1 It is the po licy of this co urt to refe r to min or victim s of sexu al assau lt by their initials o nly.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Septem ber 24, 200 2 Session
ROSCOE H. WOODS v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Anderson County No. A0CR0250 James B. Scott, Jr., Judge

No. E2 001-0 1790- CCA-R3 -PC February 18, 2003
The petitione

r appea ls the den ial of his p etition fo

r post conviction relief, arguin g that the postconviction court er

red in finding that he received effective assistance of trial counsel. Based on our review, we conc lude that the petiti oner fa

iled to mee

t his burde

n of demon strating

that his t ria l counsel provided ineffective assistance. Accordingly , we affirm the post-conviction court’s denial of post-conviction relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined.
David A. S tuart, Clin

ton, Tennessee, f

or the ap pellant, Roscoe H. Woods.
Paul G. Summers , Attorney Genera l and Repo

rter; Gill R. Geldrei ch, Assist ant Attor ney Genera l; James N. Ramsey, D istrict Attorney Gene ral; and Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
FACTS
In 1997, the petitioner, Roscoe H. Woods, was convicted by an AndersonCounty Criminal Courtjury of

three c ounts of r

ape based on three

separa te incide nts of oral s ex in 1993 and 1994 with his daughter, J.W., 1 who was thirteen y ears old at the time. The petitioner was sentenced by the trial court to a n eff ective sentence of ten y

ears in the Department of Correction. His convictions were affirmed by t his court on direc t appeal , and his applica tion for p ermission

to appea l to the supre

me court was denied. See State v. Roscoe H. Woods , No. 03C01-9801-CC-00029, 1999 WL 2831, at *1 (Tenn. Crim. App. Jan. 6, 1999), perm. to appeal denied (Tenn. July 19, 1999).2 On January 5, 2001, the post- convict ion court enter ed an order stating that the parties agreed that the timeliness of the fil ing of

the pet iti on would not be r aised as an is sue in the cas e. -2- The dire ct appea

l opinion pr

ovides the

following

accoun t of the crimes:
In 1989, af

ter the d efenda nt d ivorced h is first wife, he was awarded custody of his two c

hildren, the victim

J.W. and her

twin brother Josh. In 1992, the defendant re married, and

by May 1993, he, J.W., and Josh had moved into their ne w home wit

h the defendant’s new wife, Paula Woods, and her two daughters from a prior marriage. J.W. testified that around midnight one evening in November 1993, the defendant asked her to watch t elevision with him downstairs. Accord ing to J.W., h

e eventu ally

undressed her, performed oral sex on her, and fo rced her

to reciprocate. J.W. also testified that one evening in the spring of 1994, the defendant woke her in her bedroom at night and told her

to come do wnstairswith him to watch television. According to J.W., he placed her on the floor, and the two engag ed in m utual oral s ex. J .W. f urthe r test ified that l ater t hat sp ring, th e defendant again woke h er in her bedroom at night and touched her breasts , stomach, andin betwee n her leg s. According to J.W., he then undressedher and performed oral sex on her, but when he a ttempted to penetrate her, she pushed him off of her. J.W., who was thirteen

ye ars old a

t the time o f these in

cidents, testified that none of this contact was consensual. Over objection, she also testifie d sh e first told a frien d of these

incident s approxima

tely two ye ars afte

r they occurr ed. She then told he

r frie nd's mother, another friend, and her

psy cholog ist. I

n July 1996, she reported the incident s to the au

thorities

. Id. (footnote omitted).
On July 20, 2000, 2 the petitioner filed a pro se petition for post-conviction relief, asserting a number of different grounds for reli ef, incl uding ine ffectiv e assista

nce of tr ial couns el. The postconviction court appointed post-conviction counsel, and on February 26, 2001, an amended petition for post-conviction relief was filed. An evide ntiary hearing was held on April 2 a

nd April 6, 2001. B eca use the post-conviction court determined that ineffective assistance of counsel was the petitioner’s only colorable c laim, the proof was limited to evidence re lating to the petitioner’s allegations concerning the re presentation provided

by h is trial c ounsel. Six witnesses appeared at the hearing: trial counsel; a friend of the pe titioner, Sheila Hudson, and her son, Chris; the petitioner’s son; the petitioner; and the victim.-3-

Trial counsel testified he had been practicing law in Tennessee for

thirty-four y

ears. When the indictmen

ts in the instant case were returned, he was representing the petitioner on a conting ency basis in a civil lawsuit based on the petitioner’s injury in an automobile acc ident. At the petitioner’s request , he agr

eed to re present him in the c

riminal c aseas well, ultimately rec eiving $25,000 of the petitioner’s judgment in the personal injury suit as payment for his re presentation in both cases.
Trial counsel described

his preparation for the petitioner’s criminal case. He did not hire an inve st igator, but instead conducted his own investigation which included obtaining copies of investigative reports from the p olice de partmen t, obtaining social service records on the petitioner’s son, and interviewing or attemptingto interview various witnesses involved in the case. He did not interview the three friends an d acquaintances to whom the victim apparently first reported the alleged incident s, or a co

