IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 14, 2010 Session

CHARLES A. WALKER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Montgomery County

No. 40100505 Michael R. Jones, Judge

No. M2010-00449-CCA-R3-PC - Filed March 8, 2011

A Montgomery County jury convicted the Petitioner, Charles A. Walker, of two counts of

rape of a child and one count of aggravated sexual battery, and the trial court sentenced him

to an effective sentence of twenty-eight years, at 100%, in the Tennessee Department of

Correction. The Petitioner appealed his convictions, and this Court affirmed his two rape of

a child convictions but reversed and remanded for a new trial the aggravated sexual battery

conviction. State v. Charles A. Walker, No. M2005-00165-CCA-R3-CD, 2006 WL 3313651,

at *1 (Tenn. Crim. App., at Nashville, Nov. 15, 2006), perm. app. denied (Tenn. Mar. 12,

2007). The Petitioner filed a petition for post-conviction relief, in which he alleged he

received the ineffective assistance of counsel. After a hearing, the post-conviction court

dismissed the petition. On appeal, the Petitioner contends that: (1) his trial counsel was

ineffective; (2) the prosecutor committed several acts of prosecutorial misconduct at trial; (3)

his convictions should be reversed based upon “cumulative error and bias”; and (4) his

sentencing wasillegal. After careful review, we affirm the post-conviction court’sjudgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER,J., delivered the opinion of the Court, in which DAVID H. WELLES

and J.C. MCLIN, JJ., joined.

Kathryn B. Stamey, Clarksville, Tennessee, for the Appellant, Charles A. Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; John W. Carney, Jr., District Attorney General; Arthur F. Bieber, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts
A. Background

This case arises from the Petitioner’s sexual interactions with his stepdaughter, who

was less than thirteen years old when the offenses occurred. The Petitioner was originally

indicted for four counts of rape of a child and two counts of aggravated sexual battery. We

summarized the proof presented at trial in our opinion on his direct appeal as follows:

State’s Proof

The victim testified that she was born on September 9, 1988, was

currently in the eighth grade, and had lived for the past two years with her

father and stepmother in Riverton, Illinois. She said her mother married the

defendant in 1998 when she was ten years old, and from 1998 until 2001 she

lived with the defendant, her mother, and her younger sister, C.M., at 315

Barkwood Court in Clarksville. The victim testified that the defendant “was

making [her] have sex with him” during the time she lived at the Barkwood

Court residence. She said the defendant began sometime in 1999 by touching

her breasts and vagina over her clothing but then progressed to touching her

private parts under her clothing. The victim stated that the inappropriate

touching also involved placing her mouth on the defendant’s penis and rubbing

his penis with her hand. In addition, she said that the defendant penetrated her

vagina with his penis on numerous occasions and in various locations

throughout the house. The victim testified: “He stuck his penis in my vagina

in the living room on the floor and on the couch, and then on the bathroom

floor, in his bed, or the hot tub.”

The victim said that the intercourse occurred either in the early

mornings, after her mother had already left for work and while C.M. was still

asleep in her bedroom, or in the afternoons, before her mother or C.M. arrived

home. She stated that her mother worked in Nashville and left for work at

5:30 a.m. and returned about 4:00 p.m. During this time period, the defendant

was a carpenter and worked “[w]henever he got a call.” The victim testified

that when she entered middle school, she rode a different school bus from her

sister, who was two years younger and in a grade below her in school. The

victim said her school bus brought her home approximately thirty minutes

before C.M. arrived home.

The victim was unable to remember when the defendant first penetrated

her vagina but recalled that the last time occurred in the living room of the

Barkwood Court residence on May 28, 2001, when she was twelve years old.

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She said she remembered the date because it was within a week of when her

father came to pick her up for her summer visitation with him and his wife in

Illinois. The victim testified that her mother was at work and her sister was

asleep in her bedroom. She stated that the defendant placed a towel on the

floor, laid her down on the towel, stuck his penis inside her vagina, and moved

up and down until “he told [her] he had come.” She said that the defendant did

not use a condom and had told her that he “had some kind of surgery so he

couldn’t make babies.” She testified that when the defendant had finished, she

covered her vagina with a towel, went to the bathroom, and tossed the towel

in the dirty clothes hamper.

When prompted, the victim also recalled that the defendant had

penetrated her vagina with his penis in the living room of the residence during

the school spring break before her father picked her up for her 2001 summer

visitation. Asked what she remembered about that event, she testified: “The

week of Spring Break, my Mom would be at work and he [the defendant]

would wake me up about 5:30 in the morning and he would make me have

intercourse with him and then my sister would be asleep in her bed.” The

victim said that the intercourse occurred on the living room floor but that a

towel was not used. After having her memory refreshed with her prior

statement, the victim also recalled that it “was in January” when the defendant

first started touching her. When asked what kind of touching occurred at that

time, she said that it was touching over her clothing.

The victim testified she was afraid to tell anyone about the abuse

because she “thought it was [her] fault and [she] would get yelled at.” She

stated that her mother eventually found some sexually explicit emails that she

and the defendant had been exchanging while she was visiting her father in

Illinois. The victim explained that she exchanged the emails with the

defendant “[b]ecause of the way he was treating [her] when [she] was with

him, and [she] felt that just to make him happy, it would make him do it less

and less.” She said her mother deleted the emails but told her mother, the

victim’s maternal grandmother, about them. She said that in response, the

victim’s grandmother, who lived near the victim’s father in Illinois, took the

victim to a local park and began berating her:

When my Mom found out, she told my Grandma and I was up

with my Dad in Illinois and it was around my sister’s birthday,

July, and my Grandma she picked me up and she said we were

going to go shopping and she took me to one of the parks there

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and she was sitting there, yelling at me, telling me that I was a

liar, saying it was all my fault.

The victim testified that the next adults who questioned her about the

abuse were her father and stepmother, a police detective she spoke with by

telephone, and an Illinois social worker her father took her to see. She said she

was scared because she thought it was her fault and she would get into trouble.

She also said that she and her mother did not have a good relationship and were

not close.

On cross-examination, the victim acknowledged that she told Karen

Morelock, the Illinois social worker who interviewed her on July 5 and July 19,

2001, that she thought she was the one who had deleted the emails, that she did

not do anything with her mouth to the defendant, and that the sexual touching

started in January 2000, as opposed to January 1999 as she stated in her direct

examination testimony. At defense counsel’s request, the victim read the

following portion of her July 19 statement aloud: “I wouldn’t do anything with

my mouth to him, but he would lick my genital area.” She agreed that the

following statements in her July 19 statement were true: “It would be everyday

beginning in January 2000”; “He would lick me, I had sex with him everyday

for over one year”; and “[E]very once in a while, we would have sex one time

in the morning and then when I would get home from school.” The victim also

testified, however, that her statement on direct examination that the abuse

began in 1999 was true. She said the defendant first began touching her in

January 1999, when she was ten years old and within a few months of his

October 1998 marriage to her mother. The victim identified a letter she had

written to her father and stepmother stating that she wanted to live with them

when she turned thirteen, and she acknowledged that she was frustrated when

her mother told her that the decision of where she would live was not solely up

to her.

On redirect examination, the victim testified that she did not know how

many times she had sexual contact with the defendant from the time she was ten

until the last episode that occurred on May 28, 2001. She agreed that there

were times when she rubbed the defendant’s penis, times when he ejaculated

and times when he did not, and times when she touched him with her mouth.

She said she could not remember every instance of sexual contact because it did

not happen every day. On re-cross examination, she testified that when she told

Ms. Morelock that “[i]t would be everyday beginning in January of 2000,” she

was referring to the sexual touching, not intercourse. She also explained that

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she had told Ms. Morelock that the sexual touching began in January 2000

because she thought 2000 was the year that she was ten.

