T hi s case was heard o n t he cam p us o f t he U ni vers i t y of T enness ee at M art i n as a special pro ject of t he 1

T e n n e sse e C o u rt o f C rim ina l A p p e a ls in fur the ra n c e o f t h e e d u c a tio n a l p ro c e ss o f stud e n ts a n d fac u lty. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON Fe br ua ry 10, 200 4 S es sio n H eard a t U niv er sit y of

T en ne sse e at

Mart in 1



### TIMOT HY JOHNS v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. P -23804 W. F red Axley, Judge

No. W2003-00677-C CA-R 3-P C - F iled April 12, 2004

Th e pe tit ion e r app e a ls fr om the de nia l of his po st- c on vic tio n p e tit ion . T he pe tit ion e r h a d p le d g uil ty to r ape of a c hil d und e r ag e thi rt e e n in exch a ng e fo r a se nte nc e of fi ft e e n y e ars a t 10 0% . O n a pp e a l, the petitioner claims that he rec eived ineffe ctive assistanc e of c ounsel. The pe titioner also contends that th e po st- c on vic tio n c ou rt e rr e d by de nying his re qu e st to ca ll two wi tne sse s andby de nying his reque st to make an off

er of proof r eg arding the testimony of those witnesses. The post-c onviction

cour t al s o ex cluded c erta in medical re cords of the victim. After thor oug h revie w, we r ever se the p o s t -c o n v i ct i o n co u rt ’s j u d gm en tan d re m an d t h e c as e t o t h e p o s t -c o n v i ct i o n co u rt fo r an ew h ea ri n g. At the new he aring , the post-conviction court should admit t he testimony of the pe titi oner’ s two witnesses and the victim’s medical re cords. Shou l d the court exclude certain portions of the testimony , offe rs of proof shall be allowe d in acc ordanc e with Tenne ssee Rule of E vidence 103.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t R e ve r se d and Rem anded

J OHN E VE R E TT W I L L I AMS , J
., delivere d the opinion of the court, in which R OB E R T W. W EDEMEYER , J ., joined. J OE G. R I L EY , J
., filed a se parate conc urring opinion.

Che sn e y F a lk M c Af

e e , M e mph is, Te nn e sse e , f or the app e lla nt, Ti mot

hy John s.

Paul G . Su mm ers , At torne y Ge ne ra l a ndRe po rt e r; J. Ros s D y e r, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Ge n er al ; and Will iam Bond, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

T i m o t h y J o h n s , t h e p et i t i o n er , wa s i n d i ct ed fo r r ap e o f h i s fi v e- y ea r- o l d d au gh t erd u ri n g a tim e pe ri odbe tw e e n Jan ua ry 29 , 1 99 9, a ndF e br

ua ry 2, 19 99 . T he pe tit ion e r e nte re d a ple a of g uil ty to the indicted cha

rg e of r ape of

a child in exchang e for

an ag ree d sentenc e of f

ifteen y ear s at 100%. A pro s e petition for pos t -c o n v i ct i o n relief was timely

filed, and two a mended pe titions wer e subsequently filed after appointment of post -convic tion counsel. After an evidentiary hearing, the post-conviction court denied the relief soug ht by the petit ioner. The appea l of that denial raises three iss ue s:

1. Whether counse l’s repr esentation was s o d e f e c ti v eth at t

h e petitioner’ s g uilty plea was not voluntarily

and intellige ntly

made; 2. Whe the r the po st- c on vic tio n c ou rt e rr e d in de nying the pe tit ion e r’ s e ff ort to c a ll two witnesses or a llow an offe r of pr oof of their testimony ; and 3. Whe the r the po st- c on vic tio n c ou rt e rr e d in dis a llo wi ng in tr od uc tio n o f c e rt a in

me dic a l r e c or ds

.

