants of the fundamental right to testify.” Id. at 162. The court described the procedure

to be followed in all cases where the accused does not testify:

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At any time before conclusion of the proof, defense counsel

shall request a hearing, out of the presence of the jury, to inquire

of the defendant whether the defendant has made a knowing,

voluntary, and intelligent waiver of the right to testify. This

hearing shall be placed on the record and shall be in the

presence of the trial judge. Defense counsel is not required to

engage in any particular litany, but counsel must show at a

minimum that the defendant knows and understands that:

(1) the defendant has the right not to testify, and if the defendant

does not testify, then the jury (or court) may not draw any

inferences from the defendant’s failure to testify;

(2) the defendant has the right to testify and that if the defendant

wishes to exercise that right, no one can prevent the defendant

from testifying;

(3) the defendant has consulted with his or her counsel in

making the decision whether or not to testify; that the defendant

has been advised of the advantages and disadvantages of

testifying; and that the defendant has voluntarily and personally

waived the right to testify.

Id. The court noted that the colloquy should generally be conducted by trial counsel and that

“[u]nder normal circumstances . . . the trial judge should play no role in this procedure.” Id.

In this case, the following colloquy occurred following the conclusion of the

State’s proof:

THE COURT: Have you gone into the

Momen (sic) decision with [the petitioner]?

[TRIAL COUNSEL]: Yes, your Honor. We’ve

talked about him not testifying. I’m sorry, is that what you

asked me?

THE COURT: Yes. Yes, that’s right.

[TRIAL COUNSEL]: Yes, we have.

THE COURT: And he understands that

regardless of the wishes of his attorney, he may testify, if he

wishes.

[TRIAL COUNSEL]: Yes, your Honor.

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THE COURT: But this is his voluntary

decision?

[TRIAL COUNSEL]: Yes, your Honor.

THE COURT: All right. Okay.

[PROSECUTOR]: Could we get him to affirm

and restate that on the record, too?

THE COURT: Mr. Seiber --

[TRIAL COUNSEL]: Mr. Seiber, he’s asking you

is it your voluntary decision not to testify?

[THE PETITIONER]: Not to testify?

[TRIAL COUNSEL]: Uh-huh. You need to tell the

judge so he can hear you.

THE COURT: That is your decision, Mr.

Seiber?

[THE PETITIONER]: Yes; yes, your Honor, please.

This exchange clearly falls short of the Momon requirements because the petitioner was not

advised, on the record by trial counsel, that the jury could draw no inferences from his

declining to testify and that the decision to testify lay solely with him. Despite these

omissions, however, the record supports the conclusion that the petitioner personally waived

his right to testify based upon trial counsel’s advice that he not do so. The trial court stated

that the decision whether to testify lay with the petitioner and that the petitioner was free to

testify regardless of counsel’s wishes, and the petitioner stated on the record that it was his

voluntary decision to remain silent. Under these circumstances, we cannot say that trial

counsel’s failure to adhere to the Momon regime deprived the petitioner of his right to testify

or affected the outcome of the trial.

Moreover, the petitioner’s testimony at the evidentiary hearing supports a

conclusion that the petitioner waived his right to testify on the advice of counsel. Although

in the post-conviction hearing the petitioner stated that he wanted to testify at trial so that he

could provide the jury with his version of the events, he confirmed that he chose not to testify

because trial counsel advised him against it. Trial counsel candidly admitted that he did not

want the petitioner to testify given the petitioner’s short temper but stated that he informed

the petitioner that it was ultimately his decision to make. Thus, the record does not

preponderate against the post-conviction court’s finding that trial counsel adequately

protected the petitioner’s right to testify and did not perform deficiently in this regard.

Finally, the petitioner has failed to establish prejudice. The petitioner testified

at the evidentiary hearing that, had he testified at trial, he could have told the jury about the

many things he had done to help the victim and about the victim’s lack of credibility.

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Because the petitioner’s previous beneficence to the victim is irrelevant to the charged

offenses and the victim’s mendacity was thoroughly established at trial, the defendant’s

testimony on these points was not critical to the defense. Furthermore, although the

petitioner asserted at the evidentiary hearing that his testifying would have rendered

admissible a letter allegedly written by the victim on June 2, 2001, and a Western Union

receipt from that same day to establish that the attack did not begin when the victim said it

did, the record establishes that the letter contained too much irrelevant, prejudicial

information to be admissible and that both pieces of evidence would merely have been

cumulative. Trial counsel established via the victim’s medical records and testimony from

her treating physician that the attack could not have begun during the early morning of June

2, 2001, nor occurred in the manner that she claimed. Clearly, the jury did not believe the

victim’s testimony that the petitioner brutally raped her with a kitchen knife, because it

returned a verdict of sexual battery. Testimony of the petitioner’s son established that the

petitioner fired a gun over the victim’s head, and the petitioner did not contradict this

testimony, although he claimed the firing was accidental.

Accordingly, the judgment of the post-conviction court denying relief is

affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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