Detective Alan Charvis of the Clarksville Police Department testified

that he was assigned to investigate the case on July 5, 2001, a few days after the

defendant’s two adult daughters, Cindy Morgan and Althena Walker, reported

the defendant to the police. He said he asked Morgan to record her next

conversation with the defendant and provided her with a tape recorder but did

not tell her what to say. He testified he subpoenaed the records of WebTV, the

internet company that provided email service to the defendant’s home, but was

unable to retrieve any emails between the victim and the defendant. He said

that he did not find any emails during his search of the defendant’s home or

traces of semen in the home, despite using a light source to search the living

room carpet, couches, and other surfaces. He testified that his understanding

was that there was no computer associated with WebTV and therefore no

permanent record of deleted emails. On cross-examination, he acknowledged

he made no attempt to search for deleted emails on the hard drive of the

computer the victim had used in Illinois.

The defendant’s younger daughter, twenty-four-year-old Athena Dawn

Walker, testified that the defendant married the victim’s mother after his first

wife, the witness’s mother, passed away in 1996 from brain cancer. She said

that on June 30, 2001, she received a telephone call from her older sister, Cindy

Morgan, which caused her to go to Morgan’s house to discuss something

Morgan had heard about the defendant. The next morning, the defendant

telephoned her and, without mentioning specifics, began apologizing for what

he had done. She said she asked the defendant, “[H]ow long has it been going

on?” meaning how long had he been having sexual relations with the victim.

She stated that he told her that it had been going on for six or seven months and

that he was going to seek counseling.

The witness testified that after her phone conversation with the

defendant she went first to her sister’s home to discuss the situation further and

then to the defendant’s home, where she found that neither the defendant nor

his wife were willing to talk with her about the issue. The next day, she

telephoned the defendant and told him that she thought she needed counseling

to handle his revelations. She said the defendant asked her not to see a

therapist, telling her that he would be arrested if she spoke about what had

happened. She testified the defendant explained to her how he was going to

take care of the problem: “He told me that he was going to talk to a therapist

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about feelings that he was having, he wasn’t going to say that he acted on them,

he was just going to try to go get some counseling to try to help him[.]”

The witness testified that when she later called the defendant, he told her

he had set up an appointment to see a therapist in three weeks. She said she

was upset and told him that she did not want to have to wait three weeks to talk

to someone. The defendant repeated that she would cause him to be arrested,

and, in the background, she heard the victim’s mother yelling that if she talked

to a therapist it could cause her to lose custody of her daughters. The witness

testified that after hanging up the phone she went directly to her sister’s home,

where she and her sister decided to go to the police.

On cross-examination, the witness testified that the defendant was a

great father, that he never did anything sexually inappropriate to her, her sister,

or her friends, and that she had never suspected him of “doing sexually

inappropriate things.” She acknowledged that she had stayed for a day or two

in the Barkwood Court residence, her childhood home, after the defendant

married the victim’s mother, but the victim’s mother “got frustrated” with her,

and the defendant asked her to leave. She denied that this had caused a “bad

falling out” between her and the defendant. She also acknowledged that the

defendant never directly admitted to her that he had engaged in any sexual act

with the victim.

The defendant’s older daughter, thirty-one-year-old Cynthia Jean

Morgan, testified that the defendant called her at the end of June 2001 to tell

her that he was in trouble because he had been having sexual relations with the

victim and his wife had found out about it. She said the defendant divulged “in

a round-about-way” that he had been having sexual relations with the victim,

but she did not ask him any detailed questions about what kind of sexual

relations he meant. She stated that the defendant told her that his wife had

learned about the relationship after intercepting some email and that he feared

she was going to turn him in to the authorities. Morgan said that when she told

the defendant she thought he deserved to be punished for what he had done, he

replied that he would rather die than go to jail.

Morgan testified thatshe told hersister about the defendant’srevelations

later that day and that the following day the defendant called to ask her to stop

her sister from seeing a counselor. According to Morgan, the defendant was

concerned that he would be arrested if either she or her sister talked to a

counselor about what he had done. Additionally, during one of her subsequent

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telephone conversations with the defendant, she was able to overhear the

victim’s mother in the background expressing her concern that she would lose

custody of her daughters. Morgan said that on July 2 the defendant called her

again to tell her that if either she or Athena went to see a counselor, they would

deny that anything had happened. She testified that, later that same afternoon,

she and Athena discussed the issue and then went to the police station to report

the defendant.

Morgan testified that Detective Charvis contacted her a short time later

asking if she would tape-record a conversation with the defendant. She said she

agreed and on July 5, 2001, called and recorded a conversation with the

defendant and his wife. The tape recording of that conversation was admitted

as an exhibit and played before the jury. The transcript of the conversation,

also admitted as an exhibit, reads in pertinent part:

CINDY: The other day when we were over there, I asked you if

you were gonna get [the victim] help and you said, yes, you

would never deny her that but if Athena and I can’t even go get

help, how’s [the victim] gonna get help?

[DEFENDANT]: Not right now. When she get’s [sic] older and

ask[s] for it. I don’t think she’ll ask for it right now. You

understand what I’m saying.

. . . .

CINDY: I don’t know if a twelve year old knows to ask for help,

Dad. She may not realize what your [sic] doing to her is wrong.

[DEFENDANT]: Yes, she does realize that. She does realize

that.

CINDY: So she’s probably gonna think it[’]s okay for her to

sleep with [a] 50 year old when she’s 15 or 16.

[DEFENDANT]: No. No. No she’s not. Cause we’ve already

discussed it here and we’re gonna sit down and talk with her.

CINDY: I just don’t want her to think all this is her fault.

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[DEFENDANT]: I don’t either and we’re gonna let her know,

this is not all her fault. I know that. I don’t want her to feel like

it’s her fault. We’re gonna do it right, where she understands

what was going on was wrong.

. . . .

CINDY: I just feel like at 29 years old, I need professional help

to find out, after finding out that my Dad is a child molester. I

can’t imagine how a 12 year old would feel. I’m having a hard

time.

[DEFENDANT]: Try to take some heart, Cindy, to know that I

realize I made a mistake, it’s never gonna happen again. It’s

never gonna happen again. Please try and get some conciliation

in that. It will not happen again and I promise you that on my

soul.

CINDY: I’ve just been praying a lot about this.

[DEFENDANT]: I’ve been praying a lot too. I will be getting

back into church, somewhere. I mean I’ve got a lot of praying

yet to do. (pause) But she is not gonna think it is alright [sic]. I

mean she’s gonna know what we’ve done is wrong. She already

knows but we’re gonna reaffirm that.

On cross-examination, Morgan testified that the defendant was a good

and loving father to her when she was growing up and that he never did

anything sexually inappropriate to her or her friends. She acknowledged she

wrote in her statement to police that the defendant had “sexually touched” the

victim. She also acknowledged that she would have been upset even if he had

merely confessed that he was having sexual feelings toward a twelve-year-old,

as opposed to sexual relations. On redirect, however, she testified that she

would not have reported him to the police if she had understood him to say only

that he had sexual feelings for the victim.

Defendant’s Proof

The fifty-one-year-old defendant testified that he had lived in the

eleven-hundred-square-foot Barkwood Court residence for twenty-seven years;

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had been married to his first wife for almost twenty-five years until she passed

away on July 21, 1996, from brain cancer; had been honorably discharged from

the military in 1972; and had never been in trouble before the allegations arose

in the instant case. He said he had always maintained steady employment and

had gotten a job at Hobby Lobby after his release from jail following his July

5, 2001, arrest in the case. The defendant also testified that he had been a

member of the Hazardous Materials Team for the Montgomery County

Emergency Management Agency, delivered meals for Meals on Wheels, had

been a volunteer firefighter and had taught numerous classes at the Ashland

City Fire Department, and was a member of the Masonic Lodge.

The defendant testified he married the victim’s mother on Halloween

1998, and she and her two daughters moved from Illinois to live with him in his

Clarksville home. He stated that he had a good relationship with his wife, tried

to spend as much time as he could with her and her daughters, and assumed the

responsibility of seeing the girls off to school each morning after his wife had

departed for work. He said that as time passed and the victim became

interested in boys, he began to notice that she was starting to walk around the

house wearing only a towel and to dress and undress without closing her

bedroom door. He stated that when she persisted in her behavior, despite being

told by both himself and his wife that she should stop, he found himself starting

to have sexual thoughts about her. The defendant testified that he struggled

alone with his improper thoughts for six or seven months until his wife became

upset upon finding an email he had sent to the victim in which he told her that

he missed her, loved her, and needed her. At that point, he said, he confessed

his improper thoughts about the victim to his wife.