unselor t o whom the

victim t alked. Trial counsel explained that the inv estigative reports indicate d that none of these witnesse s would be

helpful to

the petiti oner’ s defense becaus e “they were accept ing th ings at face val ue wit hout havin g done any investiga tion themselves.” Moreover, because the victim had waited over two yea rs to report the alleged incident s, trial counsel did not think the reports she had made to her friends constituted proper pr oof. Trial counsel said he objecte d to the introd uction of the evide nce at tr ial and the trial c ourt uphe ld his objections for the most part, but some of the evidence had been admitted.
Trial counsel testified he had extensive convers ations wit

h the petitioner pr

ior to tria

l, meeting with him two to four times in the petitioner’s home and “numerous times” at counsel’s office. He questioned the petitioner about any witnesses who might

be able to testify on

his behalf, and did not recall the petitioner’s having named any witnesses other than those used at trial. Trial counsel acknowledged he had a note in his file a bout a telephone conversation he had with a

woman namedSheila Hudson on Novembe r 6, 1997, after th

e petition er’s Oc tober tri al. He c ould not reca ll who initiated the contact; he had no memory, howe ver, of the petitioner’s having ever me ntioned her name before trial. Trial counsel said Ms. Hudson told him of a conversa tion she had had with the victim in the sp ring of 1997 during a chance enc ounter at a shopping mall. His notes of that conversation, which were admitted as an exhibit at the evidentiary

hearing, reflected Ms. Hudson’s having told

him that the victim said, “Did you hea r what I did to dad? I had to do something . I had to get back at him one way or another.” According to trial counsel, his trial strategy was to try to show tha

t the victim was fabricating the allega tions of se

xual abuse

in an eff ort to puni sh the pet

itioner f or perc eived slig

hts in his treatment of her compared with his treatment of her stepsisters. During his cros s-e xamination, counsel elicitedfrom the victim that she had felt neglected by her father in favor of her stepsisters and that her relationship with him was hostile. Trial counsel discussed with the petitioner his tactic of attacking thevictim’s credibility by introducing evidence of an unchar ged crime, which consisted of the victim’s allegation that the petitioner had raped her in his pickup tru ck as she and the petitioner were returningfrom taking the victim’s twin brother, Josh, to a residential treatment center in Ro an e C ou nt y. Since Josh testified that the victim had never accompanied him on such a trip, trial c ounsel believed the testimony would cr eate doubt in the jurors’ minds about all of the victim ’ s allegations against the petitioner.-4-

Trial counsel testified

he spoke with Josh three or four times prior to trial to find out what he remembered of the circumstances surr ounding the alleged inc ident a nd learn what kind of relation ship he had with his father. Based on those conversations, counsel was under the impression that Josh and the petitionerhad a good relationship. Josh appeared intelligent, and trial c ounsel had believedhe would make a good witness, able not only to refute the vic tim’s account of the Roane County in ci de nt , b ut al so “[ t] o s ho w t ha t t he [p et it io ne r] wa s c ar in g a nd th at th ey all li ved in the home together and participated in activities toge ther and, . . . he had what he felt was a clos e relation ship with his sist

er.” Tr ial couns el conce ded that t h e State’ s c ross-examination of Josh, showing what trial counsel ter m ed as “inconsiste

ncies” i n his testim

ony , was damaging

to his credibility.
The dire ct appea

l opinion de scribes how the Sta te attac ked Josh’s c

redibilit y:
On direct e

xamination, Josh testified th at the defendant disciplined J.W. because shewould not “follow through” with her school work. Josh also testified that

J.W. would confide in him, but she never complainedt o him that the defendant had sexually a bused her. On cross-examination, the State askedJosh whether in October 1995, he had told Mark

Jones, a soc ial worke

r with the Tennessee Department of Human Se

rvic es (now called “Department of Children’s Services”), that the defendant had hit him in the he ad four t

imes, retrieved a knife from the kitchen, and hit him again when Josh asked him for a cigar ette. Ove r defen se objec tion, Josh tes tified he told Mr. Jones he was hit only

once. Th e State a sked Josh

whether he had tol d Mr. Jones on other occasions that the defendant had said he wanted to “get rid of” J osh, had fired a gun in the family ’s home and threatened

t o kill J osh, had th

reatened to send

Josh to a juve

nile delinquent

facility, and had thr

eatened to “beat

[his] head in.” Josh deniedtelling M

r. Jones the se thing s. Instead, Josh testified he had a very g ood relationship with the de fendantand was not afraid the defendant would terminate their relationship if he testified a ga inst him.
To further

impeach Josh Woods’ testimony, the State called Mr. Jones. Defense counsel attempted to invoke, on Josh’s behalf, a statutory privileg e to confide

ntial comm

unicatio ns betwe en clien

ts and certifi ed maste

r social w orkers. See

T.C.A. § 63-23-107 (1997). Becau se Mr. Jones told the trial court he was not a certified master social worker , the tria

l court a llowed Mr . Jones to te stify. On the witness stand, Mr. Jones confirmed that Josh had reporte d inciden ts of physical abuse by

the defendant. Mr. Jones also testifi ed that on different occasions, Josh had reported that the defendant said he wanted“to get rid of” Josh, had fired a gun f ro m the house and-5- threatened

