### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs D ec em be r 16, 200 3

JAM ES D ISON v. S TAT E OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Sevier County No. 98-174-I Ben W. Hooper II, Judge

No

. E 2 0 0 3 -0 0 2 5 1 -C CA -R 3 -PC F ebruary 17, 2004

Petitioner, J ames Dison, appe als from the tria l court’s de nial of post-convic tion relief. Petitioner

was c onvicted for

rape of a c hild and sentenc ed to twe n t y -f i v e y ear s confineme nt. This Court aff irmed Petitioner’s convic tion and sentenc e on dire ct appe al. State v. Jam es Dison , No. 03-C01- 9602-CC-00051, 1997 WL 36844, 1997 Tenn. Crim. App

. L E XIS 9 3 (Tenn. Crim. App. at Knoxvi lle, J anuar

y 31, 1997), perm. to app. denie d (Tenn. 1997) . Petitioner filed a pr o s e petition for post-c onviction relief. Petitioner w as appointed c ounsel and subseque ntly filed an a

mended pe tit ion fo r p os t- c on vic tio n r e lie f, a lle g ingthat he re c e ive d ine ff e c tiv e a ssi sta

nc e of c ouns e l a t tr ia l. Following an evide ntiary hear ing, the trial court denied the petit ion. After a review of the rec ord,

we a ffirm the judg ment of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Trial Court Affirm ed

T H O M A S T. W OO D A LL , J

. , d el i vere d the opinion of the cour t, in which J OE G. R I L EY and N OR MA M C G EE O G LE , J J ., joined.

J ames W. Gree nlee, Sevier ville, Tennesse e (on a

ppeal) ; a nd Keith E. Ha as, Sevierville, Te nnessee (at trial) , for the a

ppellant, J ames Dison.

Pa ul G. Sum me rs , Atto rn e y Ge ne ra l and Re po rt e r; Re ne e W. T ur ne r, As sis ta

nt A tto rn e y

Ge ne ra l; Al C

. Schmutz er, Jr., District Attorney Gene ral; Steven Ha

wkins, Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound

The victim is Petiti oner’ s s i s t er , who was le ss than thirteen y ear s of ag e at the time of the offe nse. She lived with her mother, fathe r, and three brothers in Sevier ville, Tennesse e. This Court

su mma ri zed the fa c ts und e rl y ingPe tit ion e r’ s c on vic tio n o n d ir e c t a pp e a l a s f oll ow s:-2-

On the oc c a sio n o f t

he c ha rg e d s e xua l a

bu se , A D w a s at ho me wi th h e r b ro the rs , J immy [t he appe llant] and C hris. On t his day , AD’s f ather was not workingdue to an injury

he had suf

fer ed at wor

k. Howeve r, at the time of the rape , h e wa s driving AD’s mother

to work. AD and Chris wer e in the living r oom, watching te le vis ion , a

nd Jimmy wa s in the ir pa re nts ’ b e dr oo m. Jimmy

a sk e d A D t o c ome to their pare nts’ room. W h en s he ente red the room, the appe llant shut and block a d e d th e d o o r

. T h e a p p e ll an t th e n mo v e d o n to th e b e d
, u n d e r n e a th the bla nk e ts. He ins tr

uc te d AD to joi n him on the be d and pr oc e e de d to f or c e AD to pe rf or m or a l se x on h im. At tr ial , AD re c ounte d, “ Whit e stu ff c a me ou t of

his wiener .”
Following oral int erc ourse, AD went to the bathr oom and rinsed out her mouth. Whil e she w as in the bathroom, he r brother Chris entere d the room. He asked he r what she w as spitting into the sink. She informed him that it was “co me,” a nd de sc ri be d w hat ha d h a

pp e ne d. Th e a

pp e lla nt the n dir e c te d AD to re tur n to the ir pa re nts ’ r oo m. A D expl a ine d tha t she re tur ne d to th e ro om b e c a

us e sh e wa s a fr a id of the a ppellant. I n the room, the a ppellant told AD to remove her c lothing and, ag ain, join him on the bed. AD testified, “The n he stuck his weine r up in me. . . [and] told me to g o up and down.” At some point, AD asked the appellant to stop, but the appellant did not re spond. AD stated th at t h e penile intercourse was painful, and she crie d.

Th e a p p e ll an t s u

b s e qu e n tl y in f

o r me d A D th a t if s h e r e p o rte d h is a c ti o n s, “he would stick it in all the way .” Neve rtheless, AD attempted to tell her mother what the appe llant had done, but her mother di d n o t believe he r. She also told her baby s itte r , T an y a

H u mp h r e y , w h a t h a d

h a p p e n e d

. A p p ar e n tl y , M s

. H u mp hrey repor ted the incident to the De partment of H u m an Servic es (DH S), as soon there afte r, AD w as interview ed by DHS and, aga in, rec ounted her experience

. She was e x amined by

Dr. Phillip S tanley , in whom she also conf ided.