The defendant denied that he ever had sexual intercourse with the

victim, touched her inappropriately, or exchanged sexually explicit emails with

her. He also denied that he told his daughters anything other than he had been

experiencing sexual feelings for the victim. The defendant explained that in his

taped conversation with Morgan he had been referring to his perception that the

victim had been “throwing herself” at him, which was wrong, as were the

feelings that he was experiencing toward her as a result of her behavior. He

further testified that he was in an automobile accident in 1990 that injured his

spinal cord and ultimately rendered him impotent and that he was only able to

perform sexually by injecting himself with a prescribed medication that took

fifteen to twenty minutes to take effect. He said the only reason he could think

of for the victim to fabricate her allegations against him was that she wanted to

live with her father, instead of her mother.

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On cross-examination, the defendant testified that the victim knew he

had had a vasectomy because he had told her about it. He said that he believed

his daughters were jealous of the attention he gave his new wife and her

daughters. Although he acknowledged that he was a native English speaker,

the defendant insisted that the portions of his telephone conversation with

Morgan in which he stated that the things he and the victim had “done” were

wrong referred to her having walked around partially nude and his having had

sexual thoughts about her.

During his subsequent redirect and recross examination testimony, the

defendant identified his medical records relating to the treatment of his erectile

dysfunction, which were then admitted as an exhibit. The defendant

acknowledged that the records reflected there was nothing wrong with his

libido. He testified that he could not inject himself with the prescribed

medication more than once in a twenty-four-hour period because of the danger

of priapism, which was the condition of experiencing an extended erection that

required surgery to correct.

Kerri Ann Walker, the victim’s mother, testified she had a positive, open

relationship with the victim. She described the discussions she had with the

victim about puberty, adolescence, and sexuality and said that the victim knew

she could talk to her about anything. She testified that the victim never

complained to her about the defendant’s alleged behavior and that she never

saw anything to make her suspect there was anything inappropriate about the

defendant’s relationship with the victim. Mrs. Walker stated that she and the

defendant had sexual intercourse one to two times per month and that ninety

percent of the time the defendant had to inject himself with his medication in

order to perform. She said that, after the allegations arose in the case, she

checked and found nothing out of order in either the amount of the defendant’s

medication or the number of syringes in the house. She explained that this

factor, combined with the victim’s failure to tell anyone about the alleged

abuse, led her to disbelieve the victim’s allegations:

I have not found any proof-[the victim] never came to me

and said that anything happened. She never went to anybody else.

Her relationship with [the defendant] never changed. She was

always happy to see him. She-I didn’t suspect a thing. I didn’t

find anything. When I went to count the syringes, I didn’t find

any medication gone and he never said to me that anything

happened.

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Mrs. Walker said that the defendant confessed that he had been having

inappropriate feelings toward the victim after she confronted him about an

email in which he told the victim that he loved and needed her. She denied that

she ever deleted any “sexual” emails between the defendant and the victim.

She testified that whenever the victim got into trouble, she insisted that she was

going to live with her father when she turned thirteen, despite being told that

a change in custody would require that the family go back to court. Mrs.

Walker stated that the victim once told her that she “would do anything if she

could move with her father.”

On cross-examination, Mrs. Walker acknowledged that after she

discovered the defendant’s email, she called her mother, who was a legal

secretary, and asked her to talk to the victim. She denied, however, that her

mother warned her that in her experience the mother always loses custody when

her child has been molested while in her custody.

Several of the defendant’s friends, neighbors, and co-workers testified

on the defendant’s behalf, expressing their opinions as to his character and

veracity. Darryl McKissack testified that he had known the defendant for

almost three years, had grown to love him like a brother, and knew in his heart

that he was an honest person. Judy McKissack testified she was Darryl

McKissack’s wife, had socialized with the defendant and his wife, and believed

the defendant to be an “honest, hard-working man.” Emerson Russell Dowling,

Jr., the defendant’s neighbor, testified that he had known the defendant for

about twenty-one years and that he was “a good neighbor” and “a good friend.”

Mary Joyce Bumpus, another of the defendant’s neighbors, testified that she

had known the defendant since 1981 or 1982 and that he had always been

honest with her and her husband. Bumpus said that she and her husband

occasionally took the defendant’s stepdaughters to church, that neither child

ever disclosed to her that anything inappropriate was occurring, and that the

victim always appeared to be a happy, well-adjusted child. Jim Gasaway, the

defendant’s supervisor at Hobby Lobby, testified that the defendant was a very

honest person. Finally, Sidney Lee VanAntwerp, one of the defendant’s

co-workers at Hobby Lobby, testified that she thought the defendant was very

honest. However, with the exception of Gasaway, the witnesses testified on

cross-examination that they would not believe the defendant if he said he had

sexual feelings for a twelve-year-old girl.

Detective Alan Charvis, recalled by the defendant, acknowledged that

he did not employ the services of a computer forensic expert to attempt to

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recover any deleted emails. He further acknowledged that he found no

pornographic materialsin the defendant’s home and saw no signs that the carpet

or couch had recently been cleaned or replaced.

The victim’s younger sister, C.M., who was twelve years old at the time

of trial, testified that when she lived with the defendant at the Barkwood Court

residence her bedroom was the one furthest from the living room. She said the

only thing she could hear from the living room when her bedroom door was

open was the television set. C.M. stated that the victim never told her of any

problems she was having with the defendant and that she never suspected

anything improper was going on between them. On cross-examination, she

testified that it was difficult for her to hear anything from the living room when

her bedroom door was shut.

Anthony Scott McClure, the victim’s father, testified that he was not

aware of any dramatic personality changes in the victim after her mother

married the defendant. He said that the victim did not tell him about the abuse;

instead, he “found out from the State of Tennessee.” He stated, however, that

he believed the victim’s allegations and that there was “[n]o question” in his

mind that the defendant had violated his daughter.

Donna Kimsey, the victim’s maternal grandmother, testified that she

lived in Springfield, Illinois, and was a retired legal secretary for a small law

firm that did not handle any child custody or domestic cases. She said she took

the victim, with whom she had always had a close relationship, to a park to talk

to her after receiving a phone call from the victim’s mother, who was upset

over the manner in which the defendant had ended an email to the victim.

Kimsey stated that she asked the victim if she was having any problems with

the defendant that she wanted to tell her about and that the victim got teary,

bowed her head, and said only, “I can’t, I can’t.” Kimsey denied that she yelled

or tried to intimidate the victim. She testified that she never noticed any change

in the victim’s personality and that the victim appeared to have a good

relationship with the defendant. On cross-examination,she denied thatshe ever

suspected that the victim was being sexually abused.

Walker, 2006 WL 3313651, at *1-10. The jury convicted the Petitioner of two counts of rape

of a child and one count of aggravated sexual battery. The trial court originally sentenced him

to twenty-two years for each rape conviction, to be served concurrently, and ten years for the

aggravated sexual battery conviction, to be served consecutively to the rape sentences, for an

effective sentence of thirty-two years. At the motion for new trial hearing, the trial court

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reduced the sentences for the rape of a child convictions to twenty years each and the sentence

for the aggravated sexual battery conviction to eight years, making the total effective sentence

twenty-eight years. The Petitioner appealed, and, on appeal, this Court found that the

evidence was sufficient to sustain all three convictions. We, however, reversed the

aggravated sexual battery conviction based upon inadequate testimony about the date this

offense occurred, which was necessary because the bill of particularsidentified this conviction

as based upon a “masturbation that occurred in the living room of the residence in January

2000, while the defendant had his clothes on and his zipper open.” Because the State was

unable to elicit those identifying details from the victim at trial, her testimony did not establish

that any masturbation occurred in January 2000, and we were constrained to reverse that

conviction. As a result, the Petitioner’s effective sentence became twenty years.