to kill him, and had th

reatened to send

Josh to a juvenil e delinquent

facility and “be at hi s head in.” The trial court accompanied

this testimony with two limiting instructions to the ju ry, tell ing the m that this e

vidence was not su

bstantive evidenc e these events occurred, but rather was for the sole purpose of impe aching Jo sh ’s te st im on y an d t es ti ng hi s c re di bi li ty.
Woods , 1999 WL 2831, at *4. Trial counsel testified he had been aware of the alleged child abuse, but had not thought it relevant since it occurred so long a fter the date of the

indicted offense s. He had vigorously objected to the introduc tion of the evidenc e at tria

l, argu ing that it was not relevant and that its prejudicial effect far outweighe d any probative va lue but had bee n unsucc essful, b oth at trial and on appea l.
Trial counsel disagreed that he had asked the petitioner questions on direct examination that implied the victim’s allegations were true, asserting that such an inference could not be made if the questions were re ad in cont ext. He sai d he and th

e petition er discu ssed his in

troductio n of the uncharged

rape “at substantial length.” Trial counsel did not think any of hi s witnesses created “disaste rs” in his p

roof, in that none said anything

at trial that

was completely diff

erent from what he expected. However, he did think it “disast rous” tha t the tria l court ha d not allow ed him

to present th e test imony of Dr. I

ra Lew, a psy

chiatrist who had treated the victim. He said Dr. L ew was origina lly listed as one of the State’s witnesses, but the State h ad opted not to call h im at trial

. Having antic ip ated tha

t would oc cur, tria

l counsel also subpo enaed Dr. Le w, believ ing that his t estimony would be i nstrumen

tal to show

that the victim thoug

ht of her self as so

phisticat e d an d wo rl dl y, rather than as shy and retiring, as she had a ttempted t

o portra y he rself at trial. I n spite of trial counsel’s strong ar gu me nt s o n t he is su e, th e t ri al co ur t r ef us ed to al lo w D r. Lew ’s te st im on y, and this court upheld that decision.
Sheila Hudson testified she had been friends with the petitioner for over fifteen years and had dated him while he was in the process of divorcing the victim’s mother, before he met his present wife. They re

mained friends after the

petitioner’s marriage to his current wife , and she first learned of the indictments from the petitioner. Sometime after the petitioner had been charged but before the trial, Hudson and her son encountered the victim at a mall where the victim also told her about the charges. When she asked the vi ctim what was going

on, the victim told her , “I ’m getting my revenge. I’m fina

ll y g oing to g et my

reveng e.” She a sked, “Re venge for wha t?” and the victim replied, “Revenge for the way me and Josh have been treated for all these y ears.” Accord

ing to Ms. Hudson, the victim told her she was “sick” of the fact that she and Josh had to dochores and were getting grounded, while their step- siblings never had to do any thing.
Ms. Hudson testified she told the petitioner about the conversation. Although the petitioner told her he had in turn informed trial counsel, she was not subpoenaed as a witness and trial counsel didnot contact

her until a

fter the trial, when he tel ephoned to ask her

to relay her conv ersation

with the victim. Ms. Hudson acknowledged she had known trial counsel wa s representing the petitioner, butshe did not

herself try to contact him before the trial. She said she d id not atte nd the tria l, despite3 Bec ause Josh W oods and the petit ioner s hare t he same l ast na me, we will refer to the witne ss as “Jo sh” to a void having to use his entire name so that his tes timony will

not be confused with that of the petit

ioner. -6- being friends withboth the petitioner and his wife, because the petitioner had aske d that she not do so. Ms. Hudson testified the petitioner was humiliated by the c harges, imply

ing that was the reason he did not want her to attend the trial.
Ms. Hudson’s fifteen-y ear-old son, Chris Hudson, testified he was about ten y ears oldwhen he an d his mother encountered the victim at a mall around Christmas in 1996. All he coul d remembe r about the incide

nt was tha

t the victim mentioned the petitioner, and she and his mother then engaged in conver sation.
The petitioner’s son, Josh Woods , 3 did not respond to his subpoena to appear on the original date of the evide ntiar y hearing. The post-conviction court therefore issued an attachment, causing him to be brought to the April 6, 2001, continuation of the hearing in custody . Josh’s testimony at the evidenti ary

hearing concer ned tria l counsel ’s alleg ed failu

re to adequately

prepar e his trial te st im on y. He testified he and trial counsel spoke for about a minute during a meeting he attended withhis father

in counse l’s offic e, and fo

r “[a]ppro ximately

five-to-seven minutes” during a meeting at the petitioner’s house. In addition, he said he may ha ve had another brief conversation with trial counsel prior to trial. Trial counsel did not review with him the reports prepared by the Department of Children’s Services (“DCS”) employ ee who ha

d investig ated the

charg es of chi ld abuse ag ainst the petitioner, and Josh said he had not realized he would be cross-examined about the information he had provided to the DCS investigator. He testified that he had become confused when answe ring the assistant