On c ro ss- e xami natio n, AD te sti fi e d th a t on F ri da y s, Sa tur da

y s and so me Sun da

y s, she would stay

at Tany a Humphre y ’s home while he r par ents wo rked at a ca rd sh op in a loc a l mall

. Mo re ov e r, duri ng the we e k, the a pp e lla nt w ou ld o c c a sio na lly vis it h is g ir lf

ri e nd , le a vin g AD wi th M s. Humphre y fo r s e ve ra l ho ur s. Occ asionally , AD spent the night at Ms. H umphrey ’s residenc e. Ms. Humphrey liv e d w ithher d aught er an d h e r b oy fr ie nd . H e r s on , w ho wa s a pp ro xima te ly twelve or thirteen y ear s old, would also visit

.

A D a d d i t i o n a l l y

r e v e a l e d t h a t , w h e nA D w a s f

e e l i n g i l l
, M s

. H u mp h r e y w ou ld g ive he r m e dic ine that sh e ha d ob ta ine d in Kn oxvil le

. Ac c or din g to AD , “ [s]ome of [the pills ] were white a nd some of them we re y ellow and r ed.” Ms. Humphrey also g ave A D a “ very , very , v er y dark pink” substance that she ref err ed to as Pepto- B is mo l. T h is s u

b s ta n c e w a s n o t c o n ta in e d

in a Pe p to

- B is mo l b o tt le and-3-

made AD fee l dr owsy

. After inge sting the medicine, AD would sleep for thre e or four hour s

. Wh e ns h e aw o k e , A D w o u ld d is c o v e r th a t h e r u n d e r w e ar h a d been

re mov e d o r c ha

ng ed. AD de nie d th a t any bo dy , to he r k

no wl e dg e , h a d s e xua lly molested her at Ms. Humphrey ’s home. F inally , AD testified t h at , afte r she informed Ms. Humphre y

about her brother’ s actions, the baby sitter told AD that her f ather had sexually

molested her when she was a child. Howeve r, AD denie d that Tany a eve r told her what to say when inter

viewed by

DHS.

Chris Dison also testified. Chris rec alled the occa sion rec ounted by his sist er, A D. He testified that, on that occa sion, he, AD, a nd their oldest brother J immy wer e
a t ho me. Jimm y

wa s su pe rv isi ngbo th C hr is a

nd AD . Jimmy

a sk e d A D t o
acc ompany

him into t heir pa

rents’ r oom and instructed Chris to rem ai n i n the living room watching television. Chris subsequently hear d his sist er c rying a

nd attempted to enter

the bedr oom. However, acc ording to Chris, something was blocking the door. He returne d to the living room a nd continued watching television. He then he ard his sister exit the bedr oom and enter the bathroom. He

we nt t o th e bathr oo m and ob se rv e d A D “ sp itt ingou t w hit e stu ff , g oo e y wh ite stuff.” When he asked A D what had happene d, AD re sponded that the a ppellant “wa s having sex wit h her and made her suck his penis.” When Chris confronted his brother, the a

ppellant threatened to hit Ch ris if he told any one what the appellant ha d done. Ne verthe less, Ch ri s at t empted to tell his mother what had happene d. Hi s mo th e r

d id n o t b e li e v e h im

. H e th e nto ld h is f a th e r

. H o w e v e r, DHS was only

contac ted when A D informed Ms. Humphr ey of the incide nt.

On cr oss-examination, Chris t estified that, duri ng the summer of 1994, the

a pp e lla nt w a s r are ly

a lon e wi th C hr is a

nd AD . H e a lso con fi rm e d th a t,

oc c a sio na lly , M s. Humphre y ba by sat bo th h im a

nd AD and that sh e g a ve bo th h im

and AD pil ls whi ch wo uld c a us e the m to sle e p. Chr is a ff ir me d th a t Ms

. Humphre y

re c ounte d to the c hil dr e n in so me de ta il h e r e xpe ri e nc e of se xua l a bu se by her f ather

. Dr. Philip B. Stanley , a pediatrician, testified that, on Aug ust 3, 1 9 94, he examined the victim, AD. He state d that he “pe rfor med a f ull phy sical exam on [AD] and duringthat p h y s ical exam, particula rly dealingwith her g enital ar ea, [he] noticed that she ha d absenc e of he r hy men and a

scar t i s sue located in the hy menal vault are a.” Dr. Stanley opined that only

sexual int erc ourse c ould have

cause d the abse nce of

the hy men. Simil arly , the sca

r tissue in dicated “ [t rauma ] meaningfrom a p en is being inserted in [the hy menal vault ar ea].” Dr . Stanley stated that the victim had infor med him that the appellant, J immy Dison, had

e ng a g e d in

int e rcours e wi th he r. AD a lso inf or me d th e do c tor

that “ sh e ha d to perf orm oral se x for [the appe llant] on numerous occ asions.”-4-

The a ppellant testified. He stated that, during J uly of 1994, he w as employ ed at the Pi zza H u t i nSe v ie r

v il le

. H e w o r

k e d e v e r y d ay , e xc e p t W e dn e s d ay and Sunday
, from 5:00 p.m. until betwe en 1:00 a .m. and 2:30 a.m. in the morning . On his day s off, he would visit hi s g irlfriend. He could not re call beingat home alone wi th A D a

nd Chr is dur ing the mon th of July , 199 4, a s, that summe r, his fathe r d id not work duringthe wee k. Additionally , on wee kends, while his father a nd

m o t h e r w o r k e d a tt h e c ar d

s h o p , A D an d

C h r i s s t aye d

w i t h t h e b a

b ys i t t e r , T an ya Humphre y . T he a

pp e lla nt c on c e de d th a t he did oc c a sio na lly ba by sit his sib lin g s, but he denied e ver molesting his sist er.