B. Post-Conviction Facts

The Petitioner filed a timely petition for post-conviction relief in which he alleged that

his trial counsel was ineffective in several ways. At the hearing on the petition, the following

evidence was introduced: The Petitioner testified that he was serving a twenty-year sentence

for his rape convictions. He said the attorney (“Counsel”) who represented him during his

trial was ineffective because he failed to adequately investigate his case. He also claimed that

Counsel used a defense of impotence but failed to introduce available medical records

regarding his medical condition. The Petitioner said Counsel also failed to subpoena the

impotence specialist, Dr. Douglas Trapp, who the Petitioner had seen with regard to his

condition. The Petitioner felt Dr. Trapp’s testimony would have helped the jury understand

that he had to inject himself to become erect and that these injections only took effect after

a certain time period. The Petitioner felt that Dr. Trapp’s testimony would also have refuted

the State’s claim that he had engaged in sexual intercourse with the victim every day,

sometimes more than once a day, because the doctor would have testified that the Petitioner

could not inject himself more than once in a twenty-four hour period.

The Petitioner also testified that Counsel failed to submit into evidence the report from

the doctor in Illinois who examined the victim. The Petitioner said this doctor’s report

included the results of the victim’s pelvic exam, which were inconclusive. The Petitionersaid

Counsel had this report but that Counsel never spoke with the doctor. When Counsel tried

to introduce the report into evidence at trial, the court ruled the report was inadmissible

hearsay.

The Petitioner alleged that Counsel had a conflict of interest when Counsel represented

him because Counsel had previously represented the Petitioner’s daughter and did not inform

the Petitioner of this fact. The Petitioner said Counsel did not challenge his daughter’s

credibility when she testified against him during his trial. Further, the Petitioner said Counsel

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vouched for his daughter’s credibility by saying during closing argument that Counsel knew

that the Petitioner’s daughters were not lying. The Petitioner said that, had he known of this

conflict, he would not have allowed Counsel to represent him.

The Petitioner testified that Counsel was ineffective in dealing with the Petitioner’s

uncharged conduct toward the victim. He said Counsel filed a motion in limine to exclude

testimony of any uncharged acts, and the trial court granted this motion. The State, however,

introduced testimony about uncharged conduct, and Counsel only objected once. Further,

Counsel himself introduced instances of uncharged conduct. The Petitioner said Counsel was

ineffective for mentioning these crimes, evidence of which the trial court had ruled

inadmissible. Further, the Petitioner believed that the jury’s repeated exposure to this

uncharged conduct affected the verdict.

The Petitioner alleged that Counsel was ineffective for failing to object to the jury

receiving, during deliberations, a copy of the transcript of the taped conversation between the

Petitioner and his daughter. He said this allowed the jury to place great weight on this

prejudicial evidence. About this same conversation, the Petitioner said Counsel was

ineffective for failing to assert that his daughter’s taping of this conversation, at the behest of

law enforcement, violated his right against self-incrimination. Further, the tape was played

for the jury before the Petitioner said whether he was going to testify, which he says forced

him to testify. The Petitioner said he wished that Counsel had tried harder to exclude the tape.

The Petitioner’s next set of allegations involved Counsel’s failure to object to actions

by the prosecutor. He testified the prosecutor improperly referred to evidence not submitted

to the jury, including destroyed emails. The Petitioner said the prosecutor also improperly

referred to “the Lolita complex” in front of the jury, which the Petitioner later learned was a

reference to a book written about child pornography. The Petitioner said Counsel’s failure

to object allowed the jury to assume that the Petitioner was involved in child pornography.

He further asserted that there is a federal case indicating that references to “Lolita” were

improper.

The Petitioner testified that Counsel should have objected when the prosecutor

improperly challenged the credibility of several witnesses by forcing them to call other

witnesses liars. The Petitioner said the prosecutor called his wife a “perjurious liar,” which

was an improper comment on her testimony. The prosecutor also said that the Petitioner’s

mother-in-law had called her daughter a liar during the mother-in-law’s trial testimony. The

Petitioner also felt Counsel should have objected when the prosecutor “vouch[ed] for the

credibility [of] certain witnesses.”

The Petitioner testified that Counsel told him that the State had offered to settle the

-14-
case and that, in exchange for his guilty plea, he would receive eight years at one hundred

percent. Counsel told the Petitioner not to take the plea deal, saying that the Petitioner

possibly would not live eight more years considering his poor health. The Petitioner testified

that Counsel never told him, however, that he was facing 120 years in prison if he was found

guilty on all the counts. The Petitioner said, had he understood the ramifications of the

charges against him he would have taken the plea offer.

The Petitioner next asserted that Counsel failed to investigate or interview the social

worker in Illinois. The social worker’s report included conflicting statements and statements

that contradicted the victim’s trial testimony. In one instance, the victim told the social

worker she had never performed oral sex on the Petitioner, but she testified at trial that she

performed oral sex on the Petitioner. Counsel attempted to put that evidence before the jury,

but it was excluded as hearsay. The Petitioner testified that Counsel neither called the social

worker to testify nor ensured her testimony could be admitted by other means.

On cross-examination, the Petitioner conceded that, at trial, the victim was forced to

read the contradictory statements that she had made to the social worker into the record in

front of the jury. About the expert testimony of Dr. Trapp, the Petitioner agreed that there was

testimony in the record that the Petitioner could only inject himself with one vial of medicine

during a twenty-four hour period, but he said the doctor’s testimony would have been more

persuasive. The Petitioner said he was still, at the time of the post-conviction hearing,

unaware of the capacity in which Counsel had represented his daughter. He said this was the

reason he did not know whether or not he would have allowed Counsel to continue to

represent him had he known of the conflict.

The Petitioner agreed that the trial court ruled that testimony about fellatio, which was

uncharged conduct, could not be admitted during trial. He disagreed that Counsel may have

let this testimony in for a strategic reason, namely to show that the victim’s statements to a

social worker in Illinois varied greatly from her trial testimony.

Counsel testified that he investigated the Petitioner’s impotence defense by obtaining

the Petitioner’s medical records. He and the Petitioner discussed whether to present expert

testimony on the matter and the expense of so doing, and they both agreed that the testimony

of the Petitioner and his wife on this matter would be sufficient. Counsel said he and the

Petitioner had been friends before this case, and, as such, Counsel was well aware of the

Petitioner’s impotence and the car wreck that precipitated his impotence.

Counsel testified that he contacted the Petitioner’s daughter, C.M., whom he described

as “very hostile” toward him, and C.M. did not want to talk to him. Counsel filed a motion

to suppress the tape-recorded conversation between the Petitioner and C.M. In the motion,

-15-
he relayed the circumstances surrounding the conversation, saying that the Petitioner called

him on a Sunday and explained the allegations he faced. He told the Petitioner not to speak

to anyone including law enforcement and family members and to come to his office the

following day. When the Petitioner was asked by law enforcement to provide a statement, the

Petitioner refused. Law enforcement approached the Petitioner’s daughter and asked that she

record a conversation with her father. The Petitioner engaged in the conversation with his

daughter, which was played for the jury. Counsel said he argued “vehemently” to keep that

conversation out, but the trial court ruled against him. Counsel said he incorrectly assumed

that, once it was introduced as an exhibit, the jury was entitled to have it during deliberations,

thus he did not object to the tape being taken into the jury room.

Counsel testified that he disclosed to the Petitioner that he had previously represented

the Petitioner’s other daughter, A.W. He said he told the Petitioner that, because he had

represented A.W., he thoughtshe would speak to him about this case. The Petitioner provided

Counsel with A.W.’s telephone number, and Counsel called A.W. while the Petitioner was

present. Counsel said A.W. was not hostile toward the Petitioner at trial, unlike the

Petitioner’s other daughter, C.M.

Counsel testified that he was provided discovery in this case, which included a report

that showed that the victim’s pelvic exam was inconclusive. He said he attempted to have the

report admitted in court, but the trial court denied his motion. Counsel agreed that it would

have been possible for him to issue a subpoena and take a deposition of the doctor who

created the report. He said he discussed this with the Petitioner, and the two decided that

Counsel should not take this measure based upon the expense and also upon the fact that they

did not want the story of the victim, who was only twelve or thirteen, admitted through this

deposition. Counsel agreed that he could have asked that the medical report be admitted as

a business record if he requested that the custodian of records make the report a business

record.

