### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Se pte m be r 16, 200 8 S es sio n

HOME R A LSON MA DD IN, III v. STA TE OF TEN NES SEE

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2003-A- 393 Steve D ozier , Judge

No. M2007- 02708-CCA -R3-P C - F iled October 27, 2008

The pe titioner, Homer Alson Maddin, I I I , appea ls the Davidson C ounty Criminal Court’s dism issal of his 2007 petition for post-conviction re lief in which he had challeng ed his four 2004 jury -imposed convictions of ag g ravated rape

. This c ourt aff irmed the convictions on November 1, 2005. Se e Sta te v. Home r Alson Maddin, III , No. M2004-02298-CCA-R3-CD (T enn. Crim. App., Nashville, Nov. 1, 2005), perm. app. de nied (T e nn . 2 00 6) . T he pe tit ion e r’ s c ouns e le d p e tit ion ra ise d v ari ou s c la ims of the ine ff e c tiv e a ssi sta

nc e of tr ia l and a pp e llate c ouns e l. O n a

pp e a l, t he pe tit ion e r c la ims that hi s tr ia l c ouns e l wa s in e ff

e c tiv e in n e ith e r c omm

un ic atin g wi th t

he pe tit ion e r n or

pr e pa ri nghim fo r t ri a l, failing to expl ain the potential punishment the petitioner fac ed, failing to communicate a plea of fer from the State, f

ailing to investig ate the c ase, f ailing to a dequate ly

cross-e x amine witnesses, fa iling to properly

impeach State w itnesses, and failing to obje ct to imprope r prosec utorial argument and to the use of c erta in evidence

. The petiti oner also claims that his appellate counsel wa s ineffe ctive in f a ili ngto r a ise c e rt a in i ssu e s o n a pp e a l. We a ff

ir m th e or de r o f t

he po st- c on vic tio n c ourt

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

J A M ES C UR WO OD W I TT , J R ., J
., delivere d the opinion of the court, in w hich R OB E R T W. W EDEMEYER

and J.C. M C L IN , J J ., joined.

B r e t tM

. G i p s o n , N a s h v i l l e , T e n n e s s e e , f o r t h e a p p e l l e e , H o m e r

A l s o nM a d d i n , III

. Robert E. Cooper, Jr., At t o rn ey Gene ral a nd Reporter ; Eliz abeth B . Marne y , Assistant Attorney Gene ral; Victor S. Johnson I I I , District Attorney Gene ral; and A my

Eisenbec k, Assistant District Attorney Gene ral, for

the appe llant, State of Tenne ssee.

OP IN ION

The fa cts underly

ing the petitioner’s c onvictions were revie wed by this court in the petitioner’s dire ct appe al. The e vidence at trial showed that the victim, who was 19 y ear s old at the tim e of the of

fe ns e s, ha d kno wn the pe tit ion e r fo r a lon g tim e and ha d da te d him br ie fl y in t he pa st. The victim ca lled the petitioner and asked him to help her g et some “pills.” Homer Alson Maddin,-2-

III , slip op. at 2. To acc omplish t his, the victim followed the petitioner t o his fathe r’s house, w here the petitioner made some telephone calls to loc ate drug s. Ultimately , the victim took the petitioner to his mot her’ s house. Id. , slip op. at 2.

Acc ording to the victim, once they enter ed the apar tment, the [petit ioner] had a brief argument with his mother, the n ushere d the victim i n t o a bedroom a nd left her

alone. When the [petit ioner] r eturne d to the bedroom, he “close d the doo r a n d got

e xtre me ly c los e ,” tr y ingto k iss he r a

nd a sk inghe r t o h a ve se x with him. The victim t es t i fi ed that she r efuse d and re minded the [petit ioner] that she had a boy friend. The victim c laimed t h at s he
tr ie d to le a ve , and the [pe tit ion e r] thr e w he r o n th e be d, pu t a kn if e to her throat and t old her “not [t o] make any noises” bec ause she did not “wa nna g et hurt.”