district a ttorney gener al’s que stio ns and thought his testimony wo ul d “ [m ]o st de fi ni te ly” have been more credible had he been be tter prepared before trial. He a cknowledged, however, that in addition to the time trial counsel spent talking directly with him, he had been presen t in m eetin gs trial counsel held with his father, and therefore “kne w what the trial was about and what was going on[.]” He a

lso ackno wledge d he had te stified tr uthfully and said h

e did not know if

his testimony would have been any

different had trial counsel spent more time preparing him for trial.
In response

to questi ons by t

he post-c onviction

court, Josh

explained

that he ha

d failed to respondto the subpoena because he fea red that if h e appeared in court he would be arr ested and taken to jail on an outstanding violation of probation warrant. He said he wa s not hesitant to testify for his father. He loved his sister and maintained a relation ship with

her, but believed his father was innocent

. The petitioner

testified, contrary

to trial counsel’s testimony, that he and c ounsel agreed that evidence of the unc

harge d rape w ould

not be brought up at trial. He said trial counsel told him that if the State atte

mpted tobring the evidence in, he would do every thing he could to keep it out. The petitioner was ther efore s urpris ed w hen trial counsel introduced the evidence himself. When he complainedand asked wh y tr ial couns el had don

e it, counsel told him, “It slipped. I ’m sorry.” H e said he talkedwith trial counsel at least three times before trial about the testimony Sheila Hudson could provide in his defe

nse, but tr ial couns el was no t interes ted, telling the p etitioner that they did-7-

notwant to “clutter the jury ’s minds up with too many people.” He was un

happy withtrial counsel’s performance

at trial, but allowed him to continue his representation because he had alr eady paid for his services through the direct appeal of the case. Trial counsel, recalled as a re buttal witn

ess by the State, reiter

ated that he had dis cussed w ith boththe petitioner and Josh before trial that part of his trialstrat egywould be to introduce the Roane County incident in order to have Josh refute it. He had no memory of the pe titioner’s having complainedto him abou

t that stra tegy either a t or afte r the tria l, and was positive he never told the petitioner he had le t the evid ence “s lip.” Alth ough unh appy about the verdict , th e petitionerhad appeared satisfied with his representation at trial, and trial counsel had continued to repre sent him after trial, fi ling a di

rect ap peal tothis court, a

petition to rehear, and an application for permission to appeal to the supreme co urt. Trial counsel tes tified he had hand

led two cr

iminal ca ses with similarfacts not long before the petitioner’s ca se, one of whichresulted in an acquittal, and the other of which was dismis sed in the

middle of a

jury trial.
The final witness was the vict im, who tes tified tha t Ms. Hudso n’s acc ount of the ir conversation at the mall was n ot accur ate. Ac cording

to the vic tim, the conversation occurred after , rather than before, the trial and consisted of her asking if Ms. Hudson had hear d what had happened to the petiti oner, and Ms. Hudso n telling her that s he d id not belie

ve her a llegat ions. The

victim testified she reme

mbered h aving sa

id something to Ms. H

udson about having

to get justice a nd said she had walked away

from Ms. Hudson after Ms. Hudson told her she did not believe the allega tions. The victim w as confide

nt the con

versatio n had occ

urred a round Chr

istmas time , after

the trial , because she remembered there were Christmas decorations at the mall.
On July 17, 2001, the post-conviction court entered an order deny ing the petiti on for pos tconviction relief. The court found, inter alia , that there was no evidence trial counsel was deficient in his investi gation a

nd prepa ration fo r trial, including hi s p re pa ra ti on of th e w it ne ss es ’ t es ti mo ny; trial counsel’s decisions regarding w hich witnesses to call at trial were part of a so und t rial s trate gy which the post-conviction court would not second-gue ss; trial c ounsel ha d not known

of Sheila Hudson before the trial; trial counsel fully developed the issue of credibility of the witne sses at tr

ial; and all other

allega tions of de

ficienc y in

counsel’ s perfor

mance a mounted to

“[issues] of

choice i n presenting a defen se that the events di d not occu

r.” Acc ordingl

y, t he post- conviction court concluded that the petitioner had not met his burden of demonstrating that he was denied the effectiveassistance of counsel by showing that trial counsel was deficient and he wa s prejudiced as a result, a nd denied

the petiti on. Ther

eafter , the petitio n er filed a timely appeal t o this cour

t, challenging the post-conviction court’s denia l of the petition.
ANALYSIS
On appeal, the petitioner asserts trial counsel provided ineffective assistance by d elibera tely intr oducing evidence of the uncharged rape; failing to elicit denials of the allega tions from the petitioner during his trial testimony; asking questions of

the petitioner and the victim that contained the premise the alleged offenses ha d occurred; failing to identify , locate, and call Sheila Hudson as-8-

a witness a

t trial; op ening th

e door to t

he St ate’s i ntroduction of evidence that the victim had reported the rapes to third parties t wo y ears af

ter their occurr ence; a nd failing to make hi s reques t for a special jury

instruction in writing, as required by the Tennessee Rules of Criminal Procedure.
I. Post-Conviction Standard of Review
T he post-con viction petitioner bears the burden of proving his alleg ations by clear and convincing evidence. See Tenn. Cod