On cross-examination, Counsel testified that the Petitioner was not incarcerated before

the trial and that there was a long delay between his arrest and the trial due to the Petitioner’s

poor health. During this delay, which lasted approximately eighteen months, Counsel met

with the Petitioner regularly. In the last two weeks before the Petitioner’s trial, the Petitioner

was at Counsel’s office several hours each day.

Counsel agreed that, before trial, the State offered to settle the case if the Petitioner

agreed to serve eight years at 100%. Counsel relayed this offer to the Petitioner, who had

recently been released from the hospital after suffering a brain aneurysm. The Petitioner said

that eight years was a “death sentence” given his medical condition and asked Counsel what

his chances at trial were. Counsel said he told the Petitioner that he thought the odds of the

-16-
Petitioner’s being found guilty were “fifty-fifty.” Counsel said that he went through the

indictment with the Petitioner and discussed the minimum and maximum sentence for each

charge the Petitioner faced.

Counsel testified that he filed a motion in limine to exclude testimony about the victim

performing fellatio upon the Petitioner because the Petitioner was not charged with this

conduct. The trial court granted this motion. Counsel explained that, before trial, he was

aware that the victim told a social worker in Illinois she had never performed fellatio on the

Petitioner. Based on this inconsistency with her earlier statement to the Illinois social worker,

Counsel did not object to her testimony at trial that she had in fact performed fellatio in order

to impeach her with the social worker’s report. Counsel recalled that there were several

instances during the victim’s testimony where she contradicted the statement she gave the

Illinois social worker, which he brought out during his cross-examination of the victim.

Counsel testified that he did not find the victim in this case credible. He said that, in

addition to her contradictory statements to the Illinois social worker, there was no DNA

evidence to corroborate the victim’s story. Counsel recalled that the victim said that she and

the Petitioner engaged in sexual conduct almost every day in various places in the house,

including the couch and the carpet. When law enforcement officers searched those places for

residual bodily fluids, they found no physical evidence to support the victim’s allegations.

Based upon this evidence, the post-conviction court dismissed the Petitioner’s petition

for post-conviction relief.

II. Analysis

The Petitioner makes numerous allegations on appeal, which fall into three primary

categories: (1) Counsel was ineffective; (2) the prosecutor committed misconduct; and (3) his

sentence is illegal. The State responds that the Petitioner waived many of his objections by

failing to include a statement of facts in his brief and by inadequately citing to the record or

legal authority. The Tennessee Rules of Appellate Procedure require that briefs include “[a]

statement of facts, setting forth the facts relevant to the issues presented for review with

appropriate references to the record.” Tenn. R. App. P. 27(a)(6). Further, this Court may

strike inadequate briefs. Tenn. R. Crim. App. 10(a). While the Petitioner’s brief may include

some technical inadequacies, we will nonetheless address the Petitioner’s allegations that his

trial counsel was ineffective. As we will explain in greater detail below, the Petitioner’s

allegations of prosecutorial misconduct are waived because he failed to raise the issue on

direct appeal. We also will explain below why his allegations regarding his sentence do not

entitle him to post-conviction relief.

-17-
In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations in

the petition for post-conviction relief by clear and convincing evidence. T.C.A. §

40-30-110(f) (2006). Upon review, when post-conviction proceedings have included a full

evidentiary hearing, as was true in this case, the trial judge’s findings of fact and conclusions

of law are given the effect and weight of a jury verdict, and this Court is “bound by the trial

judge’s findings of fact unless we conclude that the evidence contained in the record

preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d 752,

755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the evidence

below; all questions concerning the credibility of witnesses, the weight and value to be given

their testimony and the factual issues raised by the evidence are to be resolved by the trial

court judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999);

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s conclusions

of law, however, are subject to a purely de novo review by this Court, with no presumption

of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

A. Ineffective Assistance of Counsel

The Petitioner contends that his trial counsel was ineffective because he: (1)

ineffectively asserted the defense of impotence; (2) failed to adequately investigate, interview,

or subpoena a corroborating medical witness in Illinois; (3) failed to adequately investigate,

interview, or subpoena the social worker in Illinois; (4) failed to persuade the trial court to

suppress the Petitioner’s recorded statements to his daughter; (5) failed to present the

testimony of Randy Hultberg; (6) failed to inform the Petitioner of Counsel’s previous

representation of the Petitioner’s daughter on an unrelated matter; (7) allowed and introduced

the Petitioner’s prior bad acts; (8) failed to argue that the State must elect offenses; (9) “failed

to object”; (10) failed to object to the jury having a copy of the transcript of the tape-recorded

conversation during deliberations; (11) forced witnesses to call other witnesses liars; (12)

allowed the Petitioner to be presented with a “Hobson’s Choice”; (13) failed to request a jury

instruction for “contradiction statements instead of inconsistencies”; and (14) failed to

adequately advise the Petitioner with respect to the State’s proposed plea agreement.

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was

-18-
deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the [petitioner] by the

Sixth Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44 S.W.3d

508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing courtshould

judge the attorney’s performance within the context of the case as a whole, taking into account

all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148,

149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct

from the attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and

“should indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a

defendant in a criminal case is not entitled to perfect representation, only constitutionally

adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In

other words, “in considering claims of ineffective assistance of counsel, ‘we address not what

is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483

U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).

Counsel should not be deemed to have been ineffective merely because a different procedure

or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-80

(Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the defense

does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515

(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of

strategy and tactical choices applies only if the choices are informed ones based upon

adequate preparation. House, 44 S.W.3d at 515.

-19-
If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994).

1. Impotence Defense

The Petitioner asserts that, because he was “incapable of sex,” the charges of rape

against him are baseless. Further, he states that Counsel’s failure to investigate his medical

condition of impotence amounted to ineffective assistance because Counsel should have

asserted that the Petitioner’s impotence was a complete defense to the charge of rape. He

states that Counsel should have obtained medical records and a deposition from the

Petitioner’s doctor regarding the Petitioner’simpotence. Finally, he contends Counselshould

have requested that the judge provide the jury special instructions regarding his impotence.

The State counters that the Petitioner was not “incapable” of having sex because he could

maintain an erection via a drug injection, therefore, his claim lacks merit.

In order to be entitled to post-conviction relief, a petitioner must show two things: that

his counsel’s performance was deficient and that he was prejudiced. Strickland, 466 U.S. at

687. In the case under submission, we need not address counsel’s performance, which does

not appear deficient, because the Petitioner clearly cannot show prejudice. First, the

Petitioner’s wife, Mrs. Walker, testified at trial that she and the Petitioner had sexual

intercourse one to two times per month and that ninety percent of the time the Petitioner had

to inject himself with his medication in order to perform. Thus, ten percent of the occasions

on which the Petitioner had sex with his wife, he did so without medication. He is not,

therefore, incapable of having sex without medication. Further, the Petitioner testified that

he is able to sexually perform and maintain an erection with medication.

During the Petitioner’s trial, both the Petitioner and his wife testified about his

difficulties maintaining an erection without medication, and Counsel introduced medical

records that supported this testimony. The Petitioner failed to provide any additional

testimony at the hearing on his petition for post-conviction relief, in the form of his doctor’s

testimony or additional medical records, that would show how his doctor’s testimony would

have added to the testimony already presented to the jury. In the absence of any additional

evidence, we are left to speculate about how the Petitioner’s doctor’s testimony would have

aided his defense. Under these circumstances, we conclude that the Petitioner cannot show

prejudice and is not entitled to post-conviction relief on this issue.

-20-
2. Inconclusive Pelvic Exam of Victim

The Petitioner next asserts that Counsel was ineffective for failing to introduce the

victim’s medical report into evidence. The report of that medical exam showed that the

doctor performing the victim’s pelvic exam found inconclusive evidence about whether the

victim had previously engaged in sexual activity.

Counsel, who had been retained by the Petitioner, testified that he discussed this matter

with the Petitioner before trial. He informed the Petitioner of the expense of deposing the

doctor and of the risk that this deposition would lead to other damaging evidence, which the

victim may have relayed to the doctor, being admitted into evidence. The two discussed

alternative available evidence challenging the victim’s story, namely, the Petitioner’s

difficulty maintaining an erection and the absence of semen from the locations in which the

victim said the two had engaged in sexual activity. The Petitioner and Counsel then decided

not to depose the doctor.