The v ic ti m e xp la in e d

th a t t h e [p e ti ti o n e r ] th en
remove d her shor

ts, “used his tong ue” on he r “pr ivate ar ea” then forc ed her to “ have sex with him.” The victim testified that she wa s “silently cry ing the whole time” a

nd beg g ed him to leave. When the [petit ioner] was finished, the vic tim put back on her shor t s an d g ot

rea dy to leave. T he [petitioner] then forc ed the victim to perf orm oral

sex on him. After

comply ing f

or a f ew se conds, the [petitioner] then pe ne trated the vic tim ’s va g ina wi th h is f

ing e rs and

fo rc e d h e r t o “have sex wit h him ag ain.” The victim testified t hat t he [petitioner]

e ja c ulate d o n b oth

oc c a sio ns and

that th e [pe tit ion e r] h a d a kn if e in his hand the entire time.

The [petitioner’s] version of the fa cts diffe red signific antly

fr o m t h at offere d by

the victim. The [petitioner] maintained that the victim telephone d him looking for pills. The [petit ioner] proposed th at they meet at a

local cine ma so that the victim could follow him to his f ather ’s house. The victim . . . met the [petit ioner] and fo llowed him to his father’s house . Once at the ho us e , th e [pe tit ion e r] mad e se ve ra l phon e c a lls , try ing to l oc a te so me pills for the victim. Accor ding to the [ petitioner], the vi ctim offer ed him sex in ex chan ge fo r p ill s. Th e thr e e the n le ft the pa rt y to g o to th e h o m e o f t he [petitioner’s] uncle to try to find drug s. Having no
succe ss, the t hree went to another location, ag ain attempting to find pills or marijuana.

T h e [p e ti ti o n e r ] t e s ti f

ie d th a t d u r in g th e

. . . s e ar c h [] fo r d ru g s, the vic tim wa s “ hu g g ing ” on the [pe tit ion e r] and re pe a te dly offe red to have sex with him if he could g et her some pills. After-3- visiti ng sever al locations trying to f ind pills
, [ t h ey ] returned to the [petit ioner’s] fathe r’s house to m ake more phone c alls. The [ p et i t i o n er] claims that, at that time, the victim asked his father for pil ls a nd a lso of fe re d him se x in exc ha

ng e fo r dr ug s. I n re sp on se to the a c tio ns of the vic tim
, the [pe tit ion e r] te sti fi e d that his nie c e , Juli e Maddin, g ot into an argument with the victim and pushed her down, causingthe victim to bleed from the ne ck and e lbow.

After the alter cation, the [petiti oner] . . . asked the victim to take him back to hi s mother’s apa rtment. When they

arr ive d, the [pe tit ion e r] c la ime d th a t the vic tim c a me int o the ho us e wi th him and a g a in of

fe re d to sle e p wi th him if he c ou ld g e t he r s ome pil ls. Ac c or din g to t

he [pe tit ion e r], the vic timbe g an “ ru bb ing ” on his le g and the n “ wo rk e d h e r w ay do wn” and “ sta rt e d r ub bin g ” on

his pe nis . The [pe tit ion e r] cla ime d tha t the vic timun bu c kle d h is p ants , rubbed his pe nis a

nd took of

f her clothes. The [petit ioner] cl aimed that th e v i ct im was not only a willing pa

rticipant, but also the ag g ressor during the encounte r. The [petitioner] admitt ed that he a nd the vic tim ha d s e x an d th a t he e ja c ulate d o n th e be d, the n th e vic tim

a sk e d h im t o r oll ov e r s o th a t sh e c ou ld “ g e t on top .” At that po int
, the [pe tit ion e r] s ta te d tha t he and the vic timha d s e x for

a se c on d ti me and he e jaculate d ag ain on the bed. The [petit ioner] c laimed that the victim wanted to have sex for a third time, but the [petiti oner] told her she could g ive him a “blow job.” A ccor ding to the [p et itioner], the victim willi ng ly

complied.

Th e [pe tit ion e r] d e nie d th a t th e re we re any kn ive s in t

he ro om. He state d that when he and the victim left the a partment, t hey

wer e ho ldi ngha

nd s.

Id. , slip op. at 2-3.