e Ann. § 40 -30-210(f). When a n evident iary hearing is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal u nless the evidence preponderates ag ai nst them. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1 996). Wher e appell ate review involv es purel y factual issues, the ap pella te cou rt sho uld n ot rew eigh or reevaluate the evidence. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trialcourt’s applica tion of the law to the

facts of the case is de novo , with no presumption of correctness. See Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which pr esents mixed questions of fact and law, is reviewed de novo , with a presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001); Burns , 6 S.W.3d at 461.
II. Ineffect ive Assist ance of Couns el
To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show boththat tria

l counsel ’s perf

ormance was def icient, a nd that counsel’s d

efic ient p erformance prejudiced

the outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 6 87, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that

same standard for determining ineffective assistance of counsel that is app lied in federal cases also applies in Tennessee ). The Strickland standar d is a two- prong te st: First, the defe

ndant mu st show that counsel’s performance was deficie nt. This requires showing that counsel made errors so serious that counsel w as not functioning as the “c ounsel” g

uaranteed t he d efe ndant by t he Sixth Amendment. Sec ond, the d efenda nt must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose r esult is reliable. 466 U.S. at 687, 104 S. Ct. at 2064.
The deficie

nt perfo rmance prong o f the test

i s satisfi ed by showing

that “counsel’s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goadv. State , 938 S .W.2 d 363, 369 (T enn. 1 996) ( citi ng Strickland , 466 U.S. at 688, 104 S. C t. at 2065; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the test is satisfied by showing a reasonable probability , i.e ., a “probability suff icient to undermine-9-

confidence in the outcome,” that “but for counsel’s unprof essional err ors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068.
Becau se both prong s of the te st m us t be satisfied, a failure to show either deficient performance

or resulting prejudice results in a failure to establish the claim. See Henley , 960 S.W.2d at 580. For this reas on, courts need n ot approach the Strickland test in a specific order or even “addres s both com ponents of the inquiry if the de fendant makes an insufficient showing on one.” 466 U.S. at 697 , 104 S. Ct. at 2069; see also Goad , 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”). III. Petitioner’s Specific Allegations of Ineffective Assistance

A. Tri al Cou nsel ’s In trodu ction of Un charg ed Cri me The petitioner first contends trial counsel provided ineffect ive a ssistance

by d elibera tely introducing evidence of

the alleged incident in Roane County . The petitioner argues that, given the well-recognized

danger that other cr

ime evid ence wi ll unfair

ly p rejudic e the jur

y a gainst a defenda nt, no reasonable defense attorney would have adopted trial counsel’s strategy of introducing evidence of the uncharged rape. He

asserts trial cou nse l’s error was compounded by his failure to prepare Josh for th e DCS e viden ce used to im peach h is tes timo ny, and by his failu re to f ollo w thro ugh with his “profe ssed tria

l strateg y” by e liciting a denial of the Roa

ne County

incident

. The State responds that counsel’s introduction of the uncharged rape w as a strategic decision made in the context of a reasonable trial strategy , which cannot constitute ineffective assistance of counse l.
We ag re e w it h t he St at e t ha t t he pe ti ti on er di d n ot sh ow by c lear and convincing evidence that t rial counsel delib erately introduc ed the unc

harge d rape w ithout his c onsent and again st hi s wishes. The petitioner testified trial counsel assured him the eviden ce was not admissible and he wo ulddo everything

in his power to keep it out if the State attempted to bring it in. In la te r te st im on y, however, the petitioner indicated he remember ed trial counsel instructing Josh on how to testify in the event the e vidence was introduced. The petitione r said tri al counse

l told Josh he did notthink the evidence would be brought up, but if it was, all he had to do was tell the jury who “took [him] back an d so forth .” Trial counsel’ s testimony , by

contras t, was unequivocal that he ha d discussed his trial strategy , including his introduction of the uncharged rape, a

t substantial length withthe petitioner prior to trial. He said he told the petitioner the evidence could be negative, but he thought it would help his case, given the fact that Josh would be able to refute the allegation by testifying that the victim had not been present during the drive to the treatment c enter. Trial counsel was also confident he never told the petitioner that he had let the e vidence “slip.”
We further

agree with the State that the petitioner has not shown that trial counsel’s decision to introduce evidence of the uncharged ra pe constitutes ineffective assistance of counsel. The Strickland

court ca uti oned that judicial r

eview of an attor ney ’s perf

ormance should be “

highly deferential,” with every a

ttemptmade to “eliminate the distorting effects of hindsight, to reconstruct4 Only a few po rti ons of the tri al transcri pt, most notably, voir dire of t he jury and closing arguments , were incl uded i n th e recor d before this court. W e have, however, taken judici al notice of t he entire t

ranscript of t

he petition er’s trial , havi ng de termin ed tha t it was nec essary fo r us to re view p ortion s of the trial te stimon y in ord er to con duc t a thoro ugh re view o f the issues the petition er raise s in this app eal. -10- the circumst

ances of counsel’ s challe

nged c onduct, a

nd to eval

uate the conduct f

rom c ounsel’ s perspective at the time.” 466 U.S. at 689, 104 S. Ct. at 2065. Thus, when analyzing a petitioner’s allegations of ineffectiveassistance of counsel, this court must indulge in a strong presumption that the conduct o f counse