We conclude that Counsel’s performance was not deficient in this regard. He

discussed with the Petitioner the Petitioner’s options on this issue and thoroughly reviewed

the considerations with him. He and the Petitioner decided together that it was better not to

depose this doctor for strategic reasons. Further, the Petitioner has failed to show how he was

prejudiced in this regard. He did not present the doctor’s testimony at his post-conviction

hearing, and a copy of this doctor’s report is not included in the appellate record. He is not,

therefore, entitled to post-conviction relief on this issue.

3. Illinois Social Worker

The Petitioner next contends that Counsel was ineffective for not calling as a witness

Karen Morelock, a social worker in Illinois who interviewed the victim. In the alternative,

he states that Counsel should have sought to make Morelock’s statements admissible via the

business exception to the hearsay rule. The Petitioner asserts that the victim made several

statements to Morelock that contradicted the victim’s trial testimony and that Morelock’s

testimony would have had a greater impact had she testified in person.

At trial, the court allowed Counsel to impeach the victim with each of the

inconsistencies he identified in Morelock’s report. The victim was forced to read aloud to the

jury portions of Morelock’s report about their interview. In our opinion on direct appeal, we

summarized the cross-examination, stating:

On cross-examination, the victim acknowledged that she told Karen

Morelock, the Illinois social worker who interviewed her on July 5 and July 19,

-21-
2001, that she thought she was the one who had deleted the emails, that she did

not do anything with her mouth to the defendant, and that the sexual touching

started in January 2000, as opposed to January 1999 as she stated in her direct

examination testimony. At defense counsel’s request, the victim read the

following portion of her July 19 statement aloud: “I wouldn’t do anything with

my mouth to him, but he would lick my genital area.” She agreed that the

following statements in her July 19 statement were true: “It would be everyday

beginning in January 2000”; “He would lick me, I had sex with him everyday

for over one year”; and “[E]very once in a while, we would have sex one time

in the morning and then when I would get home from school.” The victim also

testified, however, that her statement on direct examination that the abuse

began in 1999 was true. She said the defendant first began touching her in

January 1999, when she was ten years old and within a few months of his

October 1998 marriage to her mother.

In light of this cross-examination, we conclude the Petitioner has not proven that he

was prejudiced by Counsel’s failure to have Morelock testify or to have her report

independently admitted into evidence. It is clear from the record that the Petitioner was able

to expose to the jury any and all inconsistencies between Morelock’s report and the victim’s

trial testimony. He is not entitled to post-conviction relief on this issue.

4. Suppression of Petitioner’s Statement

The Petitioner next contends that Counsel was ineffective when he failed to have the

Petitioner’s recorded statements suppressed. The Petitioner contends any statements made

to his daughter, C.M., during a telephone conversation, was made to an “agent of the State”

when he was “under extreme duress” in violation of his Fourth Amendment rights against

illegal searches and his Fifth Amendment right against self-incrimination.

Before trial, Counsel filed a motion to suppress this tape recorded conversation, and

he testified he argued “vehemently” to keep that conversation out, but the trial court ruled

against him. The record shows that the Petitioner, who was not in police custody at the time,

made these statements during a tape recorded conversation with his daughter. The record

does not, however, include a copy of the motion to suppress or a copy of the transcript of the

hearing on the motion to suppress. We are, therefore, left to speculate as to the arguments

Counsel put forth. In any event, Counsel’s performance was not deficient in that he

attempted, albeit unsuccessfully, to suppress the Petitioner’s statements. Further, the

Petitioner has not successfully proven how he was prejudiced. The Petitioner is not entitled

to relief on this issue.

-22-
5. Testimony of Randy Hultberg

The Petitioner contends Counsel was ineffective because he failed to present the

testimony of Randy Hultberg. Hultberg completed a Comprehensive Sex Offender PreSentence Evaluation that stated that the Petitioner was “low risk” and “a good candidate for

probation.” The Petitioner sought to have this introduced during the trial, and the trial court

ruled that the Petitioner’s tendencies with regard to re-offending were not proper testimony

for the jury, whether that testimony be that he was at a high or a low risk for re-offending.

The Petitioner did not call Hultberg to testify at the post-conviction hearing, and it is unclear

from the Petitioner’s brief what he thinks Counsel should have done differently.

Because the Petitioner presented no evidence at the post-conviction hearing to support

this argument and because he makes no citations to any authority to support his argument, we

conclude he has waived our review of this issue. The Rules of Appellate Procedure require

that citations to authority and references to the record be included in the argument portion of

the brief. Tenn. R. App. P. 27(a)(7). The rules of this Court also contemplate waiver of

issues not supported by citation to authorities or appropriate references to the record. See

Tenn. R. Ct. Crim. App. 10(b) (“Issues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this court.”).

We deem this issue waived due to the failure to cite to any legal authorities.

6. Counsel’s Prior Representation of the Petitioner’s Daughter

The Petitioner next contends that Counsel was ineffective because Counsel failed to

disclose his previous representation of the Petitioner’s daughter, A.W., who testified at his

trial. In his appellate brief, he states that he would have “never . . . allowed Counsel to

represent him had he known of this conflict . . . .”

Counsel testified at trial that he disclosed to the Petitioner his previous representation

of the Petitioner’s daughter, A.W., on an unrelated matter and that he had a good relationship

with her. He said that the Petitioner provided him A.W.’s phone number, and he called A.W.

while the Petitioner was present to discuss the Petitioner’s case. Counsel testified that, unlike

the Petitioner’s other daughter, C.M., A.W. was not hostile toward the Petitioner during the

trial, which he attributed to his phone conversation with her. At the post-conviction hearing,

the Petitioner was much less certain than in his brief about whether he would have allowed

Counsel to continue representing him had he known of his representation of A.W., testifying

that he did not think that he would have allowed Counsel to represent him. The Petitioner

acknowledged at the post-conviction hearing that he did not know the details of that prior

representation, and he presented no evidence about the details of that representation by calling

A.W. to testify or by questioning Counsel in depth on this matter.

-23-
The post-conviction court, crediting Counsel’stestimony, found that Counsel informed

the Petitioner about his previous representation of A.W., and the Petitioner did not object to

Counsel’s continued representation of the Petitioner. We conclude that the evidence does not

preponderate against this finding. The Petitioner has neither proven that Counsel was

deficient in this regard nor that he was in some way prejudiced. He is not, therefore, entitled

to post-conviction relief on this issue.

7. Prior Bad Acts

The Petitioner next asserts that Counsel was ineffective for not objecting to the State’s

introduction of his “prior bad acts,” i.e. uncharged instances of fellatio testified to by the

victim, and that Counsel was also ineffective for introducing such evidence himself. Counsel

filed a motion in limine to have these instances of fellatio excluded, and the trial court granted

this motion. The Petitioner points to Counsel’s opening statement in which he stated that the

jury would hear that the victim was going to testify that she and the Petitioner engaged in

sexual activity every day, which was a direct violation of the motion in limine.

It is apparent from the trial transcript and Counsel’s testimony at the post-conviction

hearing that the defense strategy was to impeach the victim’s credibility in several ways.

Counsel sought to impeach the victim’s testimony that she and the Petitioner engaged in

sexual activity every day, sometimes twice a day, with the following evidence: that the

Petitioner required an injection to maintain an erection; that he could not take such medication

more than once per day; that there were only a few vials of the injection missing from the

Petitioner’s supply and that his wife could account for their use; that no bodily fluids were

found by law enforcement in the places where the victim said the intercourse occurred; and

that the victim made contradictory statements about the frequency, nature, and duration of the

sexual contact. Counsel decided that it was to the Petitioner’s advantage to have these

instances brought in to bolster the argument that the victim was being untruthful and to prove

that her testimony was improbable.