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

Th e pe tit ion e r t e sti fi e d th a t he wa s f ir st c on ta c te d an d qu est io ne d a bo ut the of

fe ns e in Fe bruary of 1999. He denied a ny

involvement at that interrog ation

. Af ter his indictment, he wa s
arr e ste d o n M a y

20 , 1 99 9. At

his ini tia l app e aranc e , he wa s app oin te d r e pr e se ntatio n b y the pu bli c defe nder’ s office but without a specific attorney . The pe titioner first met with his assigne d attorney in J une. At that mee ting, he provided counsel with the names of w itnesses and c ontact information

conce rning the witnesses. The se witnesses o s tensibly would have know n that during a portion of the time the victim was ra ped, she w as in the ca

re of her g odpare nts, Pame la and Rosco Coleman. The pe titioner stated that counse l promised an investig ation would be conduc ted.

The ne x t meeting the petiti o n er had with counse l was on Aug ust 12th in t he courtroom lockup ar ea. T he petitioner ha d attempted unsucc essfully to contact his counse l in the intervening time. The petitioner stated he was not c ontacted by any repr esentative of the public de fende r’s off ice betwee n the meeting s with his counsel. The petiti oner did not see any discovery

materia ls, and they

we re no t di sc us se d. He state d th a t he w a s d ia g no se d a s ma nic de pr e ssi ve a ndwa s ta kin g Z olo ft
, Mell ari l, a ndEl a vil , in c omb inatio n. Du ri ng his inc a rc e ratio n, he wa s a lso dia g no se d w ith g onorrhe a.

Th e pe tit ion e r s ta te d th a t hi s p le a of g uil ty wa s no t vo lun tary bu t wa s on ly e nte re d b e c a us e his counsel “told me that he ha s done all that he could do, that there wa s nothing e lse that he would - that he could se e as ha

ppening .”

Du r i n g c r o s s

- e xa m i n a t i o n , i t w a s e s t ab l i s h e d t h a t t h e p e t i t i o n e r ’ s f i r s t c o n t a c t w i t h h is appointed counse l was June 28th. The witnesse s he provided c ounsel had c ustody of the victim at t h e t i m e o f

t h e r ap e ; h o w e v e r , s h e w a s a l s o w i t h t h e p e t i t i o n e r d u r i n g p ar to f t h e p e r i o d o f

J a n u ar y,-3-

19 99 . On Au g us t 12th , the se c on d mee tin g wi th co un se l, the pe tit ion e r wa s adv ise d tha t th e Sta te had off ere d a fifte en-y ear

sentenc e upon his ple a of g uilty

. Counsel advised the pe titioner to acc ept the offe r. The c ross-exami n at i o n ref err ed to the tra nscript containing the questioning of the petitioner in his waiver of t rial by jury and request for acc eptanc e of the g uiltyplea. The petitioner

a g re e d th a t he ha d ans we re d th e tr ia l ju dg e ’s qu e sti on s a s r e fl e c te d in the tr a ns c ri pt but state d h e did

no t r e me mbe r any

of it.

Th e pe tit ion e r’ s c ou ns e l ne xt at te mpt e d to c a ll t wo wi tne sse s p ur po rt e dly to s ho w f

a c ts

a va ila ble bu t un dis c ov e re d d ue to t ri a l c ou ns e l’ s f

a ilu re to i nv est igat e . O ne wi tne ss, the vic tim
, would alleg edly

deny the petitioner’s involveme nt in t h e cr i m e. The other witness, the victim’s g randmother
, would testify that the victim’s statement g iven to the State investigat o rs u s ed terminolog y which the victim did not use and that the victim and the petitioner ha d lived with her without problems. The post-convic tion court disallowed the witnesse s and their of fer of proof

.
Trial counse l stated that he fir st met w ith the petitioner on J une 28, 1999. At that time, the only item counsel had in his file wa s a copy of the indictm en t of the pe titioner on which counse l made notes f

rom their conver sation. Counsel stated he did not rec all that the names g iven him were witnesses but “who his re latives wer e and w here he wa s living[.] ” Subseq u en t ly , counsel filed a motion for discovery and re ceive d the materials in response. He did not reca ll whether he share d the discovery materia l with the petitioner.

Counsel’s next m eeting wi t h t h e p et i t ioner wa s on Aug ust 12th, and the State’s off er w as
c on ve y e d to the pe tit ion e r. Cou ns e l, wh e n a sk e d if the pe tit ion e r re qu e ste d a tr ia l, s ta te d a s f

oll ow s:
To the best of my

rec ollection that he did not want a trial, and I don’t know his exact words. I ’d have to para

phrase , but the g ist of it wa s he wanted to enter a g uiltyplea and g et it over with.

Counsel stated the petitioner ne ver r equeste d an investig ation or for him to contact any one.

On c ro ss- e xami natio n, c ou ns e l st a te d tha t his time log re fl e c te d a one -h a lf ho ur me e tin g wi th the petitioner on J une 28th, f iling for discovery

on J une 29th, a phone call and le tter to the district

a tto rn e y ’s of

fi c e , andre c e ipt

of dis c ov e ry

ma te ri a ls. Th e fi le did no t re fl e c t nor didc ou ns e l r e c a ll having contac ted any

individuals noted in his i n t er v i ew n o t es . The file did not re flec t that any investigation wa s undertaken by the public defe nder’ s office or any attempts to contact the pe titioner other than the contac ts in court. Counsel’s time s h ee t reflected one hour on Aug ust 12th, which included talking with the petitioner and the d i s t ri ct attorne y , completion of g uiltyplea f orms, and entry of the plea

. A supervisor f

rom the public defe nder’ s office testified that it was their policy to “attempt investiga tion” in all Class A and B f elony case s “where possibl e.” If none wereconducte d, a notation should be enter ed explaining the r eason.-4-

The pe titioner attempted to introduce me dical re cords which purported to show that the victim was examined for sexual abuse on June 18t h al l egedly committed by

another , while the petitioner wa s in custody . These r ecor ds were disallowed.

Ana lys is

On app e a l, the pe tit ion e r c on te nd s that the po st- c on vic tio n c ou rt e rr e d by de nying his re qu e st to call two witnesses a nd by deny ing his re quest to make a n offe r of proof reg arding the testimony of those witnesses. The post-conviction court denied the pe titioner’s reque st to call the victim and the victim’s g randmother beca use it found that the tes t i m o n y from thos e witnesses w as irre levant as to whethe r Counsel was inef fec tive. The c ourt stated:

What the petitioner seems to be tra veling on is that had [Counsel] or his inv e sti g a tor a sk e d the qu e sti on s or pur su e d the inv e sti g a tio n w ith these two, they

would have de termined number one, it never happene d. We’re–at the time we’r e in a g uiltyplea stag e, that’s a far pie c e fr om w he re it i s th a t it ne ve r h app e ned or tha t sh e did n’ t us e the se kin d o f t e rm s. An d I sa y that th is i s n ot the ve hic le fo r that.
Following this ruling, the petitioner’s counsel asked t he post -convic tion court, “Can I put on an offe r of proof, y our Honor? ” The post-conviction court replied, “I don’t see the need to. I ’m telling y ou now, it’s not the law. So that’s denied.”

The g ener al rule is that “‘ assuming an offe r of proof has been seasonably made, it is err or for the trial court to r efuse to pe rmit c ounsel to state what evidenc e he is of fering.’ ” Alley

v. State, 882 S.W .2d 810, 815-16 (Tenn. Crim. App. 1994) (quoting 89 A.L .R., Offer of Proof–Ruling–Error , § 2 at 28 3 ( 19 63 )) . T e nn e sse e Rul e of Ev ide nc e 10 3 p ro vid e s a s f oll ow s:
(a) Effec t of Er r one ous Rul ing

. Error may not be pre dicated upon a ruling which admits or excludes evide nce unle ss a substantial rig ht of the pa rty is affe cted, a nd

(1) Objection

. I n ca se the ru lin g is one a dmi tti ng e vid e nc e , a tim e ly ob j e c t i o n o r m o t i o n t o s tr i k e ap p e ar s o f r e c o r d
, s t a t i n g t h e s p e c if ic g round of objection if the specific g round was not appar ent from the context; or

(2) Offer of Proof

. I n case the ruling is one excluding e vidence , the

su bs ta nc e of

the e vidence a ndthe sp e c if ic e vid e nti ary

ba sis supporting a dmission were made known t o the court by offe r or we re
app are nt f ro m th e c on te xt.-5- Once the court makes a d efinit ive ruling on the re cord a dmitti ng or excluding evide nce, e ither at or be fore trial, a party need not r enew an ob je c tio n o r o ff

e r o f p ro of

to p re se rv e c la im o f e rr or fo r a pp e a l.

(b) Re c or d of Offe rand R uling . The c ourt may add any other or further statement which shows the charac ter of the evidenc e, the f orm in w hic h it

wa s off e re d, the ob

je c tio n ma de , a ndthe ru lin g . It sh a ll pe rm it the makin g of

a n o ff e r i n q ue sti on a nda ns we r f orm.

This Court ex plained, “Consequently
, though not expli citly stated [in Tennessee Rule of Evidenc e 103], i t is appare nt that courts ar e re quired, in appr o p ri at e circ umstances, to allow of fer s of proof when t h e ev i d ence is ex cluded so a s to enable c onsideration of the issue on appea l.” Alley , 882 S.W .2d at 815-16. I n Alley
, this Court held that it is error for a trial court to re fuse to g rant a n offe r of proof in certain circ umstances. I d. at 816. This Court stated:

I n cir c u ms tan c e s in w h ic h it is o b v io u s f r o m th e r e c o r d th at the proff ere d evidenc e could, unde r no circ umstances, be rele vant to the issues, a trial co u rt ’s re fusal to g rant a n offe r of pr oof is not error

. Ho we ve r, if

the ob vio us inc omp e te nc e or ir re le va nc e is n ot r ead ily appar ent from the r ecor d, it is error to exclude any rea sonable off

er which demonstrates the re levanc e and ge nera l import of t he excluded evidenc e.

Th e re a so n f

or su c h a ru le is q uit e cl e ar. Whe n a pa rt y contends that the tria l court er red in e x cluding testimony
, the nee d for a d es cr i p t i o n o f t h at t es t i m o n y i s co m p el l i n g. Ab s en t s u ch a s h o wi n g, an appellate court cannot determine whether the e x clusion was er ror, and if e rror

is found, whether

the er ror is harmless. . . .

I f the re c or d o f a

po st- c on vic tion proc e e din g do e s n ot c on ta in a ll evidenc e that this court may find admissib l e, we cannot de termine wh e the r the e vid e nc e pr e po nd e rate s a g a ins t th e tr ia l c ou rt ’s fi nd ing s. Nor ca n we determine whe ther the tria l court er red in e x cluding

e vid e nc e that ma y

arg ua bly be re le va nt t o is su e s r a ise d in the po stco n v i ct i o n p ro ce ed i n g.

I d. at 816-17. Whil e there are a number of way s of m aking an offer of proof, “ the better prac tice” is f or trial counsel to present the a ctual testimony at issue in question and answe r form. I d. at 817 (citing Fa rmers- Peoples Bank v. Clemmer, 519 S.W .2d 801, 804 (Tenn. 1975)); Neil P. Cohen, et al., Tennessee Law of

Evidenc e , § 1.03[5] [d] at 1-24 (4th e d. 2000).

Th e pe tit ion e r c on te nd s th a t Co un se l w a s in e ff e c tiv e be c a us e he a dv ise d th e pe tit ioner to plead g uiltywithout conducting a thoroug h investigation of the crime and interviewing key-6-

witnesses. The pe tit i oner a rg ues that his g uiltyplea wa s involuntary beca use of this ineff

ective

a ssi sta nc e of

c ou ns e l. T he pe tit ion e r f

urthe r a rg ue s th a t, h a d Co un se l pro p e rl y inv e sti g a te d th e c ri me and intervie wed wit n es s es , C ounsel would have discovere d fac ts that would have he lped the petitioner’s de fense and then c ould have a dvised th e p et i t i o n er acc ording ly . Acc ording to the petitioner’s brie f, the victim would have testified that the petitioner w as not the one who molested her. A lso acc ording to the petitioner’s brie f, the victim’s g randmother was expected to te stify that the victim was not afr aid of her father , that during the y ear s he had c ustody of the victim there wer e
never any problems, and that, at the time of the ra pe, the victi m was li ving w ith her aunt a nd had been doing so for a month. The victim ’s gra ndmother also was e x pecte d to testify that the victim’s state me nt t ake n b y

the po lic e wa s inc on sis te nt wi th the la ng ua g e the vic tim he rs e lf us e d at th e tim e to r e fe r t o h e r p ri vate are a s. Th e pe tit ion e r state d tha t “ [t]he wi tne sse s’ te sti mon y wa s e xpe c te d to touch on seve ral more issues than set out in this section of the brief, but since the re w as no prof fer allowed, what the witnesses’ testimony would have be en is speculative.”

Following the ana ly sis set forth in Alley , this Court m ust determine whe ther the e x cluded evidenc e wa s obviouslyincompetent or irr eleva nt so as to allow the denial of the offe r of pr oof. Alley , 882 S.W .2d at 817. We c onclude that the excluded testimony is not obviousl y

incompetent or per se irre levant bec ause the testimonywas dire ctly related to the p etitioner’s inef fec tive assistance claim. The petitioner contends that Counsel was ineffec tive beca use he advised pe titioner to ple ad g uiltyafte r fa iling to investig ate the c rime and inter view key witnesses, so the testimony of the victim a nd the victim’s gr andmother w as re levant to show what Counsel would have discove red had he interviewed the se witnesses. The testimonyof t h o s e wi tnesses may well establish that Counsel was ineff

ective be cause of his failure to properly investigate the crime befor e advising the pe tit ion e r t o p le a d g uil ty

. Sin c e the te sti mon y is no t ob vio us ly inc omp e te nt o r i rr e le va nt, the po stconviction court should have allowe d counsel to make the requested offers of proof. Absent a r ecor d of the propose d testimonyfrom the two witnesse s, we a re unab l e t o s ay t hat the exclusion was ha rm le ss.

Th e po st- c on vic tio n c ou rt a lso e xclu de d th e me dic a l r e c or ds of th e vic tim ’s vis it t o L eB onheur Children ’s Hospi tal on J une 18, 1999, bec ause it found that the me dical re cords we re irrele vant. We believe the post-con v i ct ion court abuse d its discretion by excluding the medic al

reco rd s b ec au s e the r ecor ds are rele vant to show what Counsel would have discovere d had he conducte d a proper investigation of the crime. A ppare ntly , the re cords indicate that the victim made alleg ations of sexual abuse ag ainst a p er s o n i n o ne of thehouseholds listed in counsel’s notes. The p e t i t i o n e r wa s i n jai l a t th is t ime . B a se d u po n th e inf orma tio n c on ta ine d in the me dic a l r e c or ds
, Counsel may

have a dvised the petitioner diff ere ntly reg arding the decision to either plea d g uiltyor g o to trial. There fore , we c onclude that the post-c onv i ct i o n court e rre d by excluding the medic al

re c or ds

.
Conclusion

We conclude that the petitioner is e ntitled to a new hearing in order to de termine whe ther he

rec eived ine ff

ec t i v e assistanc e of c ounsel. We reve rse the post-c onviction court’s judg ment and-7-

re ma ndthe c a se to the po st- c on vic tio n c ou rt fo r a ne w h e ari ng . A t th e new he ari ng , th e po stconv i ct i o n court should admit the testimony of the pe titioner’s two witnesses and the victim’s medical r ecor ds. Should t he court exclude certain portions of t he testimony , offe rs of proof shall be allowed in ac corda nce w ith Tennessee Rule of Evidenc e 103. The post-c onviction court shall allow the parties to introduce proof or ar g ue both as to def

iciency and prejudice , and the post-c onviction court shall make further

finding s as to both.

____________________________________ J OHN EV ERETT WI LL I AMS, J UDGE