l fellwithin the range of reasonable prof essional assistance, see id. , 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-g uess the tactical and strategic choices made by trial counsel unless they were

uninformed because of inadequate pre paration. See Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982).
The record

supports t he post-c onviction

court’s finding

that tria l counsel a dequate ly prepar ed and investigated the case. Trial counsel was obviously a ware of the risk of introducing evidenc e of an uncharged crime. Howeve r, under the circ um stances that existed in this case, where the petitioner’s son would b e able to refute that the victim had b een pre sent on the trip to Ro an e C ou nt y, counsel belie ved the e vidence would help the petitioner’s defense by diminishing the victim’s credibility. We cannot conc lude that this tactic was unreasonable.
The petitioner asserts trial counsel’s attempt to use Josh to refute theRoane County incident was “doomed t

o failure , and wasnot a stra tegy which wou

ld have been employ ed by any reasona ble attorney.”We respectfully disag ree. Although Josh testified at the hearing that he thought he could have been be tt er prepared at trial, he was unable to say that his testimony would have been a

n y different had tria l c o unsel spent more time preparing him for cross-examination. Trial counse l testified he had se

veral c onversa

tions to pre

pare Josh f

or trial. He said he was fa miliar wit h Josh’s social servi ce records and was a ware tha t the DCS wo

rker wh o investig ated the charg es of chi ld abuse was on the

State’s w itness lis t. However, t rial counsel believed Josh would make a good witn ess for the de fense and thought he would be able to preve nt the DCS evidence from being admitted. Under these circumstances, we cannot conclude that trial c ounsel’s decision to have Josh refute the deta ils of the u

ncharg ed crime

in an atte

mpt to discr

edit the victim’s a

llegat ions was a tactic that no reasonable defense attorne y would have e

mployed. The petitioner also argues trial counsel wasdeficient for failing to follow t

hrough with his trial strate gy b y e liciting

from the p etitioner

on direc t examinati on a denia l of the Roa

ne County incident

. The trial transcript 4 reveal s, however, that the petitioner testified no one ever ac companied him on any

of the tri ps to pick u

p or retu rn Josh to the treatment center. Since the victim testified that the incident occurred in the petitioner’s pickup truck as they were re turning from lea ving Josh at the treatment center, the clear ef fect of the petitioner’s testimony was to deny that the incide nt had occurr ed. The p etitioner ’s direc t examinati on contains the fol lowing e xchange : Q All right. On those occasions when [Josh] came home, who would go get him?-11- A Me. Q Who would be with you?
A No one.

. . . . Q All righ

t. And who

would tak

e Josh back

to Camelot ?
A I would. Q And who wo

uld go with y ou all?
A No one. Q No one ev er went with y ou back to Camelot?
A No.
As to the cla

ims that trial counsel was ineffective by introducing testimony of the unc harged cri me, the record supports the finding of the post-conviction court that the pe titione r failed t o es ta bl is h t hi s w as ot he r t ha n p er mi ss ib le tr ia l s tr at eg y or th at he wa s p re ju di ce d t he re by. B. Failure to Elicit Denials of Rape Allegations from Petitioner
In a related claim, the petitioner contends trial counsel provided ineffective assistance by failing to elicit during his trial testimony denials of the charged and uncharged alleg ations of rape. He concedes trial counsel asked him about two of the alleged incidents on direct examination, but asserts he faile d to elicit

denials o f allfour of

the allegations. The petitioner argue s trial counsel’s failure to elicit denials of all four incident s, includi ng his failure to elicit a denial of the uncharg ed rape despite h

is testimony it was part of his trial strateg y to do so, made

his performance fall outside the range of competence de manded of attorney s in criminal cases and prej udiced th e outcome

of his case.
We conclude that the petitioner has failed to show thatcounsel’s performance in this rega rd was deficient, or that he was prejudiced as a result of counsel’s alleged defic iency in performance. As we have previously discussed, the petiti oner’s d enial of the Roane

County incident was implic it in his testimony that no one ever accompanied him on the trips to the treatment center . As for the three charged offenses, the e vidence was that two occurred downstairs in the television room and one occurred upstairs in the victim’s bedroom. The petitioner

concedes counsel elicited denials of the upstairs incident and one of the downstairs incidents, but maintains that he failed to elicit a denial of the secondincident downstairs. However, although trial counsel began his questioning by asking-12-

if there was ever a time “around midnight” when the victim came downstairs, the trial transcript, read in context, r

eveals t hat he el icited em p hatic de nials from the petitioner that neither the alleged upstairs incident nor either of the alleged downstairs incide nts had occurred: Q In regard to the testimony of [the victim] about these incident s that occurred there in y

our home, was there ever any incident where she came down around midnight to that lower room and y ou had these contacts with her that she described?
A No, sir. Q She described an other inc ident up in her bedr oom.
A No, sir. Q Those things did not happen?
A They did not happen. Q Do you love y