Jer e my Di so n te sti fi e d. He state d that he c ou ld o nly re c a ll o ne oc c a sio n in

July of 1994 on which the appellant was at h o m e alone with him, C hris, and AD. Ac c or din g to Jer e my , on that da y , the a pp e lla nt sle pt a ll mor

nin g unti l the ir mother re turned home. With respec t to Ms. Humphrey
, J ere my testified t hat he had obser ved her administering medication to C hris and AD w hile baby sitti ng the Dison children: “T hey

wer e var ious differe nt pills. There wer e big blue pills the

s ize of quarter s and there was white pills looked like horse pills; there w as Valium, Iknow she g ave the m Valium, but a whole slew kinds of pills.”

J ere my further testified that Ms. Humphrey was a re co v er ing he roin addict a nd trave led to Knoxvi lle ever y other da y to obtain Methadon e. She kept the Methadone , which wa s orang e, in t he refrig erator at her home. J ere my asser ted that she g ave A D and Chris Methadone when they experience d headache s or sto ma c ha c he s. Jer e my te sti fi e d tha t he ac c omp anie d Ms. Humphre y to K no xvill e
seve ra l t i m es . During these trips, AD a nd Chris were left at Ms. Humphre y ’s home, either

alone or in the car e of Ms. Humphre y ’s daug hter.

Jer e my fu rt he r a sse rt e d th a t, f

oll ow ingthe ini tiatio n o f a n inve sti g a tio n b y

DH S, AD indicate d to he r family that she had bee n molested by someone other

than her brother. A D also stated that she had dreamed that her brothe r had molested he r. On c ro ss- e xami nati on , Jer e my c on c e de d th a t, w he n A D m a de the se state me nts , he , h is g ra

ndmot he r, and his pa

re nts we re a tte mpt ing to t a pe AD ’s state me nts in

or de r t o a ssi st the a

pp e lla nt’ s d e fe ns e . M or e ov e r, a t the tim e of the se state me nts , the appellan t w a s in

th e y ar d o u ts id e th e D is o nh o me

. Je r e my a d mi tt e d th at

ne ith e r h e no r a

ny oth e r m e mbe r o f h is f

a mil y inf or me d D HS o f AD ’s state me nts , but alleg ed that DHS re fused to sche dule an a ppointment with the appellant’s family

. He did te stify that, when inter viewed by

Ang ela Johnson, from DHS, he informed Ms. Johnson that AD had told her family various, diffe rent stories

conce rning her e x perie nce of sexual abuse. Howeve r, a tra nscript of the inter

view did not support this testimony . Moreove r, Jeremy testified that he did not mention his a ll e g a ti o n s c o n c e r

n in g M s

. H u mp h r e y to M s

. Jo h n s o n

. F in a ll y , during the interview w ith M s

. J ohnson, J ere my sug g ested that his sister’s a lleg ations were the re sult of watching cable television.-5-

Cor a S t an t o n , t h e a

p p e l l an t ’ s g r an d m o t h e r

t e s t i f i e d o nb e h a l f

o f t h e a p p e l la nt. She stated that she ha d known the appe llant his entire life and that the a ppellant lived with her for

a time following his sist er’ s alleg ations. She asserte d that the appellant is “more honest than most.” She furthe r testified:

Well, we wer e sitti ng on the couch one day , J ere my and [AD] and my self. And I

sai d [ AD ] , d id J immy

rea lly do that. She said I do n’ t th ink

so . I dr e a me d. I sa id we ll, the dr e a m w a s n ot t he same thi ng , [A D]. She sa id, I kn ow , bu t T any a g ive me a

pil l, I we nt t o sleep. I drea

med somebody

was doing something to me a nd when I w o k e u p I d i dn ’ th a v e an y p an t i e s o n

. T an ya s a i d i tw a s J i m m y.

Ms. Stanton concede d that, afte r the ini tiation of an investigation, in violation of

a cour t order, she broug ht the appellant two times to the Dison home whe re A D and Chri s wer e staying. She a sserted, how ever , that the appe llant remaine d

ou tsi de on

bo th o c c a sio ns

. Th e re c or d re fl e c ts that, d ue in p art to t he se vio la tio ns , AD and Chris we re r emoved f rom the Dison home.

Trac y Proffitt, a DHS foster

car e wor ker a ssigne d to A D and Chris, testified that these c hildren cur

rent l y re s i de at the Churc h of God Home for Children. She state d th a t de fe ns e c ouns e l c on t a c t e d h e r , a tt e mpt ingto s c he du le an in te rv ie w w ith the childre n. After

speak ing w ith her super

visor, she informe d defe nse counse l that he would have to speak with DHS L eg al Service s

. L ana Riddick, the D HS Soc ia l Se rv ic e Sup e rv iso r f or Se vie r C ou

nty , te sti fi e d th a t sh e de c ide d to re fu se defe n s e co u n s el access to the c hildren. She wa s awa re that the children ha d alre ady been inter

viewed by the Public De fende r’s off ice. She wa s also awa

re that the childre n had testified in juvenile c ourt an d had bee n cross-e x amined by an attorney from the Public Def

ender ’s offic e.
Ang el J ohnson, a DHS Social Counselor, te s t i fi ed that she w as the primar y investigato r i n this case a nd conducte d the initial interview of the vic tim. S he testified that, in interviewing AD, she did not ask lea ding que stions. R ather , AD first broug ht up her brothe r’s name and the topic of “bad touches.” Ms. J ohnson also spoke with Chris Dison. Ag ain, Chris first broac hed the topic of his sist er’ s sexual abuse.

Dison , 1997 WL 36844, at *1-5.

P os t- Co nvi c ti on H e ar ing

Public Defe nder Ed Miller r epre sented Petitioner at trial and in the di rec t appea l. Mr. Miller had re prese nted cr iminal defenda nts in jury trials in at l east five prior child sex ual abuse case s. Mr. Mil le r m e t w ithPe tit ion e r o n at le a st f ive oc c a sio ns pr ior to tr ia l. M r. Mil le r d id n ot i nd e pe nd e ntl y-6-

re c a ll a ny sp e c if ic fa c ts a bo ut t he tr ia l. Mr . Mille r did no t spe c if ic a lly re c a ll disc us sin g the po ssi ble rang e of punishment with Petitioner, howeve r, he te stified, he g ener ally discusses t h e ra

ng e of punishment dur ing the first meeting with a client. Mr. Miller did not rec all rec eiving any plea of fer s from the State in this case . The State introduced, as an exhibi t at the hear ing, a letter written by Mr. Mil le r t o Pe tit ion e r, re qu e sti ngthat Pe tit ion e r c on ta c t Mr . M ill e r i n o rd e r to s c he du le a me e tin g to discuss Petiti oner’ s case

. Prior to trial, Mr. Miller filed a “ Motion for Acc es s to Wi tnesses,” r equesting that he be allowed to intervie w the victim and her brother Chris Di s o n , wh o wer e in the custody of the Depa rtment of Huma n S ervices. The motion was de nied as too late be cause a hea ring was not

c on du c te d p ri or

to t ri a l. On dir e c t app e a l, how e ve r, thi s Cour t con c lud e d tha t the wi tne sse s c ou ld not be compelled to submit to an interview by defe nse counse l. Dison , 1997 WL 36844, at *12-13. Mr . M ill e r su bpoe na e d th e Di so ns ’ b a by sitte r, Ta

ny a Humphre y , b ut s he wa s unava ila ble a s a witness at trial. Mr. Miller did not cross- examine Dr. Stanley beca use hi s m ed i cal ex amination

reve aled e x tensive sexual activity and sca rringto the victim, rather tha n a sing le ac t of pene tration. Mr. Miller re ceive d by

fax Petit ioner’s e mploy

ment rec ords on the sec ond day of Petitioner’s twoday trial. Those rec ords, which wer e admitted as an e x hibit at the post-conviction hear ing, show ed that Petitioner’s last day

of work at Piz za Hut was on June 14, 199 4 , p ri o r t o date of the alleg ed offe nse. Mr. Miller did not ca ll Petit ioner’s pa rents to testify

at trial.

L inda and Curtis Dison, Petitioner’s mother and father , both testified at the post-convic tion he ari ng . Pe tit ion e r’ s p are nts te sti fi e d that De nn is Campb e ll re pr e se nte d Pe tit ion e r be fo re his c a se was tra nsfer red f rom juvenile court. Ms. Dison testified that duringMr. Campbell’s re prese ntation, the State made a

plea of fer of si x months in psy chiatric car e evaluation and a ma x imum of six y ear s to be served i n confine ment. Petitioner rejec ted the plea offe r bec ause, Ms. Dison testified, Mr. Campbell advised Petitioner t hat t he S tate did not have a s trong case ag ainst Petiti oner. Ms. Dison also tes t i fi ed t h at Petitioner was advise d that the possible rang e of punishment wa s ten to fiftee n y ear s. Ms. Dison testified that she did not lear n that Petitioner could rec eive a sentenc e of f

ifteen to twenty -five y ear s to be served at 100 perc ent until the day of sentenc ing. Ms. Dison testified that Mr. Miller beg an re prese nting Petitioner two we eks prior to trial, a fter Petitioner’ s case was transfe rre d from juvenile c ourt. Mr. Dis on testified at the he aring that he first met with Mr. Miller only a fe w day s befor e Petitioner’s trial was set to be g in. The rec ord shows, howeve r, that the trial

was c ontinued from Mar ch, 1995 until Aug ust, 1995.

Ms. D ison te stified at the post-conviction hear ing that, prior to tr ial, Petitioner was on bond and living with his g randmother
, Cora Stanton. The victim and Chris Dison remained in the c ustody of their pa rents until DHS removed the m from the fa mily home. Mr. and Ms. Dison a nd Ms. Stanton violated a c ourt order

to keep Petitioner a

way from his siblings, including the victim. F ollowing that inc ide nt, DH S r e mov e d th e vic tima nd he r br oth e r Chr is fr om the fa mil y ho me

. Th e Di so ns and Ms. Stanton also attempted to secr etly tape r ecor d the victim. Ms. Dison told Ange la J ohnson, a DHS

wo rk e r, that he r h

us ba nd ha d d ir e c te d th e vic timand Chr is n ot to te ll the tr

uth to D HS w or

ke rs . M s. Dison also told Ms. J ohnson that the victim had told her that Petitioner had “put hi s fing ers in her and had he r do ora l sex to him.” Ms. Dison testified that Petitioner had said about the victim that-7-

she w o u ld n o t li e

. Pe ti ti o n e r h a d a ls o s tate d
, “ I d o n ’ t kn o w if I d id o r I d id n ’ t do it.” Ms. Dison testified that Petitioner was suff eringfrom seve re mig raine s at the time of the of fense

.
Ms. Dison also testified at the hearing that she advised the Dis trict Attorney ’s office of he r suspicions reg ardingthe baby sitter, Tany a Humphre y , prior to trial. Ms. Dison lear ned from her son J ere my that Ms. Humphrey

had take n him with her to Knox vil l e t o p u rchase drug s on prior

occa sion s. Ms. Dison testified that Petiti oner ba by sat his brothers a

nd sisters when Ta

ny a wa s unavailable to baby sit. Mr. Dison testified that he stay ed home with his children f rom Marc h, 1994, until S eptember , 1994, due to a wor k-re lated injury . Mr. Dison still drove his wife to work, a nd Petitioner was lef

t alone with his siblings. When Mr. Dison lear ned of the allega tions, he “didn’t believe [P etitioner] would do it.” The Disons both testified at the he aringthat they did not testify at Petitioner’s trial beca

use Mr. Miller advised them that their te stimony , as the pa rents of both the defe ndant and the vic tim, would not be credible to a jury and would be harmful to Petitioner’ s case

.

Pe tit ion e r te sti fi e d a t the po st- c on vic tio n he ari ng

. He te sti fi e d that De nnis Ca mpb e ll repr esente d him during the juvenile cour t proce eding s. Petitioner met with Mr. Campbell sever al tim e s b e fo re the tr ans fe r h e ari ng . Pe tit ion e r’ s p are nts we re a lso pr e se nt f or a t leas t tw o of

tho se meet i n gs

. P etitioner testified that, while Mr . Campbell was re prese nting him, he r ece ived a plea of fe r f ro m th e State . Pet it io ner te sti fi e d th a t he un de rs too d th a t th e ma ximumse nte nc e he c ou ld

re c e ive if c on vic te d wo uld no t e xce e d the se nte nc e that he wa s of fe re d un de r the pl ea agreem ent. Petitioner theref

ore r ejec ted the plea

offe r. Pet i t i o n er d i dnot learn that, if convicted, he could be sentenc ed to fiftee n to twenty -five y ear s to be serve d at 100 perc ent unt il afte r t he plea was re jected. Petitioner testified that he made sever al attempts to contac t Mr. Mil l er an d re ceived no response

. Petitioner testified that he wor ked at Pizz a Hut during the month of the a lleg ed off ense. Petitioner also testif ied that the victim and Chris wer e sometimes left a lone in his care during the month of J uly , 1994. Petition er te stified that Mr. Miller did not interview Jennifer My ers, Petitioner’s g ir lf ri e nd a t th e tim e of

the of fe ns e , a s a

po te nti a l w itness

. Pe tit ion e r t e sti fi e d at th e he ari ngthat, if c a lle d a s a

wi tne ss at tr ia l, M s. My e rs c ou ld h a ve te sti fi e d th a t he r pare nts pic ke d up Pe tit ion e r i n the morning s, and he stay ed at their house until he went to work. Petitioner testified, howe ver, that the re we re tim e s w he n h e wa s a lon e wi th h is young e r s ibl ing s. Pe tit ion e r d id n ot s pe c if ic a lly name any other witnesse s that defe nse counse l should have ca lled to testify at his trial.
Dennis Campbell worke d in the P u b l i c Defender ’s offic e fr om 1990 until 2000. He repr esente d Petitioner in juvenile court on the instant charge

. Mr. Campbell testified that he discussed the possible rang e of punishment with Petitioner. Mr. Campbell advised Petitioner a nd his pa re nts tha t th e ra ng e of po ssi ble se nte nc e s w as fi ft een to tw e nty -f ive y e ars . M r. Campb e ll int e rv ie we d th e vic timand he r b ro the r C hr is D iso n. Mr

. Campb e ll atte mpt e d to c on ta c t th e Di so ns ’ baby sitter numerous times, but was unable to ta lk w ith he r. Mr. Campbell met wit h Petitioner numerous times and investig ated a ny possible alibis, including Petitioner’s plac e o f employ ment during the alleg ed off

ense. Mr . Campbell advised Petitioner that there was “ substantial evidence ” of his g uil t in

thi s ca se , but Pet iti on e r ma int a ine d his inn oc e nc e

. Mr . Cam pb e ll as ke d Pe tit ion e r i f he could have committed the o ff ense and forg otten due to his migra ine hea dache s. When-8-

Petitioner’s ca se wa s transfe rre d from juvenile c ourt, Mr. Mill er t o o kover Petitioner’ s repr esentation.

Ine ffec ti ve As sis ta nc e of C ouns e l C lai m
The pe tition for post-conviction relief and the amended pet i t i o n claim that counse l was ine ff e c tiv e fo r t

he fo llo wi ngre a so ns :

1. Counsel did not confe r wit h his client as often a s nece ssary to elicit matters of defe nse. Mr. Miller only

confe rre d with petitioner on two or thre e occ asions and this is not enoug h to provide a pr oper de fense on this ty pe of c ase.

2. Couns e l di d n ot d o a de qu a te re se arc h, bo th f a c tua l and

le g a l.
3. Counsel did not conduct adequa te investig ation.

4. Couns e l di d n ot i nte rv ie w a ll p ote nti a l w itn e sse s.

5

. C o u n s e l d i d n o t f

o l l o w t h r o u g h w i t h p r e t r i a l m o t i o n s a s h e s h o u l d
, t h e r e b y, causingimportant g rounds to be wa ived on appe al.

6. Counsel was not an e x pert at de fending child sex abuse case s and not qualified to make a pr oper de fense of petit ioner. He should have reque sted assistance from

an atto rn e y

wh o is e xpe ri e nc e d in

the se ty pe of c a se s.
7. Following the cour

t’s denial of a

mistrial on other crimes e vidence , counsel fa ile d to a sk fo r c ur a tiv e ins tr uc tio ns c a us ingthi s g ro un d to be wa ive d o n a pp e a l, there by prejudicingpetitioner.
8. Counsel did not pursue the motion to revie w the re cords of the Depa rtment of Human Service s causing the motion to be denied. This cause d this ground to be de c lare d w a ive d b y

the Court of Cr imi na l A

pp e a ls.
9. Counsel did not fully

advise the Petitioner of

the ra ng e of punishment he w as fac ing at the outset of his case

. 10. Counsel did not present offe rs of settlement throug h plea barg ain(s) to the Pe tit ion e r i n a

mann e r t hat f ull y a dv ise d th e Pe tit ion e r o f t he c on se qu e nc e s o f s a id offe rs and the pr oper r ang e of punishment he w as ac tually fac ing.

11. Counsel failed to ca ll ex culpatory witnesses that were in the Courthouse, available to testify , that shows th a t C o u n s e l d id not a dequate ly

investigate, pre pare-9-

or def end the Petitioner in a ma nner c onsistent with the standards of e ffe ct ive

a ssi sta nc e of c ouns e l.

12. Counsel failed to object to Dr. S tanley ’s t estimony as an expert witness. Mr. M il le r s ti p u late d th a t D r

. St an le y w a s an e xp e rt as a p ed i a trician , not as an OB /GYN phy sician. The primary purpose for calling Dr. Stanley was to introduce the evidenc e of the alleg ed victim’s abse nce of a hy men. This is a OB/GYN qu e sti on , n ot a pe diatr ic qu e sti on and Mr . M ill e r d id n ot o bje c t and did no t c ro sse xami ne thi s w itn e ss atall . Dr. Stanley , in response to a q u es t i on by the State,

ans we re d th a t the on ly wa y that the re c ou ld be an ab se nc e of a hy me n in th is c hil d is sex ual interc ourse. He was not cert i fi ed as an ex pert in this are a and tr ial counsel should have objected.
(Emphasis in orig inal).

At the conc lusion of the hear ing, the post-conviction cour t orally conclude d that Petitioner had not established that de fense counsel’s pe rfor mance was de ficient. The trial co u rt fo u n d that “ther e wa s sufficient c ontact between Mr. Miller and his client and witnesses and family members.” Th e c ourt a lso fo un d th a t P eti ti on e r h a d n ot e sta bli sh e d th a t de fe ns e c ouns e l di d n ot c on fe r w ith Petitioner as often a s nece ssary or that def

ense counsel di d not adequately rese arc h Petitioner’s ca se. The c ourt stated, “the re’ s been no pr oof here to suppor t that a lleg ation [of inadequate r esea rch] at

a ll. ” Th e tr ia l c ourt

c on c lud e d th a t Pe tit ion e r h a d f a ile d to sh owpr e

jud ice a s a

re su lt o f d e fe ns e counsel’s alleg ed failure to inter view witnesses. The trial c ourt furthe r conc luded that Petitioner was

no t pre jud ic e d by de fe ns e c ouns e l’ s all e g e d fa ilure to pur su e the mot ion to a llo w a c c e ss t o th e vic tim and her brother. T he trial c ourt found that there was nothing in the rec ord to support the alleg ation that de fe ns e c ouns e l w a s n ot a n e xpe rt in d e fe nd ingc hil d s e x ab us e c a se s and wa s n ot q ua lif ie d to

ma ke a p r o p e r

d e f e n s e

. T h e tr i a l c o u rtc o n c l u d e d t h a tP e t i t i o n e r

w a s n o tp r e

j u d i c e d b y d e fe ns e counsel’s failure to reque st a curative inst ruction following t he trial court’s denial of a mistrial base d on the er roneous a dmission of other crimes e vidence beca use in the direc t appea l, the Cou rt of Criminal Appeals conc luded that the er ror wa s harmless. See D ison , 1997 WL 36844, at *10. The trial court a lso concluded that Petit i o n er f ailed to show pre

judice as a

result of de fense counsel’s alleg ed fa ilure to revie w DHS re cords be ca u se there was “ no showing [at the post-conviction hear ing] of what could possibly be in those rec ords that would be he lpful to [ Petitioner].” The court found t h at P eti tioner had be en fully advised of the rang e of punishment and that defe nse counse l prese nted plea of

fer s to Petitioner, but that Petitioner reje cted any offe rs t o plead because , the trial court stated, “ it’s quite clear , too, that y ou [P etitioner] were not interested in a ny plea ne g otiations or t rying to resolve this, y ou took the pos ition that y ou wer e not g uilty

. . . .” The court found that Dr. Stanley , a pediat ri cian, was qualified to g ive expert testimony reg ardingthe sexual abuse of a

c hil d. Fin ally , th e tr ia l c ourt fo un d th a t if

Pe tit ion e r’ s p are nts ha d te sti fi e d at tr ia l, “ it c e rt a inl y probably would not have c hang ed the r esult in this t rial.”

Petitioner does not specific ally alleg e error in the t rial court’s ruling

. I n his brief, Petitioner makes the g ener al asser

tion that he was pre

judiced b y

defe nse counse l’s defic ient perf ormanc e.-10-

Petitioner argues that def

ense c ounsel failed to consult with Petit ioner, wa s unprepa red, a nd did not provide a zealous repr esentation of Petiti oner.

Th e tr ia l judg e ' s fin din g s of fa c t on post -c on vic tio n he ari ng s ar e c on c lus ive on a pp e a l un le ss the evidenc e pre ponderates otherwise

. State v. Burns , 6 S.W. 3d 45 3, 46 1 ( Te nn . 1 99 9) . O n a pp e a l, this Court m ay

not rewe igh or ree valuate the evidenc e, nor substi tute its inferenc es for those draw n by the trial judg e. Sta te v . H on e y c utt , 54 S.W .3d 762, 766 (Tenn. 2001). Questions conc erningthe

cre dibilit y

of witnesses a

nd the weig ht and value to be g iven to their testimony are resolved by the trial court, not this Court. Burns , 6 S.W .3d at 461. The bur d en o f es t ab l i s hing that the evidenc e preponde rate s otherwise is on petitioner. He nle yv . S tat e , 960 S.W .2d 572, 579 (Tenn. 1997) . The t r i a l c o u r t ’ s c o n c l u s i o n s o f l aw , h o w e v e r , ar e r e v i e w e d u n d e r a p u r e l y de novo standard w ith no presumption of cor

rec tness. Fi e lds v . S

tat e , 40 S.W .3d 450, 458 (Tenn. 2001)

.

We revie w a claim of ineffe ctive assist ance of counsel under the standa rds of Ba x te r v . R os e , 523 S.W .2d 930 (Tenn. 1975) , and Strickland v. W ashington
, 4 6 6 U

. S

. 6 6 8 , 1 0 4 S

. C t

. 2 0 5 2 , 8 0 L. Ed. 2d 674 (1984). The petitioner has the bur den to prove that (1) the attorney ’s per formanc e wa s defic ient, and (2) the deficient perf ormanc e resulted in prejudice to the defendant so as to deprive him of a fair tr ial. Strickland , 4 66 U. S. at 68 7, 10 4 S. Ct. a t 20 64 ; Go ad v . S tat e , 938 S.W .2d 363, 36 9 (T e nn . 1 99 6) ; Bu tle r v . S tat e , 789 S.W .2d 898, 899 (Tenn. 1990). The failure to prove either de fi c ie nc y

or pr e jud ic e jus tif

ie s d e nia l of

re lie f; the re fo re , th e c ourt ne e d no t a dd re ss t he c omp on e nts in a ny particula r orde r or e ven addr ess both if one is insufficie nt. Goad
, 938 S.W .2d at 370. I n order to establish prejudice
, the petitioner must e stablish a “re asonable probability that, but for counse l’s

un pr of e ssi on a l e rr or s, the re su lt o f t he pr oc e e din g wo uld

have be e n d if

fe re nt. A r e a so na

ble probability

is a probability

sufficie nt to undermine confide nce in the outc ome.” Strickland , 4 66 U. S. at 694, 104 S. Ct. at 2068.

A s t o t h e a l l e g a t i o n t h a t d e f e n s e c o u n s e l d i d n o t c o n f

e r w i t h P e t i t i o n e r a s o f

t e na s n e c e s s a r

y, Petitioner himself testified at the post-c onviction hear ing that he met with Assistant Publi c De fende r Dennis Campbell s ever al t imes befor e his case was tra nsfer red f rom juvenile cour

t. Publi c De fende r Ed Mil le r t e sti fi e d th a t he me t w ithPe tit ion e r o n at le a st f ive oc c a sio ns pr ior

to t ri a l. M r. Mil le r a lso

wr ote a le tte r t o Pe tit ion e r, re qu e sti ngthat Pe tit ion e r c on ta c t hi m to sc he du le a me e tin g to d isc us s Pe tit ion e r’ s c a se . Pe tit ion e r h a s f a ile d to e sta

bli shthat c ouns e l’ s per fo rm anc e wa s d e fi c ie nt i n th is reg ard. A s to the alleg ation that co u nsel did not conduct ade quate r esea rch a nd investigation, Petitioner has also fa iled to establish that counsel’s pe rfor mance was de ficient.

Pe tit ion e r h a s n ot s ho wn that he was prej ud ic e d b y de fe ns e c ouns e l’ s a lle g e d f a ilure to interview pote ntial witnesses. “When a pe titioner contends that trial c ounsel failed to discove r, interview, or

prese nt witnesses in support of his defe nse, these w itnesses should be pre sented by the petitioner at the evidentiar y hear ing.” Blac k

v . S tat e , 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990)

. Pe tit ion e r t e sti fi e d a t the po st- c on vic tio n he ari ng a s to w hat hi s f or me r g ir lf ri e nd , Jennif

e r M y e rs , might have testified to at trial. Howe ver, Ms. My ers did n o t t es t i fy at t he hea ring . Petitioner has fa ile d to pr ov e pr e

judice. P etition e r h a s n ot a lle g e d a ny oth e r p ote nti a l w itn e sse s w ho m de fe ns e counsel should have interviewe d or pre sented at trial.-11-

I n the direc t a

ppeal in this case , this Court addre ssed the issues of: (1) whether the trial cour

t

err oneously

declined to de clar e a mistrial following the introduction of ot her crimes evide nce; ( 2) whether the trial cour

t should have dismi ssed t he indi ctment, or alternatively , g rante d a continuanc e, b as ed on defense c ounsel’s inability to interview the vic tim and her brothe r Chris Dison; and (3) whether defe nse counse l should have bee n g rante d acc ess to DHS rec ords in possession of the State. I n his petition for post-conviction relief
, Petitioner argues t hat defense counsel was ineffec tive for causingthose issues to be waive d on appea l. In the opinion of this Court, however, we addre ssed those issues and concluded that althoug h defe nse counsel waived e ach of the issues, the er

rors in the trial court, if a

ny , wer e har

mless. Wi th respec t to those issues, we held: (1) the evidenc e of othe r sex crimes wa s admissible under the supre me cour t’s holding in State v. Rick man , 876 S.W .2d 824, 829 (Tenn. 1994) , and althoug h defe nse counsel should ha ve re quested a

curative instruction following the trial court’s denial of a mistrial ba sed on Dr. Stanley ’s testimony reg ardingother incide nts of oral intercour se, the admission of that testimony

was ha rmless err or, Dison , 1997 WL 36844, at *10; (2)

a lth ou g h d e fe ns e c ouns e l w a ive d th is i ssu e by no t ha vin g br ou g ht t

he mot ion to acce ss t

he c hil d witnesses in the custody

of DHS to the attention of the trial c ourt prior to trial, prospe ctive witnesses have t h e rig ht to refuse to be interview ed. More over, D efe ndant fa iled to show how he wa s pr e jud ic e d b y

the tr ia l c ourt ’s de nia l of his mot ion, and

the re fo re , a

ny e rr or , if any , w a s h arm le ss, Id . at *12-13; and (3) the prosec utor indicated to the tria l court that the DH S recor ds contained no exculpatory

evidenc e , a

n d D e f e ndant fa iled to demonstrate other wise, Id . at 14-15. We conc lude that Petitioner has failed to show in this post-conviction proce eding how, if at all, he was prejudice d by defe nse counse l’s waiver

of those issues.
Additionally , Petitioner argues that counse l was ineff ective f or fa iling to adv i s e Petitioner of th e p o s s ib le r an g e o f p u n is h me n t an d to p r e s e n t o f f e r s o f s e tt le me n t to Pe ti ti o n e r

. The re cord indicates that Petitioner wa s advised of both the possible sente nces a nd any plea of fer s made by

the State . A t th e po st- c on vic tio n h e ari ng , D e nn is C a mpb e ll, wh o r e presen ted Pet iti on e r i n juve nil e
c ourt , t est if

ied that he dis c us se d th e ra ng e of po ssi ble se nte nc e s w ithPe tit ion e r a nd his pa re nts

. Petitioner and his pa

rents testified at the post-c onviction hear ing that they wer e all advise d of a ple a offe r made by the State prior to tr ial, but their testimony was unc lear

as to the sentenc e under

that plea of fer . Mr. C ampbell testified that Petitioner re jected the offe r bec ause he maintained that he did not commit the offense, e ven thoug h Mr. Campbell advised Petitioner that ther e wa s “substantial evidenc e” of

his guilt. Petitioner failed to e stablish that defen se counse l’s perf ormanc e wa s defic ient.
Finally , the post-conviction petition alleg es that def ense c o u n sel was inef

fec tive for stipulating that Dr. Stanley , a pediatrician, wa s an expert qualified to testify as to the victim’s injuries and for

not cross-e x amining D r. Stanley at trial. The post-conviction court concluded that Dr. Stanley , who examined the child victim in this case and testi fied as to the absenc e of a hy men and the prese nce of scar tissue in her ge nital are a, was qualified to g ive his expert opinion. There is no evidence to show otherwise. A lso, Mr. Miller testified at the post-c onviction hear ing that Dr. Stanley ’s examination revea led extensive sexual activity and sca rr i n g t o the victim. Mr. Miller the re fo re deter mi nedth at c ros s-e x ami nat io n o f Dr. S tan ley wou ldno t r eveal any

evi den ce t hat wo uld benef it Petit ioner’s c ase. Petitioner ha s failed to prove a def iciency in counsel’s pe rfor

mance

.-12- CO NC LU SION
The judg ment of the trial c ourt is affir med.

___________________________________

THOMAS T. WOODAL L , J UDGE