This Court addressed this issue during the Petitioner’s direct appeal. We concluded

that Counsel’s failure to argue for the suppression of this evidence was deliberate and an

“effort to point out the inconsistencies and improbabilities in the victim’s accounts to the

Illinois social worker.” When ruling on this issue, the post-conviction court found, “Using

these [instances of prior bad acts] was to the advantage of the Petitioner not to his

disadvantage.” We agree. While, in hindsight, there may have been another defense strategy

that may have been more successful, the one that Counsel asserted was reasonable in light of

the evidence. The fact that a particular strategy or tactic failed does not, standing alone,

establish unreasonable representation. House, 44 S.W.3d at 515. The Petitioner is not entitled

to relief on this issue.

-24-
8. Election of Offenses

The Petitioner next contends that Counsel’s assistance was ineffective because he

failed to argue that the State must elect offenses. This issue was addressed by this Court on

the Petitioner’s direct appeal. We stated:

We agree with the defendant that an election of offenses and enhanced

unanimity instruction should have been given. However, we find the error to

have been harmless with respect to Counts One and Six. Although the victim

testified that she had had sexual intercourse with the defendant on numerous

different occasions and locations during the time she lived with him at the

Barkwood Court residence, she described only two incidents in detail: the May

28, 2001, rape in the living room and the second rape that occurred in the living

room during the school spring break of 2001. There was, therefore, no danger

that the jurors might have been considering different offenses when deliberating

on those counts. Such a danger did exist, however, with respect to the

aggravated sexual battery count of the indictment. That offense was narrowed

as to time and act, but the proof at trial did not correspond to the time frame

selected and there was evidence of more than one occasion on which the act of

masturbation occurred.

Our supreme court addressed a similar situation in State v. Brown, 992

S.W.2d 389 (Tenn. 1999), in which a child rape victim testified about multiple

instances of penetration, the State did not elicit identifying details from the

victim about the single count for which the defendant was on trial, and the

proof did not correspond to the time frame the State selected for the offense:

The prosecution did not attempt to clarify the victim’s testimony,

or clarify the conflicts in the testimony, either by eliciting

additional details or by relating the timing of the abuse to some

other occasion in the victim's life. Moreover, instead of relying

upon the few details that were elicited, for example, an incident

that occurred on a Friday when it was warm, to make the

election, the prosecution did not elect a specific offense but

simply narrowed the time-frame of the charged offense from the

period alleged in the indictment (March 1, 1993, to September

30, 1993) to an offense occurring between Easter, April 11, 1993,

and June 30, 1993. This time-frame limitation was not an

election and failed to ensure that the jury would focus on a single

offense.

-25-
Moreover, as the State now concedes on appeal, the

deficiency in the election at trial was further compounded by the

fact that the time-frame chosen by the prosecutor was simply

inaccurate. A close reading of the testimony reveals that the

victim testified that acts of digital penetration were committed by

Brown in Brown’s trailer prior to the occasion on which Brown

took the photographs of the victim. The victim’s mother testified

that she saw the photograph of the victim prior to Easter, April

11, 1993. The State nonetheless “elected” an offense between

April 11, 1993 and June 30, 1993-a period for which the victim

described no specific offenses. Accordingly, even had the

elected offense been sufficiently detailed, the evidence did not

support the time-frame selected by the State.

Id. at 392 (footnote omitted).

In the bill of particulars, the State identified Count Three as a

masturbation that occurred in the living room of the residence in January 2000,

while the defendant had his clothes on and his zipper open. The State was

unable, however, to elicit those identifying details from the victim at trial, and

her testimony did not establish that any masturbation occurred in January 2000.

Accordingly, we must reverse the defendant's conviction for aggravated sexual

battery and remand for a new trial on that offense.

Walker, 2006 WL 3313651, at *15-16.

Because this Court has previously addressed this issue and found the error harmless

as to all convictions save one, which we reversed and remanded for a new trial, the Petitioner

cannot show any prejudice with regard to Counsel’s performance. He is not entitled,

therefore, to post-conviction relief on this issue.

9. Failure to Object

The Petitioner’s next contention reads, “Numerous times the failed [sic] to object and

this failure prejudiced the Appellant and deprived him of his Constitutional right to a fair

trial.” In the next section of his brief, the Petitioner cites to one instance where Counsel,

during a side bar, told the trial judge that he did not want to delay things by “jumping up and

down objecting.” There are no citations to the record, however, identifying the occasions on

which Counsel should have objected.

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As previously stated, the rules of this Court contemplate waiver of issues notsupported

by citation to authorities or appropriate references to the record. See Tenn. R. Ct. Crim. App.

10(b) (stating that “[i]ssues which are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived in this court”). This issue is

waived.

10. Transcript of Telephone Conversation

The Petitioner next asserts that Counsel’s representation was ineffective because he

allowed a transcript of the tape recorded conversation between the Petitioner and his daughter,

C.M., to go into the jury room during deliberations. He contends Counsel should have

objected to the jury’s having this transcript on the basis that he would be unduly prejudiced

by submission of the exhibit to the jury.

When ruling on this issue, the post-conviction court stated: “The court is unable to find

that the Petitioner suffered any prejudice from any lack of objections. The court is not finding

that [Counsel] was ineffective for not making the objections referred to by the Petitioner.”

Tennessee Rule of Criminal Procedure 30.1 states, “Unless for good cause the court

determines otherwise, the jury shall take to the jury room for examination during deliberations

all exhibits and writings, except depositions, that have been received in evidence.” The

Advisory Commission Comments to this section state:

This rule, applicable in criminal cases, is mandatory unless the judge, either on

motion of a party or sua sponte, determines that an exhibit should not be

submitted to the jury. Among the reasons why a particular exhibit might not be

submitted are that the exhibit may endanger the health and safety of the jurors,

the exhibit may be subjected to improper use by the jury, or a party may be

unduly prejudiced by submission of the exhibit to the jury.

We conclude that the Petitioner has failed to show prejudice because the tape recording

of the conversation would have been allowed into the jury room over Counsel’s objection.

Counsel filed a motion to suppress this tape recording, which was unsuccessful. It is likely

that once the tape was made an exhibit and played for the jury, the jury would have been

entitled to have the tape in the jury room. The transcript, though an accurate account of the

tape, would have been open to challenge on the basis that it would have only been produced

to aid the jury while the tape was played. The jury’s having had the transcript in the

deliberation room, however, does not undermine our confidence in the verdict. The Petitioner

is not entitled to relief on this issue.

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11. Forcing A Witness to Call Another Witness a “Liar”

The Petitioner next contends that Counsel was ineffective when he asked the witness

if the testimony of another witness was a lie. The Petitioner cites to a Federal case from the

seventh circuit that holds that, “Because credibility questions are for the Jury, it is improper

to ask one witness to comment on the veracity of the testimony of another witness.” See U.S.

v. Freitag, 230 F.3d 1019 (7th Cir. 2000). In Freitag, the counsel for the prosecution asked

the defendant, who testified, whether she herself was being truthful and whether other

witnesses were being truthful. Id. at 1024. The Freitag court ultimately held, “Assuming

arguendo that all the questions Freitag objects to are improper, we find the resulting error to

be harmless.” Id. We can find no Tennessee case adopting a holding that counsel for the

defense or prosecution may not ask a witness whether another witness is truthful. The

Petitioner is not entitled to post-conviction relief on this issue.

12. “Hobson’s Choice”

The Petitioner next asserts that he was forced to testify because the State played the

tape recorded conversation he had with his daughter. The admission of these “erroneously

admitted statements” left him with a “Hobson’s Choice,” meaning that he must remain silent

1

and allow the jury to consider the highly damaging statements or testify and seek to rebut

them. The Petitioner fails to mention what, if any, action by Counsel was ineffective.

We conclude the Petitioner is not entitled to post-conviction relief on this issue. First,

as previously discussed, Counsel did everything possible to attempt to suppress the tape

recorded conversation. He filed a motion to suppress, which included the circumstances

surrounding the Petitioner’s daughter’sinitiation of this phone conversation and “vehemently”

argued that motion to the trial court. Again, that motion and the hearing on that motion are

not included in the record. We conclude Counsel was not deficient in this regard. Second,

we conclude that any argument that the Petitioner seeks to make about the trial court’s

admission of this tape recording is not a proper argument for a post-conviction proceeding.

The Petitioner raised several alleged errors in evidentiary rulings on his direct appeal, but he

did not raise the issue of whether this tape was properly admitted. See Walker, 2006 WL

3313651, at *16-17. Therefore, any objection to the trial court’s evidentiary ruling is waived.

A “Hobson’s Choice” is a free choice in which only one option is offered. As a person may refuse

1

to take that option, the choice is therefore between taking the option or not; “take it or leave it.” The phrase

is said to originate from Thomas Hobson (1544–1631), a livery stable owner at Cambridge, England. To

rotate the use of his horses he offered customers the choice of either taking the horse in the stall nearest the

door or taking none at all. MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 551 (10 ed. 1997). th

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See T.C.A. § 40-30-106(g) (2006)

13. Jury Instruction for “Contradiction Statements Instead of Inconsistencies”

The Petitioner next asserts that Counsel was ineffective for failing to request a “jury

instruction for contradiction statements instead of inconsistencies.” In this portion of his brief

he cites to Tennessee law that “contradictory statements by the same witness regarding a

single fact cancel each other out.” See Church v. Perales, 39 S.W.3d 149, 169 (Tenn. Ct.

App. 2000). There is no citation to the record and no argument about what testimony the

Petitioner asserts contradicted itself, what jury instruction was given, or what Counsel should

have done differently. This issue is waived. See Tenn. R. Ct. Crim. App. 10(b) (stating that

“[i]ssues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court”).

14. State’s Plea Offer

The Petitioner next contends that Counsel failed to adequately advise the Petitioner

with respect to the State’s plea offer of eight years. At the post-conviction hearing, Counsel

testified that, before trial, the State offered to settle the case if the Petitioner agreed to serve

eight years at one hundred percent. Counsel said he relayed this offer to the Petitioner, who

had recently been released from the hospital after suffering a brain aneurysm. Counsel said

the Petitioner responded that eight years was a “death sentence” given his medical condition

and then asked Counsel what Counsel believed his chances at trial were. Counsel said he told

the Petitioner that he thought the Petitioner’s odds of being found guilty were fifty-fifty.

Counsel said that he went through the indictment with the Petitioner and discussed the

minimum and maximum sentence for each charge the Petitioner faced.

We conclude the Petitioner has not proven by clear and convincing evidence that

Counsel was deficient in this regard. The Petitioner testified that Counsel urged him to reject

the plea offer, emphasizing the likelihood that the Petitioner would die within the next eight

years and that Counsel did not inform him of the potential sentence he could receive if found

guilty. Counsel, however, testified the Petitioner raised the possibility that he would die

before the end of an eight-year sentence, not Counsel, and rejected the State’s offer on that

basis. Counsel also testified that he informed the Petitioner of the sentences he could receive

if found guilty. By denying post-conviction relief on this basis, the post-conviction court

necessarily found Counsel’s testimony more credible than that of the Petitioner. We will not

disturb that finding. The Petitioner is not entitled to relief on this issue.

II. Prosecutorial Misconduct

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The Petitioner alleges numerous ways in which the prosecutor committed misconduct,

which, he asserts, deprived him of due process and a fair trial. No claim of prosecutorial

misconduct was raised on direct appeal. See Walker, 2006 WL 3313651, at *1. This issue

is waived. See T.C.A. § 40-30-106(g) (2006) (providing that claims are waived if they could

have been, but were not, presented in an earlier proceeding); see also Tony A. Phipps v. State,

No. E2008-01784-CCA-R3-PC, 2010 WL 3947496, at *14 (Tenn. Crim. App., at Knoxville,

Oct. 11, 2010), no Tenn. R. App. P. 11 application filed.

III. Cumulative Effect of Error

Finally, the Petitioner contends that the cumulative effect of the errors alleged above

entitles him to a new trial. Having found no error, we conclude that the Petitioner is not

entitled to relief on this issue.

IV. Sentencing

The Petitioner contends that his sentence is illegal because the Tennessee Supreme

Court established a new rule of law in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), that

applies to his convictions and sentences, requiring that his sentences be modified and

corrected in accordance with Gomez. The State counters that the Petitioner waived our review

of this issue by not presenting his sentencing claim on direct appeal.

The Petitioner was convicted on May 29, 2003, and he was sentenced on September

11, 2003. The Petitioner filed a motion for new trial on October 2, 2003, and, by the time it

was heard on December 10, 2004, the United States Supreme Court had released its decision

in Washington v. Blakely, 542 U.S. 296 (2004). In accordance with Blakely, the trial court

reduced the Petitioner’s sentence to the presumptive sentence within his range, but it did not

further reduce his sentence by finding that there were mitigating factors that applied to the

Petitioner’s sentence. The Petitioner’s actual complaint on appeal, therefore, is that the trial

court erred when it did not reduce his sentence further by finding applicable mitigating

factors.

As we previously noted with respect to the Petitioner’s claims of prosecutorial

misconduct, the post-conviction statute mandates that claims are waived if they could have

been, but were not, presented in an earlier proceeding. See T.C.A. § 40-30-106(g). Though

the Petitioner has waived review of this issue we will briefly address the Petitioner’s

contention.

In June 2004, the United States Supreme Court held in Blakely that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

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statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Blakely, 542 U.S. at 301 (quoting Apprendi, 530 U.S. 466, 490 (2000)). The Court held that,

for Sixth Amendment purposes, the “statutory maximum” to which a trial court may sentence

a defendant may be based only on those facts reflected in the jury verdict or admitted by the

defendant. Id. at 542. Under Blakely, then, the maximum sentence which may be imposed

is the presumptive sentence applicable to the offense. See id. The trial judge may impose a

sentence that exceeds the presumptive sentence based only on the fact of a defendant’s prior

conviction(s) or on other enhancement factors found by the jury or admitted by the defendant.

Following Blakely, the Tennessee Supreme Court concluded in State v. Gomez, 163

S.W.3d 632, 661 (Tenn. 2005) (“Gomez I”), that the Tennessee Sentencing Reform Act of

1989 did not impermissibly infringe on the province of the jury in violation of a defendant’s

Sixth Amendment right to jury trial. Thereafter, the United States Supreme Court vacated the

decision in Gomez I and remanded for reconsideration in light of its decision in Cunningham

v. California, 549 U.S. 270 (2007). On remand, our Supreme Court held that a trial court’s

enhancement of a defendant’s sentence on the basis of judicially determined facts other than

the defendant’s prior convictions violates the defendant’s Sixth Amendment rights. State v.

Gomez, 239 S.W.3d 733, 740-41 (Tenn. 2007) (“Gomez II”).

Gomez II’s modification of sentencing law does not affect the Petitioner because, at

the motion for new trial hearing, the trial court reduced the Petitioner’s sentence to the

presumptive sentence. The trial court was required to begin the Petitioner’s sentencing

determination at the midpoint of the range for a Class A felony, twenty years; therefore, the

Petitioner received the presumptive sentence as designated by statute. See T.C.A. §

40-35-210(c) (2003). The Petitioner instead complains that the trial courtshould have applied

several mitigating factors, which is not a Blakely issue.

Finally, to the extent that Petitioner is attempting to gain relief from his sentence via

retroactive application of the Blakely decision, we note that this Court has repeatedly held that

Blakely did not announce a new rule of law entitled to retroactive application in a

post-conviction proceeding. See e.g., Glen Cook v. State, No. W2006-01514-CCA-R3-PC,

2008 WL 821532, at *10 (Tenn. Crim. App., at Jackson, Mar. 27, 2008), perm. app. denied,

(Tenn. Sept. 29, 2008); Carl Johnson v. State, No. W2003-02760-CCA-R3-PC, 2005 WL

181699, at *4 (Tenn. Crim. App., at Jackson, Jan. 25, 2005), no Tenn. R. App. P. 11

application filed; Donald Branch v. State, No. W2003-03042-CCA-R3-PC, 2004 WL

2996894, at *9-10 (Tenn. Crim. App., at Jackson, Dec. 21, 2004), no Tenn. R. App. P. 11

application filed. Therefore, Petitioner has not alleged a cognizable basis for post-conviction

relief, and he is not entitled to relief on this issue.

II. Conclusion

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After a thorough review of the record and the applicable law, we conclude the postconviction court properly dismissed the Petitioner’s petition for post-conviction relief.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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