our son and your da

ughter?
A Yes. I

think my daughter ’s very mixed up at the moment. But I still love her, y

es. The record

does not support the petitioner’s claim that trial counsel did not elicit denials that the charged and

uncharged offenses had oc curred. We conclude that the post-conviction court was correct in determining that the petitioner was not prejudiced b y tr

ial couns el’s han dling of

these matters.
C. For

m of Trial

Counsel’s

Questions t

o Petit ioner and Vi ctim
The petitioner next cont ends tr ial counsel provided ineffective assistance by asking two questions during the petitioner’s direct examina tion t estimony

and one q

uestion du

ring crossex amination of the victim that implied the victim’s allegations were true. During tr ial cou nsel’ s direct examination of the pe

titioner, he asked

whether Decemb er 1995, which the petitione r had just testified was the date he received nec k injuries in an automobile accide nt, was “af

ter the incidents complainedof

thi s mo rn ing by y our da ug hte r?” He also

asked the petitioner, “Now y ou heard your daughter describe some incidents that occurred down in the downstairs – wha twas it, a T V room ?” The petitioner

asserts both of these compound questions contained the premise the incidents “had in fac t occu rred,” and his responses could have easily left the jury with the impression he wa s admitting not only that he sustained the nec k injuries on a

certain date and that there was a TV room downstair s, but also that the incidents “had indeed occurred.” Similarly , the petitioner complains trial counsel’s question to the victim, “You d idn’t tell them about these activities with your-13-

father?”containedthe premise that the allegations were true. He asserts that

no competent attorney would have phr ased such question s to either the petiti oner o r the victim, and counsel’s error was compoundedby h

is failur e to “cure” the “prejudicial confusion” c reated by eliciting denials from the petitioner of each specific alleg ation.
The State argues that trial counsel did not concede that the rapes had occurred, and we ag

ree. When the quest

ions and a

nswers a re rea d in context, it i s clear that neither trial counsel nor the petitioner ever acknowledged o

r implied that the victim’s allegations were true. Trial counse l referred to the incidents as “alleged” numeroustimes throughout th e trial; n o reason able

jury could have interpreted his failure to insert the word “alleg ed” on each and every instanc e he referred to the inci dents as his or the petitioner’s admission that the allegations were true. A re view of the testimonythat occurred ju st prior to trial counsel’s question to the victim illustrates this point. After eliciting that

the victim had herself been in treatment for “[u]nruliness and depression and chemical depende ncy ,” the fo llowing q

uestions a nd answe rs were exchang ed: Q Now didyou

tell any of those people at Camelot during that period of time, a

bout these

allega tions ag ainst

your fathe

r of a sexual nature?
A No. Q You did not ?
A No. Q And y ou were

outside the home, w ere y ou not?
A As in how? Q When y ou were

at Camelo t; yo

u were th ere at Ca melot.
A I did not stay. I

did not stay. I

had day tre atment. I lived at home. I went in the

morning s, and ca

me home in

the afte rnoons. Q But

when you we

re being interviewed, you were at Camelot with a cou

nselor or a psychiatris t, were y

ou not?
A When I was being intervie wed how? Q By

a counse lor or a p syc

hiatrist.
A No, I

did not say

a word to

them.-14- Q You didn’t tell them about these activities with your fa ther?
A No.
The record

supports the determination of the post-conviction court that the petitioner failed to establi sh that he

was pre judiced b y tr

ial couns el’s que stioning

of the vic tim as to the se matter s. D. Failure to Call Sheila Hudson to Testify at Trial
The petitione

r next cont

ends tria l counsel was inef fecti ve for fa iling to “identify, loca te, interview and call Sheila Hudson” as a witness on his behalf at trial. He asserts he demonstrated trial counsel knew of

Hudson’s existence at trial by “his positive testimony ” at the evidentiary he aring that he provided trial counsel with her n ame and telephone number before trial, the “lac k of memory on the part

of [trial counsel]” about whether he had been informed of her name before trial, and “the testimonyof

th e w it ne ss th at sh e w as co nt ac te d b y co un se l s ho rt ly after th e tr ial.” (petitioner’s emphasis). The State contends the petitioner did not show by clear and convincing evide nc e that trial counsel knew of

Hudson pr

ior to Novembe

r 6, 1997, the date

his notes r

eflected she told h

im of her mall conversation with the victim. We agree with the State.
The record supports the po st -conviction court’s finding that trial counsel did not know of Sheila Hudso n prio r to tr ial. A ltho ugh the petitioner testified that he provided trial counsel with Ms. Hudson’s nam e and number before trial, and Ms. Hudson testified the petitioner told her he had informed trial counsel of her existence, trial counsel had no memory of having ever

heard he r name until af ter the tr ia l. We also note that Ms. Hudson testified the petitioner asked her to stay away from the trial, which does not support the petitioner’s claim that he asked trial counsel to call her as a witness on h is behalf. In a ddition, the victim and Ms. Hudson’s son both testified that the conversation between the victim and Ms. Hu dson occurr ed around Christma s time. The victim testified that she h ad a specific memory of Christmas decorations already being up at the mall, a circumstance making it unlikely that the convers a tion occu rred before the