I n the post-conviction evide ntiary hear ing, the petitioner testified that he wa s a “slow lear ner” and had failed to earn a “ GED” afte r four y ear s of schooling at “River B end.” H e testified that tr ia l c ouns e l vi sit e d h im thr e e or fo ur tim e s p rior to tr ia l and

that, o n th os e oc c a sio ns , h e tol d counsel that the vic tim’s injuries and her ble eding resulted f rom a fig ht with the petitioner’s niec e and that a washc loth be aring the victim’s bloodstains would have established the orig in of t he injuries and blood. The petiti oner testified that when he arr ived at his mother’s house on the eve ning of the c rimes, he made a number of telephone calls to “buddies.”

The pe titioner testified that counsel ne ver e x plained the e lements of ag g ravated ra pe

and ne ve r tol d him that he ha d the op tio n no t to te sti fy a t tr ia l. He te sti fi e d th a t he “ did n’ t w a nt t o testify ” at trial beca

use, he said, “I ain’t educated well enoug h.” Ne verthe less, he believe d that he-4-

was c ompelled to testify . The pe titioner denied that c ounsel informed him about the pote ntial punishment he fac ed or that he could re ceive consec utive sentenc es. H e t es t i fi ed that he “ne ver hear d [about] a plea .” He testified that, had he known that he c ould rec eive co n s ec u t i v e 25-y ear sentenc es, he w ould have “ took the fiftee n.” The petitioner t estified that, to his knowledg e, counse l did no t vi sit the sc e ne of

the c ri me s.

Th e pe tit ioner tes tif

ie d th a t he tol d c ouns e l th a t he wa nte d h is s te pb ro the r, Da

vid De c ka rd , to te sti fy

a t tr ia l. H e state d th a t he wa s unawa re that a sen te nc inghe ari ngwo uld be he ld following the g uilty

verdic ts and that counsel did not discuss with him any strateg y for the se ntencing hear ing. H e testified that he g ave a n uncounsele d interview to the pr esente nce inve stigator.

The pe titioner denied that counsel tol d him that a sample of t he victim’s DNA ha d been f ound on a knife

.

On cr oss-examination, the petitioner admitted that he wa s not ch ar g ed with the of fe ns e s a g a ins t th e vic timun til a y e ar a ft e r the e ve nts and that tr ia l c ouns e l wa s no t e ng a g e d unti l that time. He admitted that he did not know what beca me of the washcloth. The petitioner c laimed that independe nt proof of the telephon e calls he made would have established that the victim was look in g f o r dr u g s

. H e f

u rth e r a d mi tt e d th a t D a v id

D e c k ar d ’ s p r o p o s e d

te s ti mo n y

w o u ld h a ve duplicated other evidenc e hear d by the jury . The pe titioner testified that he would have take n a plea of fe r o f t we nty y e ars to s e rv e at 10 0 p e rc e nt.

Metropolitan Nashville (Me tro) police of fice r Warre n Flea

k testifi ed in the

e vid e nti ary he ari ng that he inv e sti g a te d th e c ri me sc e ne and c oll e c te d e vid e nc e inc lud ingbe d s he e ts, a bedspr ead, pillows, clothing , and two knives. He testified that the it ems wer e not used a s evidenc e

a t tr ia l and

that th e po lic e de pa

rtme nt h a d d e str oye d th e m.

Metro dete ctive Ke nt McAliste r testified that he f

ound no blood when he inve stigated the cr ime scene . The de tective r eca lled that t h e p et i t i o n er’ s counsel re quested that the knive s be tested for the pre sence of biolog ical mater ial. He testified that the test reve aled mere ly the pre sence of a substanc e of huma

n orig in.

Tenne ssee Bur eau of I nvestig ation fore nsic scientist H unter Gre en testified that she tested the knives in question. S he found no blood but found some othe r biolog ical mater ial of human orig in.

The petitio n e r ’ s tr ia l c o u n s e l t e s ti f ie d in th e e v id e n ti ar

y h e ar in g th a t h e h a d

b e en pr a c tic ing law sin c e 19 80

. He me t wi th the pe tit ion e r a t th e ja il f our t o s ix time s and

me t w ithhim twice a fter he was re lease d on bond. Counsel testified that he wa s hired by the petitioner’s f

ather and wor ked with the fathe r and other family members “in g ather ing e vidence .” Counsel testified that he wa s awa

re of the petitioner’s learning disability and int ellige nce quotient score of 75. He testified that he tol d th e pe tit ion e r w hat th e pr os pe c tiv e wi tne sse s in c lud ingDa vid De c ka rd wo uld say a t tr ia l. He told the petitioner a

bout the test results on the knife.-5- Counsel testified t hat t he petiti oner’ s initial posture in the ca se wa s that he wa s not g uilty and that no knife had bee n at the scene

. Counsel te stified that the discovery of the biolog ical materia l on one of the knives da mag ed the de fense ’s strateg y of conse nsual sexual activity . Counsel could not rec all whether

he talked to the petit ioner about his right not to testify , but he opined that the on ly wa y to a dv ance th e pet ition e r’ s d e fe ns e in a “ he sa id, sh e sa id” sc e na ri o w a s f or him to te sti fy . O the rw ise , “ the jur y wo uld no t hav e he ard his ve rs ion of the e ve nts .” Couns e l te sti fi e d th a t, “fr om day one,” he and the pe titioner operated from the assumption that the petitioner would testify

as a me ans of a dvancinghis theory of def ense.

Couns el t estified that he c onvey ed to the petitioner the State’s 20-y ear plea of fer ; h o w e v e r , t h e p e t i t i o n e r

w a s “ p r e t t y a d a m an t ” t h a th e w a s n o tg u i l t y.

Couns e l a g re e d th a t he did no t vi sit the c ri me sc e ne but st a te d h e sa w n o r e a so n to do so beca

use he ha d been e ng ag ed to re prese nt the petiti o ner “ long a fter the event.” He testified that at trial he use d a diag ram of the apar tment where the offe nse occ urre d.

Counsel testified that he did not subpoena D avid Dec kard be cause , prior to trial, he

me t wi th Mr . D e c ka

rd and the pe tit ion e r’ s o the r f

a mil y me mbe rs wh o c ou ld s e rv e a s w itn e sse s, a ll of whom agr eed to be present at trial without the behest of a subpoena. When it develope d that Mr. De c ka rd wa s un ava ila

ble fo r tr ia l, c ouns e l e le c te d to pr oc e e d b e c a us e the pe tit ion e r’ s f

a the r c ou ld provide the same information as c ould have be en re lated by Mr. Dec kard.

Counsel further

testified t h at he met with the petitioner at least once prior to the

se nte nc inghe ari ngand

ob ta ine d th e pe tit ion e r’ s sig natur e on a re le a se fo r his me nta l he a lthre c or ds

.

Fo l l o wi n g t h e h ea ri n g, t h e p o s t -c o n v i ct i o nco u rt en t er edex t en s i v e w ri t t en fi n d i n gs of fa ct and c onclusions of law. I t acc redited trial counsel’s te stimony over that of the petitioner a nd held that counse l had ade quately met with the petit ioner prior to trial, communicated the State’s plea of fe r t o th e pe tit ion e r, pr op e rl y inv e sti g a te d the c a se and pr e pa re d it fo r t ri a l, a nd e ff e c tiv e ly c ro ssexamined prosecution witnesses. The court de termined that the pe titioner failed to esta blish any defic iency

in counsel’s pe rfor

mance b y fa i l ing to obtain the w ashcloth and/or the rec ords of the peti t i o n er’ s telephone c alls on the nig ht of the off enses. The court he ld that trial counsel did not trammel the pe titioner’s rig ht to not testi fy at trial; the cour

t stated that, as t h e trial c ourt in the petitioner’s c ase, it “a lway s g ives defe ndants the choic e betwe en testify ing and not te stify ing.” The court fur ther he ld that the petitioner wa s not prejudice d by counsel’s failure to fur ther impea ch the victim, by

failing to call Mr. De ckar d to testify , by failing to present – or

o t h er wi s e o b

j ect to –

c e rt a i nt an g i b l e e v i d e n c e , an d b y f a i l i n g t o o b

j e c t t o t h e p r o s e c u t o r ’ s f

i n a l ar g um e n t

. S p e c i f

i c a l l y, the c o u rtd e t e r

m i n e d t h a tt h e j u r

y h e ar d e v i d e n c e o f

t h e v i c t i m ’ s b a d

c h ar a c t e r an d n e v e rt h e le ss

a c c re dit e d h e r t e sti mony

. Al so , the c ourt fo un d th a t th e pr op os e d te sti mony of Mr . D e c ka

rd wo uld have be en cumulative to that of t he petitioner’ s father . The post-c onviction court dete rmined that any libert i es taken by

the prosec utor during final ar g ument wer e cur ed by the trial cour

t’s instructions. The post-conviction cour t also held that t h e p et i t i o n er had failed to e stablish the-6-

ineffe ctive assistanc e of a

ppellate c ounsel. Ba sed upon it s f in d in g s a n d h o ldings, the post-c onviction court de nied re lief.

The pe titioner filed a timely notice of a

ppeal f rom the cour

t’s order

. The post-c onv i ct i o n petitioner is oblige d to establish his claims by clea r and convincingevidenc e. See T.C.A. § 40-30-110( f) ( 2006). On appea l, the appellate court a ffor ds the post-conviction cour

t’s finding s of fa ct the weig ht of a jury verdic t, and these f

indings a re c onclusive

on appea l unless the evidenc e pre ponderates ag ainst them. He nle y v . S tat e , 960 S.W .2d 572, 578-79 (T e nn . 1 99 7) ; Ba te

s v . S tat e , 973 S.W .2d 615, 631 (Tenn. Crim. App. 1997)

.
The Six th Amendment to the United States Constitut ion and Article I , section 9 of the Tenne ssee Constitution bot h require that a def endant in a c riminal case rec eive e ffe ctive assistance of counse l. Se e Ba x te r v. R os e , 52 3 S.W. 2d

93 0 ( Te nn . 1 97 5) . Wh e n a de fe nd ant c la ims ineffe ctive assistanc e of c ounsel, the s tandar d applied by the cour ts of Tenne ssee is “[w]hether the advice g iven or the se rvice rende red by the attorney [i s] within the rang e of c ompetence demande d by attorney s in criminal case s.” Su mm e rli n v . S tat e , 607 S.W .2d 495, 496 (Tenn. Crim. App. 1980) (sec ond alteration in original).

I n Strickland v. W

ashington , the U nited States Supreme Court outlined the require ments nec es s ar y t o demonstrate a violation of the Six th Amendment rig ht to effe ctive assistance of counse l. Strickland v. W ashington
, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the pe tit ion e r m

us t sh ow that c ouns e l’ s pe rf or manc e fe ll b e low

an o bje c tiv e sta

nd ard of re a so na ble ne ss under pr evailing profe ssional norms and must de monstrate that counsel made err ors so serious that he was not functioning as “c ounsel” guara nteed by the Constitut ion. Id. at 687, 104 S. Ct. at 2064. Second, the pe titioner must show that counsel’s per formanc e pre ju d i ce d him and that err ors wer e so serious as to depr i v e the pe titioner of a f air trial, c alling into question the re liability of the outcome. Id. ; Henley , 960 S.W .2d at 579.

The reviewing court does not “sec ond g uess” tactical and strateg ic choice s pertaining to defe nse matters a

nd does not measur e a de fense attorney ’s re prese ntation by “20-20 hindsig ht.” Henley
, 9 6 0 S

. W

. 2 d

at 5 7 9 (q u o t i n g He lla rd

v . S tat e , 629 S.W .2d 4, 9 (Tenn. 1982) ). Rather , a cour t revie wing counsel’s pe rfor m an ce s h o u l d “eliminate the distorting eff ects of hindsig ht . . . [ and] evaluate the conduc t from counse l’s perspe ctive at the time.” Strickland
, 4 6 6 U

. S

. a t 6 8 9
, 10 4 S. Ct. at 2065. “The f

act that a particula

r strateg y or tactic failed or hurt the def ense, doe s not, standing alone, e stablish unr easona ble repr esentation.” Go ad v . S tat e , 938 S.W .2d 363, 369 (Tenn. 1996)

. On the other

hand, “de fer ence to matters of strateg y and tactica l choices a pplies only

if the choic es
are informed one s based upon a dequate prepa ration.” Id.

To establish prejudice
, a party claiming ineffe ctive assistance of counse l must prove a “r easona

ble proba bility that, but for counsel’s unprofessional err ors, the re sult of the proce eding would have be en diffe rent.” S tr ic k land
, 46 6 U .S. a t 69 4, 10 4 S. Ct. a t 20 68 . Are a so na ble probability

is one sufficie nt to undermine conf idence in the outcome. Id.-7- I n the pre sent ca se, nothing in the rec ord counte rv ai ls the post-conviction court’ s finding s, and we aff

irm the denial of post-c onviction relief. T he pet i t i o n er’ s complaints about counsel’s la ck of c ommunication and pre paration were expressed only by him and wer e contr adicted by c ouns e l, w ho se te sti mony the po st- c on vic tio n c ourt a c c re dit e d. Th e pe tit ion e r s imp ly fa ile d to establish other c laims by

clea r and c onvincing evidenc e. F or i nstance , the petitioner fa iled to show that he wa s prejudice d by the allege d inadequate chain of custody of t he knife used by the State as

e vid e nc e

. Al so , the pe tit ion e r f a ile d to de mon str a te pr e

jud ic e fr om c ouns e l’ s f

a ilure to a dv ise him of his ri g ht not to te sti fy a t tria l, es pe c ia lly in lig ht of the po st- c on vic tio n co ur t’ s f ind ingthat, at tr ia l, the cour t advised the pe titioner of his options with respect to testifying. A lso, the petitioner fa iled to e sta bli sh in effect ive a ssi sta

nc e a s a re su lt o f c ouns e l’ s f

a ili ngto o bta in t

he wa sh c lot

h, the c a ll

rec ords for his pa

rents’ r esidential telephone s, an d / o r fur ther testing of the knife and of othe r materia ls from the crime sce ne. The petitioner’s e vidence did not belie the post-conviction cour t’s deter minations that trial counsel ade quately cross-e x amined State witnesses a nd competently

soug ht to i mpe a c h th e vic tim

.

I n this vein, the petitioner fa iled to establish ineffect i v e assistanc e as a result of counsel’s f

ailure to discove r that the victim had be en arreste d for forg ery and had confe ssed to that

c ri me sh or

tly be fo re the pe tit ion e r’ s tr ia l. T he pe tit ion e r f a ile d to sh ow th at couns e l’ s f a ilure to dis c ov e r t he arr e st fo r – or

the c on fe ssi on

to – fo rg e ry wa s d e fi c ie nt p e rf

or manc e or that th e a rr e st its e lf pr ov ide d a

ba sis fo r i mpe a c hme nt.

F ur the rm or e , th e re c or d d oe s n ot s ho w that th e pe tit ion e r w as pre jud ic e d b y

his

c ouns e l’ s fail ure to ob

je c t to the pr os e c uto r’ s c los ingargume nt, e sp e c ia lly in v ie w o f t

he po stconviction cour

t’s deter mination that its jury

instructions adequately

attenuate d any

liberties the prosec utor may

have taken.

The pe titioner complains about his appellate counsel re lated to that counse l’s failure to raise on a

ppeal the issue of

trial co u n s el ’s lapses in pre paringthe petitioner for the sentenc ing hear ing. We cannot sanction as i neff ective a ssistance a

ppellate c ounsel’s fa ilure to raise on direc t appea l the issue of trial counse l’s ineffe ctiveness dur ing the sentenc ing proce eding s. This court has repe atedly

said that “[r]aising the issue of ine ffe ctive assistanc e of c ounsel on direc t ap p ea l i s ‘a prac ti ce fr aug ht with peril.’” See
, e.g. , State v. Mosley , 200 S.W .3d 624, 629 (Tenn. Crim. App. 2 0 0 5 ) ( qu o t i n g State v. Sluder , No. 1 2 3 6
, slip op. at 16 (Tenn. Crim. App., Knoxvil le, Mar. 14, 1990))

. E v en if the issue of trial counsel’ s perf ormanc e in the sente ncing proce eding s had bee n raised a s an issue of inef

fec tive assistance in this post -convic tion procee ding, we would fa il to see that either de ficient pe rfor mance or pre

judice wa s shown by

a pre pondera

nce of the evidenc e.
All in all, the rec ord supports t h e post-conviction cour t’s finding s and conc lusions of law, a nd for that r eason, w e af

firm that cour

t’s denial of post-c onviction relief.

___________________________________ J AMES CURW OOD WI TT, J R., J UDGE