October trial. Ms. Hudson’s son did not hear the conversation, and the victim deniedthe substance of the conversation Ms. Hudson reported. Questions concerning the credibility of the witnesses, the weight and value to be give

n their te stimony , and the f actual is sues rai sed by

th e evidence are resolved by the post-conviction court and not this court. Black v . State , 794 S.W.2d 752, 755 (Tenn. Cri m. App. 1990). The post-conviction court obviously chose to accredit the testimony of trial counsel and the victim over the testimony of the pe titioner and Ms. Hudson. The evidence does no t prepond erate agains t this cre dibility

determin ation by

the post- convicti on court. The petit ioner is n ot entitle d to post-c onviction relief o n this claim. E. Trial Counsel’s Invitation of Error
The petitioner next claims trial counsel provided ineffective assistance because he “invited error” by eliciting testimony from the victim’s mother that the victim

had told he

r about the rapes
.-15-

In his direct appeal to this court, the petitioner contend ed that th e tr ial court erred in allowing the victim totestify she had told a fr iend about the rapes two y ears after their occurrence, a rguing that “two years is ‘w ell beyond any parameters established by any Tenne ssee cas e re gardin g fres h complaint.’” Woods , 1999 WL 2831 , at *2 . This court concluded on direct appeal that any error in admitting the tes timony was h armless because it was trial counsel who first elicited testimony from the victim’s mother that the victim had told a third party , i.e. , the mothe r, about t he rape s:
Even assuming

it was er

roneous t o admit J.W.’s “fresh complaint ” testimo ny, the defe ndant is not entitled to a reversal. A review of the record reveals that defe nse counsel fi rst intr oduced ev idence that J.W. had told a third party about the rapes. . . . . Th e defenda n tcomplains of evidence that J.W. told a third party, her friend, about the

rape inc idents, bu

t he invit ed tha t error b y f

irst eliciting si mi la r t es ti mo ny from another third party , J.W.’s mother. Moreover , t estimony

that J.W. con

fided in a

friend w as merely cumulative to the evidence defense counsel had alr eady e licited from J.W.’s mother. Because of thi s, J.W .’s testimony that she told her friendabout the rapes did not affec t the resu

lt of the trial. Thus, any error in admitting this testimony was harmless and does not wa rrant reversal.
Id. at *3.
The petitioner argues trial counsel was defic ient for opening the door to the “damag ing evidence” of

the victim’s having reported the alleged rapes to thirdparties, and that his deficiency can “only proper

ly be viewed a s a break

down of the adver sarial pr ocess in this case.” However, we agree with the Sta

te that the petitione r failed to show how trial counsel’s questioning of the victim’s mother prejudic ed the out

come of h

is trial. T

he State s ubmits t

hat, rather than prejudicing the petitioner, evidenc e that the victim w aited ove r two year s before informing any one of the rapes “probab ly undermined the Sta

te’s ca se, since

this was ul

timately an issue o f credi

bility between [the victim] and her father.” The record supports the determination of the post-conviction court that the petitioner failed to establish that he was prejudiced by trial counsel’s handling of this matter. F. Failure to Submit Written Request for Special Jury Instruction
Fi na ll y, the petitioner contends trial counsel was ineffective for failing to request in writing that the trial

court ins truct the

jury that it could conside

r, in its de

terminat ion of the

victim ’ s cred ib il it y, the fact that she had not immediately reported the rapes after they had occurred. Trial counsel raised the trial court’s failure to give t he reque sted instr

uction as an issue o n direct appeal, where this cour

t conclud ed the iss ue was wa

ived bec ause

trial cou nsel did no t file

a written r

equest for the instru ction bef

ore th e j ur y r etired to deliberate, in accordance with Tennessee Rule of Criminal Procedure 30(a). Id. at *6. Because th e petitioner did

not show a

reasona ble proba bility-16-

that the outcome of his trial would have been different had the jur y instruction been g iven, we conclude he is not entitled to post-conviction relief on this claim.
The petitioner cites United Sta tes v. Cron

ic , 46 6 U. S. 648 , 65 9, 1 04 S . C t. 203 9, 8 0 L. Ed. 2d 657 (1984), and Brimmer v. State , 29 S.W.3d 49 7, 508 (Te nn. Crim. A

pp. 1998) , to argue that trial counsel’s combined alleged deficiencies in per formance resulted in an “actual bre akdown of the adversarial process,” Cronic , 466 U.S. a t 657, 104 S. Ct. at

2046, the

reby eliminating the ne ed to show prejudice. The post-conviction court found, however, that tria l counsel fully develope d the issue of the credibility of the witnesses at trial, adequately investigated and prepared the ca s e, did notknow of She

ila Hudson ’s e xistence prior to trial, and that all other allegations of deficient performance

were choices ma de by t rial cou nsel as pa rt of his tr

ial strat egy . The re cord supp orts these findings.
CONCLUSION
Havi ng reviewed the entire record in this case, including per tinent portions of the direct appeal record, we conclude that the petitioner has fa iled to meet his burden of demonstrating that he was denied th

e effe ctive as sistance

of counse

l. Accordingly , we affirm the post-conviction court’s denial of the petition for post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE