### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON June 7, 200 5 S es sio n

CHA RLE S GOOD E v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. P -26257 Ar thur T. Benn ett , Judge

No. W2004-01577-C CA-R 3-P C - F iled October 25, 2005

Petitioner
, C h ar l es Go o d e, ap p ea l s t h e t ri al co u rt ’s d i s m i s s al o f h i s p et i t i o n fo r p o s t -c o n v i ct i o n relief

. I n this appeal, Petitioner ar g ues that his counse l ’s re prese ntation at trial was de ficient be cause he faile d to a de qu a te ly

inv e sti g a te Pe tit ion e r’ s c a se a ndfaile d to e ff e c tiv e ly c ro ss- e xami ne the vic tim

. Af te r a tho ro ug h r e vie w o f the re c or d, we a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J
., delivere d the opi nion of t he court, in which D AVI D G. H AYES and A L AN E. G L EN N , J J ., joined.

R. Price Har

ris, Memphis, Tennesse e, for the appe llant, Charles Goode

.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Se th P

. Kes tne r, As sis ta nt A tto rn e y Ge ne ra l; Willi a m L . G ibb on s, Di stric t Atto rn e y Ge ne ra l; a ndL e e Cof fe e , A ssi sta nt D ist

ri c t A tto rn e y

Ge ne ra l, for the a ppellee, the State of Tenne ssee.

OP IN ION

F oll ow ing a

jury tr ia l, P e tit ion e r w a s c on vic te d o f a g g ra vate d r ape and was se nte nc e d to twenty -five y ear s in the Tennesse e De p ar tment of Correc tion. This C ourt aff irmed Petitioner’s conviction and se ntencein State v. Charles Goode
, No. W 20 0 0

- 0 2 2 6 7

- CC A

- R3

- CO
, 2 0 0 1 WL 1042145 (Tenn. Crim. App., at J ackson, Sept. 10, 2001), perm. to appeal de nied (T en n

. De c. 31, 20 01 ). Th e fa c ts s ur

ro un din g the of

fe ns e we re su mma

ri zedby thi s Co urt a s f

oll ow s:

I n Marc h 1999 Eliz abeth Reed, the victim, was a r esident of Mid-South Christian Nursing Home in Shelby

County , Tenne ssee. She was seventy (70) y ear s of ag e and had bee n crippled sin ce birth due to cer ebral palsy . Although she was a ble to fee d and partially dress he rself, she was not able to move on her ow n. She also could not participate i n gen er al ac tiviti es, and w as phy sically helpless. She had ne ver lived alone, r esiding at home until her mother' s death in 1980, and at Mid-South since that time.-2-

The de fenda nt was a c harg e nurse at Mid-South, and was one of sever al per sons who reg ularly provided car e to the victim. The victim testified that on the nig ht of Marc h 30, 1999, as she sat watching television, the defendant entered he r room and

announce d that it was ti me for bed. He then lifted the victim, placed he r in her be d, stripped her of her clothes, climbed on top of her, and dig itally penetr ated he r vag ina, causing her to blee d profuse ly . During these events he also kissed the victim on the mouth and told her he love d her. The victim testified that she did not consent to any of the de fe nd a nt' s a c tio ns

.
At the conc lusion of these eve nts the defe n d an t observed that the victim was ble e din g , b ut t old he r that sh e wo uld be a ll r ig ht. He be g a n to c ha ng e he r b e d li ne ns , but was i n t er ru p ted when another c are g iver e ntere d the room. He left without tr e a tin g he r i nju ri e s.
Roosevelt Nelson [“Rose”], a ca reg iver at the nursing home, testified that on Mar ch 3 0
, 1 9 9 9
, [ s ] h e w as m ak i n g re gu l arro u n d s

. W h en [ s ] h e f i rs ten t er ed t h e v i ct i m 's
room, the defe ndant, a nurse, was also in the room. He was stripping linens from the bed, a ta sk he did not usuall y perf orm. Nelson off

ere d to complete the task. The defe ndant acc epted the offe r and lef t the room. He of

fer ed no explanation about why t h e p at i en twa s b l ee d i n g.

Nelson stated that whe n [s] he ente red the v i ct i m 's bedroom [s] he wa s "kind of shocked,” appar ently beca use of the blood [s]he obse rved. N elson took the victim out of be d, pla c e d h e r i n a

wh e e lc ha ir , a ndtoo k h e r i nto the bat hro om

. Th e vic tim

seeme d unwilling to have Nelson touch he r. Ne lson observed that the victim was bleeding , and [s] he wa s unable to stop the flow of bl ood even after [s] he cle aned he r. [ S ] h e p l ac ed a p ad o n h ert o co n t ai n t h e b l ee d i n g.

Whe n N e lso n r e turne d th e vic tim to the be d a ndc on tin ue d to cha ng e the be d li ne ns , [s] he noticed that the fitted sheet normally place d over the mattress had been r eplac ed by a flat sheet. The blue pad norma lly place d acr oss t h e b ed o n t o p of the dra w sh e e ts w a s lo c a te d u nd e r the fl a t sh e e t cove ring the ma ttr e ss, a ndwa s so ile d w ith blood.

Nelson then found the defe ndant, advised him that the victim was in pain, and aske d him to a d mi n is te r p a in me d ic a ti o n

. T h e d e f e n d a n t r e s p o n d e d th a t h e a lr e a d y had g iven her medication. The defe nd an t d i d not provide any information about the vic tim ' s in

jur ie s.

L ater the same e v ening the victim was hospitalized because of he r injuries. She continued to bleed f

rom her va g inal are a.-3-

Marie F izer, the victim's older sister, testified that she was c alled about midnig ht and told of her si s t er 's h o s p i tal admission. Bec ause she did not drive at nig ht, she was unable to g et to the hospital until the nex t morning. When she did a rrive, she found that the victim was very

upset. The victim rema ined i n the hos pital for four day s, and then was move d to a diffe rent nursing home bec ause she was afra id to return to MidSouth.

Sally DiScenza, a fore nsic sexual a ssault nur se, was called to e x amine the victim one da y a ft e r the a ssa

ult . Sh e te sti fi e d th a t sh e ob se rv e d a n acut e, recent he ma tom a around the vag inal are a, and bruising on the upper inne r thig hs. The victim also had

a n a c ute la c e ratio n in the inn e r labia a ndvu lva , c a us e d b y

a sh arp ob je c t. T he vic tim stated that the defe ndant had digitally penetr ated he r. As a post-me nopausal woma n the victim was more prone to injury due to a lac k of estrog en. Ms. DiScenza testified that th e vic tim ' s inju ri e s we re de fi nit e ly c a us e d by tr a uma , a ndwe re c on sis te nt w ith sexual penetration. She also noted t hat althoug h the victim was phy sically limit ed, she wa s alert, oriented, coope rative, a nd able to desc ribe what had happene d to her.

Ruth Boring , form er ch arge nurse at the Mid-South C hristian Nursing Home, testified for the defe nse. She stated that on appr ox imately fiftee n occa sions over two or three y ear s she had obse rved the victim eng ag ed in sexual masturbation using the brist le e ndof

a ha ir br us h. She a c kn ow le dg e d tha t she didno t r e c or d o r r e po rt the se inc ide nts to any on e a t t he ti me she ob se rv e d th e m. S he state d th a t sh e wi sh e d to prese rve the victim's priva cy . Boring a lso admitted that the victim had never exhibi ted any

visible problems with her vag inal are a. She ac knowledged that she was fir ed fr om her position at Mid-South before this incident oc curr ed.

Goode , 2001 WL

1042145, at *1-2.

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

Dr. Elbert Hines tes t i fi ed t h at he wa s the medica l director of the Mid-South Christ ian Nu rs ing Ho me a t th e tim e of the of fe ns e . H is r e sp on sib ili ti es inc lud e d o ve rs e e ing the patie nts ’ g ener al hea lth needs and tre ating them in time of acute i llness. Dr. Hines said that he had know n the victim for five y ear s, and that he medica lly evaluated her

at least onc e eve ry

six ty day s. Dr. Hines said that the vi ct i m h ad s u ffe red a fra cture d orbit when she f ell out of her w heelc hair in January 1999, but his recor ds did not indi cate any falls in Marc h 1999, the date of the offe nse.

Dr. Hine s was not on ca ll when t he victim was admitt ed to the hos pital on Marc h 30, 1999, bu t he sa w the vic tim

the fo llo wi ng da y . T he v ict im to ld Dr. Hi ne s th a t sh e ha d b e e n s e xua lly assaulted at approxim ately 10:00 p.m. the previous eve ning. T he victim said that Petitioner had digitally penetr ated her and cause d her pain. Dr. Hines said that the vi ctim had a two- inch lace ration in the vag inal are a and br uising whic h was c onsistent with a sex ual assault.-4-

Dr. Hine s s ai d that the victim had fre quent urinary trac t infections. Dr. H ines ag ree d that urinary trac t infections could ca use blee ding, but he could not rec ol l ec t wh et h er the victim had experience d bleeding as a r esult of her infec tions. Dr. Hines s ai d t h at a Foley cathe ter ha d been inserted into the victim by the time he examined her , but the lace ration was located one-ha lf to one inch away from the cathe ter. Dr. Hines rec alled that a medical report done at the t ime of t he victim’s ad m i s s i o n t o t h e h o s p i t al n o t ed t h at t h e v i ct i mh ad al s o co m p l ai n ed o f r ec t al b l ee d i n g.

Dr . Hin e s sai d tha t he ne ve r ta lke d to any on e fr om the pu bli c de fe nd e r’ s o ff ic e prior to t ri a l. He did not re member, how ever , telling Ly nn Davis, the dire ctor of nursing at the nursing home, that he ha d a ny

do ub ts a bo ut the vic tim ’s e xpla natio n f or he r i nju ri e s.

On cr oss-examination, Dr. Hines said that the victim was blee ding pr ofusely in the vag inal

are a at the time of

her a dmission which was not consistent with the insertion of a c atheter or any medication she w as taking . Dr. Hine s noted in his report that he did not believe that the victim’s injuries wer e self- inflicted or c ould have be en ca u s ed b y a fa ll. Dr. Hines said the la cer ation was about two inches long and would have been too pa inful for the vic tim to i nflict upon herse lf.

On redire ct, Dr. Hines ag ree d that it wa s impossibl e to te ll whe ther the bruises a nd lace ration

we re inc ur

re d at th e sa me tim e . H e sa id that the vic tim ha d d if fi c ult y c oo rd inatin g he r m ov e me nts

. Sally DiScenza, a nur se at the Sexual Assault Resource Center, saw the victim on March 31, 1999, at the re quest of the Me m p h i s P olice De partment. She said that a rape kit was usually

not prepa red w hen the se x ual abuse alleg ation was based on digital penetr ation. Ms. DiScenza said that sh e didno t sp e ak w ith a ny on e fr om the pu bli c de fe nd e r’ s o ff ic e prior to te sti fying a t tr ia l. O n c ro sse xami natio n, Ms. Di Sc e nza sa id that the vic tim tol d he r that Pe tit ion e r h a d p e ne tr a te d h e r w ith his penis and e

jaculate d on Marc h 26, 1999, but the incident was too far removed to be able to collect a sperm sample.

Pe tit ion e r s a id that he me t w ith his c ou ns e l th re e or fo ur tim e s prior to tr ia l. Pe tit ion e r s a id t h at co u n s el wa s n o tal wa y s o n t i m e f o r t h e m ee t i n gs , an d o cc as i o n al l y wo u l d m i s s a m ee t i n g. Pe tit ion e r s a id that he g a ve his c ou ns e l a lis t of wi tne sse s, bu t c ou ns e l di d n ot i nt e rv ie w the m. Petitioner said that Mari l y n M al o ne, L oy ce Mc Carthy and Judi th Branch could ha ve testified a s
c ha ra c te r w itn e sse s. He c on c e de d, ho we ve r, that no ne of the m kn e w a nythi ng abo ut the inc ide nt. Petitioner said that his counsel should have looke d at his employ ment rec ords and talked with other employ ees. Petitioner said that his counsel was not for cef ul enoug h during his cross-e x amination of the vic tim

.

On cr oss-examination, P etitioner testified that he m ade the decision not to testify at trial be c a us e he fe lt that th e jury ha d alr e a dy ma de up its min d to re turn a ver dic t of g uil ty . Peti tio ne r s a id that all of the State’s w itnesses lied at trial, but he did not know why they did so.-5-

On re dir e c t, P e tit ion e r s a id that th e vic tim of te n to ld “ wi ld t a le s. ” He s aid that it ma de it appea r that the victim could not walk when she t estified from her wheelc hair. P etitioner said that the vic tim

c ou ld w a lk, a ndsh e “ [put ] on a g oo d s ho w” a t tria l.

Pe tit ion e r’ s c ou ns e l te sti fi e d th a t he ha d b e e n p ra c tic ing la w f or tw e nty -t wo y e ars , mo stl y with the public defe nder’ s office

. He was Petitioner’s third counsel, and be g an re prese nting him on Aug ust 18, 1999. Counsel said that the State provided him with its di scovery materia l, and he g ave Pe tit ion e r c op ie s o f the do c ume nts

.
Counsel said that he did not interview Ms. DiSce nza prior to trial bec ause he knew the sc ope of her testimonyfrom her medical report. He said that a ra pe kit was not wa

rra nted when the sexual abuse w as dig ital penetration. Counsel said that he interview ed the witnesse s Defe ndant sug g ested, and Ms. McCarthy and Ms. Br anch were not on the l ist. I f they had bee n, he would have interviewe d the m. M s. B oring wa s a da ma nt that sh e ha d s e e n th e vic tim ma stu rb a tin g wi th a

ha ir br us h, so counsel fe lt that he had to put her on the stand. Counsel sa id that he sensed some hostility from the jurors during Ms. Boring ’s testimony

. Counsel interviewe d Ms. Malone who said that she had not

se e n a nythi ng oc c ur

in the vic tim ’s ro om on Ma rc h 30
, 19 99 . M or e ov e r, Ms. Ma lon e sa id that Ms

. B oring ’s ma stu rb a tio n s tory wa s “ pr e po ste ro us ,” so c ou ns e l de c ide d n ot t o c a ll h e r a s a wi tne ss.

C o u n s el s ai d t h at P et i t i o n ert o l d h i mt h at P et i t i o n erh ad n o ts ee n t h e v i ct i mm a s t u r b a t i n g. Ms. Bori n g ex plained that she did not re cord the incidents on the victim’s cha rt bec ause she was afr aid the v i ct i m ’s fa milywould be upset if she did. Counsel said he did not ask for the vic tim’s medical r ecor ds because P etitioner t old him there wa s nothing in the re cords to conf irm Ms. Boring ’s testimony

.
Counsel met more than thirtee n times with P etitioner’s wife . Counsel said she droppe d by his o f f i c e s o f r e q u e n t l y h e s t o p p e d r e c o r d i n g h e r v i s i t s

. W h e n c o u n s e l ’ s i n v e s t i g a t o r tr ie d to interview Ms. Good e, h o wever, her daug hter be came hy sterica l. Ms. Goode’s daug hter said that Petitioner had sexually abused her when she wa s ten. Counsel believed that the daug hter ha d spent approximately

six months in foster car e as a result of the a lleg ations, althoug h Petitioner was neve r char g ed with sexual abuse.

Cou ns e l sa id that a c c or din g to his re c or ds he me t wi th Pe tit ion e r thirte e n ti me s p ri or to t ri a l. He sa id that the State offe red to re commend a se ntence of twenty y ear s at 100% in exchang e for a plea of g uilty . Counsel sugg ested to Petitioner that they counter the State’s offe r with an a g ree ment to plead g uilty to the lesser offe nse of a g g ravated sexual battery in exchang e for

a sente nce of

eig ht y e ars . Pe tit ion e r d id n ot a uth orize the “ c ou nte ro ff

e r” a ndde c ide d to pr oc e e d to tr ia l.

Cou ns e l sa id that he did no t fe e l it wa s nec e ssa ry to int e rv ie w Dr . Hin e s pri or to t ri a l be c a us e he knew the scope of his testimonyfrom his medical reports. Moreove r, Dr. Hines’ report refe renc ed other sexual abuse a lleg ations by the vi ctim ag ainst Petitioner, and he wanted to avoid opening the d o o r t o t h a tt e s t i m o n y.-6-

Counsel said that he sent two letters to the district attorne y ’s offic e re questing the victim’s latest addre ss so that he could interview h er b ef o re trial. He ma de thre e attempts to conduc t the interview but wa s ref

used ac cess to the victim by the victim’s niece . On two d iffer ent occ asions Counsel viewed the vide otape of the victim’s deposi t i o n wh i ch was taken in conne ction with her

c ivi l la ws uit

a g a ins t the nu rs ing ho me so that he co uldg e t a fe e l f or ho w the vic tim

wo uldha nd le he rs e lf a t tria l.

The victim testified at trial f rom her w heelc hair. Counsel desc ribed the vic tim as “pitiful,” and it was “ tortuous” for her to testify . During cross-e x amination, he attempted to a sk backg round questions in order to esta blish t h at the victim had some manua l dext erity which would support Pe tit ion e r’ s d e fe ns e that th e vic tim ’s inj urie s we re se lf -i nf lic te d. He sa id that he a sk e d the vic tim what types of activities she liked to e ng ag e in at the nursing home, and the vic tim responded that she enjoy ed re ading her B ib l e. Af ter that, c ounsel felt it was prude nt not to continue this l ine of questioning, a nd he conc luded his cross-e x amination a short time later

.

On cr oss-examination, counsel said that h e wa s n ot awar e that anothe r male nur se wa s working on the vi ctim’s floor at the time of the offe nse. Nor w as he a war e that Ly nn Davis, the direc tor of nursing at the nursing home, appa rently made a note in her r ecor ds that Dr. Hines, during

a conve rsation on April 1, 1999, expressed some doubt a bout the victim’s expl anation of how she

wa s inj ur e d. Cou ns e l sa id, ho we ve r, he wo uldsti ll n ot h a ve c a lle d D r. Hi ne s a s a wi tne ss b e c a us e of the re fer ence s to other in ci d en t s o f sex ual abuse in his notes. Counsel was also not awar e that Kammie Glen sa id she was working the s ame shift as P etitioner on Mar ch 30, 1999, and that she saw nothing unusua l occur

that night. Counsel wa s not awar e that Roosevel t Ne l s o n [ “Rose”] had actua lly made two r eports about the incident, i nstead of just one. He said that both reports, howeve r,
we re c on sis te nt w ithe a c h o the r andc on sis te nt w ith Ms. Ne lso n’ s te sti mon y a t tria l.

Co u n s el said that he did not reme mber that the vic tim said during he r deposition that the nursing home had a

dog , even thoug h the nursing home di d not own any dog s. Counsel ag ree d that he wa s a wa

re that th e vic tim ’s de sc ri pti on du ri ng the de po sit ion of oth e r inc ide nts of se xua l a bu se alleg edly committed by

Petitioner did not match her description of the alleg ed dig ital penetration. Counsel observed, how ever , that he d i d not want to open the door to the fac t that the victim had testified in her de position t hat Petitioner had pe netrated h er once anally , and made her pe rform fellatio twice prior to the M ar ch 1 999 incident. Counsel said that he did not revie w the nursing ho me ’s re c or ds or

the vic tim ’s me dic a l c ha rt

.

T h e p o s t -c o n v i ct i o n co u rt ru l ed fr o m t h e b en ch at t h e c o n cl u s i o n o f t h e e v i d en t i ar y h ea ri n g. Ba sed on the e vidence hear d, the court found t hat counsel rende red effe ctive assist ance and denie d Petitioner’s reque st for post-convic tion relief.

II. Stand ard of Review

Petitioner arg ues that the trial c ourt err ed in finding that co u nsel’s assistance befor e and du ri ng tr ia l was ef

fe c tiv e . Sp e c if

ic a lly , Pe tit ion e r c on te nd s in his a pp e a l th a t c ou ns e l f

a ile d to-7-

art ic ulate a

“ g oo d r e a so n” wh y

he didno t c a ll Dr . Hin e s as a de fe ns e wi tne ss o r w hy he didno t us e the victim’s deposition to demonstrate her senilityand the inconsistencies in her descriptions of the ty pe s o f a lle g e d s e xua l a

bu se

. P eti ti on er also c on te nd s th a t c ou ns e l w a s in e ff e c tiv e fo r f

a ili ng to reque st the personne l f

iles of the other

employ ees, f

or fa iling to bring out that the victim complained of re c ta l, n ot v a g ina l, b le e din g wh e n s he wa s a dmi tte d to the ho sp ita l, f or faili ng to m or e vig or ou sly

cross-e x amine the victim, and f or fa iling to discover

an alternative theory

as to how the victim was injured on Mar ch 31, 1999.

A petitioner see king post-c onviction relief must establish his al l ega t i ons by clea r and convincing evidenc e. Te nn. Code Ann. § 40-30- 210(f) (2003). How ever, t h e t ri al court’s application of the law to the fa cts is review ed de novo
, without a presumption of cor

rec tness. Fields

v . S tat e , 4 0 S.W.3 d 450 , 458 (T e nn . 200 1) . A cla im tha t cou ns e l re nd e re d in e ff e c tiv e a ssi sta nc e is a mix ed question of f

act a nd law and there fore also subject t o de novo re view. Id. ; State v. Burns
, 6 S.W .3d 453, 461 (Tenn. 1999)

. When a petitioner see ks post-conviction relief on the basis of inef

fec tiv e as sistance of counsel, he must establish that counsel’s per formanc e fe ll below “the rang e of c ompetence demande d of attorne y s in c riminal case s.” Ba x te r v . R os e , 5 2 3 S

. W

. 2 d 9 3 0
, 9 3 6 ( T e n n

. 1 9 7 5 )

. In

a dd iti on , h e mus t sh ow that c ou ns e l’ s in e ff e c tiv e pe rf

orma nc e a c tua lly adv ers elyimp a c te d h is defe nse. Strickland v. W ashington , 466 U.S. 668, 693, 104 S. Ct . 2052, 2067, 80 L . Ed. 2d 674 (1 98 4)

. I n r e vie wi ng c ou ns e l’ s p e rf orma nc e , th e dis tortio ns of hin ds ig ht mus t be a vo ide d, a ndthi s Court will n o t s ec o n d-g uess counse l’s decisions re g arding trial strateg ies and tac tics. Hellard v. State, 62 9 S. W.2 d 4 , 9 (T e nn . 1 98 2) . T he re vie wi ng cou rt , th erefo re , s ho uldno t c on c lud e that a pa rt ic ula r a c t or omi ssi on by

c ou ns e l is un re a so na

ble me re ly

be c a us e the str a te g y

wa s u ns uc c e ssf

ul. Strickland, 466 U.S. at 689, 104 S. Ct . at 2065. Rather, c ounsel’s alleg ed err ors should be judg ed from counse l’ s p er s pective at the point of time they wer e made in light of a ll the fac ts and circ umstances at that time. Id. at 690, 104 S. Ct. at 2066.

A petit ioner must satisfy both prong s of the Strickland test befor e he or she may preva il on a cla im of ineffe ctive assistanc e of c ounsel. See H enley v. State, 960 S.W .2d 572, 580 (Tenn. 1997)

. Th a t is, a pe t i t i o n e r

m u s tn o to n l y

s h o w t h ath i s c o u n s e l ’ s p e r f o r m a n c e f

e l l b e l o w a c c e p t ab le standards, but that such pe rformance was pre judicial to t he petitioner. Id. Fa ilure to satisfy either prong will result in the denial of re lief. Id. Acc ording ly , this Cour t n ee d n o t addre ss one of the components if the petitioner fails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct . at 2069.

Petitioner initi ally arg ues that the a naly sis in Un ite d S tat e s v . Cr on ic , 4 66 U. S. 6 48 , 1 04 S. Ct . 2 03 9, 80 L . E d. 2d65 7 ( 19 84 ), no t Strickland
, g o v e r n s h is in e f f e c ti v e a s s is tan c e o f

c o u nsel claim. That is, Petitioner contends that his counse l’s repr esentation was so defic ient that there was “an a ctual bre akdown of

the adversarial proce ss during the trial of [his] case ,” and pr ejudice is thus presumed. Id ., 466 U.S. at 657-58, 104 S. Ct. at 2046. I n Cro nic , the Supreme Court he ld that-8-

[t ]he right to the e ffe ctive assistanc e of c ounsel is thus the right to re quire the prosec utor’s ca se to survive the c rucible of meaning ful adve rsarial testing. When a true adversa

rial criminal trial has been conducte d – even if defe nse counse l may have made demonstrable errors – the kind of testing envisioned by the Six th Amendment has occ urre d. But if the pr ocess loses its cha rac ter a s a conf

ront at i o n betwee n adver saries, the constitutional gua rante e is violated.

Id ., at 656-657. The Cro nic Cou rt a c kn ow le dg e d th a t the re are so me “ c ir c ums ta nc e s th a t are so lik e ly to p re jud ic e the a c c us e d th at th e co st o f l iti g a tin g the ir e ff e c t in a pa rt ic ula r c a se is unjustified.” Id . at 65 8. Mo st no ta bly , p re jud ic e ma y

be pr e su me d w he n a n a c c us e d is c omp le te ly denied a cce ss to an attorney or whe n the ac cused’ s attorney is prevente d from assist ing the acc used “during a critical stag e of the proce eding .” Id . at 659 n.25.

The Supreme Court later c larified that “[w] hen we spoke in Cro nic of the possibilityof presuming prejudice based on a n attorney ’s fa ilure to test the prosec utor’s c as e, we indicated that the attorney ’s failure m ust be complete .” Bell v. Cone , 535 U.S. 685, 686-87, 122 S. Ct. 1843, 1851, 15 2 L . E d. 2d91 4 ( 20 02 ); se e als o B e ll v . Q uin te ro , ___ U.S. ___, 125 S. Ct . 2240, 161 L . Ed. 2d 50 6 ( 20 05 ); W

all ac e v . S tat e , 121 S.W .3d 652 (Tenn. 2003) . Where a petitioner’s c omplaints are based on spe cific err ors that ar e spora dic in nature , rathe r than c omplete, then counse l’s perf ormanc e is subject to Strickland ’s t wo-prong test based on pe rformance and pre judice. Cone , 122 S. Ct . at 18 51 -5 2; W

allace , 121 S.W .3d at 660.

I n the instant case
, P et i t i o n er does not contend that his counsel did not mount a defense
, interview w itnesses, or cr oss-examine the State’s witnesses. The g ist of his a rg ument instead is that counsel did not do some of these activities well. B eca use Petitioner has failed t o demonstrate that his counsel’s fa ilure was complete, we will a naly ze Petiti oner’ s claims under the Strickland test for “ac tual prejudice .” Se e Qu int e ro , 125 S. Ct . at 2241-2242; Cro nic , 4 66 U. S. at 65 9 n .2 6, 20 39 S. Ct. at 2047 n.26.

III. Failure t o Investigate

Petitioner contends that counse l’s assistance was de ficient be cause he fa iled to interview Dr

. Hi ne s o r M s. Da vis , a ndhe thu s w a s u na wa re that th e vic tim

ha d a his tory of

urina ry tr a c t in fe c tio ns , that she complaine d of re ctal blee ding w hen she w as admitted to the hospital, and that Dr . Hines had expressed doubts as to the victim’s explanation of the cause of her i njuries. Petitioner arg ues that if counsel ha d done a mor e thoroug h investigation of the victim’s medica l history , he mig ht have be e n a ble to l a un c h a

mor e e ff

e c tiv e de fe ns e . F or

e x amp le, Pe tit ion e r c on te nd s “ that th is inf orma tio n w ou ld h a ve a llo we d tria l c ou ns e l to arg ue that th e inj urie s w e re a lso c on sis te nt w ith oth e r e xpla natio ns

. . . su c h a s that the vic tim pe rs on a lly sc ratc he d he r va g ina l are a to try to a lle viate the itching and burning cause d by a urina ry trac t infection.”

We beg in this analy sis by noting that “ [s] trateg ic choice s made a fter thor oug h investigation of law a nd fact s re l ev ant t o plausible options are virtua lly unchalleng eable ; and strateg ic choice s-9-

ma de a ft e r l e ss tha n co mp let e inv e sti g a tio n a re re a so na

ble pr e c ise ly

to the e xten t th a t r e a so na ble pr of e ssi on a l judg me nts su pp ort the lim itatio ns on inv e sti g a tio n. I n othe r wo rd s, c ou ns e l has a du ty to make re asonable investigations o r t o m ak e a rea sonable de cision that makes particular investigations unnecessa

ry .” Strickland , 466 U.S. at 690-91, 104 S. Ct. at 2066.

Counsel te stified that he revie wed Dr. Hines’ medical report c oncerning his ex amination of the victim after

she wa s admitted to the hospital. The report wa s co n s i stent with Ms. DiS cenza’ s fi nd ing s a ndthe vic tim ’s a lle g a tio ns . Co un se l sai d tha t D r. Hi ne s’ re po rt a lso no te d th a t th e vic tim alleg ed that De fenda nt had sexuallyabused he r in the past, and c ounsel felt that Dr. Hines’ potential testimonyat trial would have been de trimental to Pet i t i oner’ s defe nse. Counsel said that he wa s “p l ea s antl y

surprised” that the State did not call Dr. H ines as a w itness during its case- in-chief

. Counsel sa id that it would not ha ve bee n benef icial to bring to the jury ’s attention that the victim had appar ently

also complained of

rec tal bleeding on Marc h 30, 1999.

At the post-conviction hea ring , Dr. Hine s said that it was his opinion that the lacer ation on the victim’s vag ina was not self -inflicted, nor

was it caused by t h e i n s er t i o n of the c atheter . Dr. Hines ag ree d that the victim was prone to urinary trac t infections, but he could not re collect if she ha d e ve r ble d a s a re su lt of a n inf e c tio n. Dr

. Hi ne s said that th e vic tim ’s pr of us e ble e din g a t th e tim e she wa s admitted to the hospital w as not c onsistent with any of her medications or the insertion of

a catheter.

I n light of D r. Hines’ testimonyat the post-conviction hearing, we fail to see how Petitioner was pre judiced by

counsel’s de cision not to call Dr. Hines a s a witness. Dr. Hine s adama ntly denied that the victim’s injuries wer e self- inflicted, which is the only theory o f defe nse sug g ested by Pe tit io n e r. No r h a s Pe tit ion e r d e mon str a te d th a t he wa s p re jud ic e d b y

c ou ns e l’ s f

a ilu re to i nv e sti g a te the victim’s co m p l ai n t o f rectal blee ding w hen she w as admitted to the hospital. During her deposition, the victim testified that “he put that thing in my mouth two times,” and “he tried to put that thing in my tail hole .” Counsel’s decision to not pursue the victim’s complaint on Marc h 30, 19 99 , o f r e c ta l bl e e din g wa s r e a so na ble in l ig ht o f the fa c ts a nd c ir c ums ta nc e s of the c a se a t th e tim e
c o u n s e l w a s d e v e l o p i n g h i s tr i a l s tr a t e g y.

Pe tit ion e r c on te nd s th a t c ou ns e l’ s a ssistan c e wa s in e ff e c tiv e be c a us e he faile d to c a ll M s. Mc Carthy , M s. B ranc h a ndMs. Ma lon e a s w itn e sse s. Pe tit ion e r a lso arg ue s th a t c ou ns e l sh ou ld have disc overe d that Kammie Glen, an em p l o y ee o f t he nursing home, said that she did not see anything unusua l happen during her shift, and that another male nurse was wor king on the victim’s floor that nig ht. Petiti oner c ontends that Ms. Davis would have testified t hat Dr. Hines expressed do ub ts a bo ut the vic tim ’s e xpla natio n f or he r i nju ri e s.

Petitioner’s counsel sa id that Petiti oner did not include Ms

. M cC arthy and Ms. B ranc h on the witness list he g ave to c ounsel. Counsel said he intervie wed Ms. Malone . Ms. Malone had not

seen a ny thing oc cur in the vic t i m ’s ro om on March 30, 1999, and adama ntly considere d the masturbation theory

“pre p o s t er ous.” Counsel said he attempted to interview the nur sing home ’s dir e c tor , b ut w a s u ns uc c e ssf ul.-10-

When a petitioner c ontends that his trial counsel f ailed to discover , interview or prese nt wi tne sse s in su pp ort of

his de fe ns e , the se wi tne sse s sh ou ld be pr e se nte d b y the pe tit ion e r at th e po stconviction evidentiary

hearing. Bl ac k

v . S tat e , 7 94 S.W. 2d75 2, 75 7 (T e nn

. Cr im. Ap p. 19 90 ). Th is is ge nera lly

the only way to show that the failure to identify or interview witnesses resulted in the denial of e vidence which pre judiced the pe titioner. S e e id

. None of these potential witnesse s te sti fi e d at t

h ep os t- c on vic tio n h e ari ng . In a dd iti on , Pe tit ion e r c on c e de s th a t ne ith e r M s. B ranc h, Ms. Mc Carthy

no r M s. Ma lon e kn e w a ny inf orma tio n a

bo ut the inc ide nt g ivi ng ri se to the c ha rg e s. Ms. Malone’s vie w that Petitioner’s theory of def ense w as “p re posterous” w ould certainly have be en de tr ime nta l. P e tit ion e r h a s faile d to de mon str a te that he wa s p re jud ic e d b y

c ou ns e l’ s f

a ilu re to c a ll the se pe op le a s w itn e sse s a t tria l.

Petitioner also sug g ests that counsel c ould have discove red w hether the victim had lodg ed sim ila r c omp la int s a g a ins t othe r m a le e mpl oy ees or wh e the r s he wa s p ro ne “ to c re a te dr a ma tic stories.” Petitioner also a rg ues that there wer e other employ ees at the nursing home on Mar ch 30, 1999, who did not notice anything unusual occur in the victim’s r oom. Petitioner did not offer any proof at the evidentiary

hearing that the vi ctim had made other c omplaints prior to the incident, nor did he offe r the testimony of any of the other

em p l o y ee s at t he nursing home at the e videntiary hearing. We c onclude that the evidenc e does not pre ponderate ag ainst the trial court’s finding that Petitioner failed to show that his counse l’s assistance in this reg ard w as ineff ective.

Petitioner relied on the victim’s description of a nonexist ent dog at the nursing home during her de position i n her c ivil li tigation as evidenc e of the vi ctim’s senility

. Petitioner contends that the vic tim ’s te sti mon y

du ri ng he r d e po sit ion in he r c ivi l c a se “ dif fe rs so me wh a t f

ro m th e sto ry

sh e tol d du ri ng the c ri min a l tria l” a ndthu s c ou ld h a ve be e n u se d f or imp e a c hme nt p ur

po se s.

I n h e r d e po sit ion , th e vic tim graphi c a lly

de sc ri be d n ume ro us inc ide nts of se xua l a bu se alleg edl y e n g a g e d in b y Pe ti ti o n e r o th e r th a n th e in c id e n t g iv in g r is e to th e c h ar g e s

. Counsel testified at the post-c onv i ct i o n h ea ring that he did not believe that Petiti oner’ s defe nse would be be ne fi tte d b y

bring ing the se a lle g a tio ns to the a tte nti onof the jury thr ou g h th e vic tim ’s c ro ssexamination. On appeal, this Court may not second-g uess the tac tical or strateg ic choice s of counse l unless those choice s are based upon inadequate preparation, nor m ay we measure c ounsel’s beha vior by “20-20 hindsig ht.” Se e He lla rd , 629 S.W .2d at 9. Moreove r, in light of the victim’s testimony during her deposition, w e fa il to dis cern how Petitioner was pr ejudiced by his counsel’s dec ision not to u se the vic tim ’s prior

te sti mon y

fo r i mpe a c hme nt p ur

po se s.

Petitioner contends that counsel should have investigated further t o develop an alternative theory of def ense. Petitioner doe s not spe ci fica lly define those alternatives other than pr esenting evidenc e that the injury

was self -inflicted. " The re asonable ness of c ounsel' s act i o n s may be det erm in ed o r su bs tan ti all y in fl uen ced b y

th e def end ant 's ow n act io ns or s tat eme nt s. " S tr ic k land
, 44 6 U .S. a t 69 1, 10 4 S. Ct. a t 20 66

. Cou ns e l’ s c ho ic e of de fe ns e wa s b a se d o n Pe tit ion e r’ s w itn e ss, M s

. Bo ri ng , who testified that she ha d seen the victim masturbating w ith a hairbrush prior to the commission of the offe nse. The f act that the jury did not find Ms. Boring’ s testimonycre dible does-11-

no t r e nd e r c ou ns e l’ s d e c isi on ill -a dv ise d w he n v ie we d u nd e r the c ir c ums ta nc e s pr e se nt a t th e tim e of trial. He lla rd , 629 S.W .2d at 9-10. Petitioner is not entitled to relief on this issue.

IV . F ail ur e to Effec ti ve ly C r os s- e xa m ine th e Vi c ti m

Peti ti o n e r c o n te n d s th a t c o u n s e l’ s c o n d u c t w a s b e lo w th e s tan d ar dd e man d e d o f criminal attorney s when he failed to vig orously cross-e x amine the victim. Petitioner arg ues t h at co u n s el should have de monstrated to the jury that the victim could be led during her te stimonyand that she was g iven to “flig hts of fanc y .”

Counsel testified at the evide ntiary hearing that the victim testified from her whee lchair. The victim wa s able to answer questions pose d to he r, but he r communication wa s “t o rt uous.” Nonethele ss, counsel attempted during c ross-examination to show that the victim h ad sufficie nt manual dexterity

to masturbate. He asked he r what a ctivities she enjoy ed, and the victim responded that her f avorite a ctivity

was re ading her B ible. Counsel said that he did n o t pursue this line of qu e sti on ing a ny fu rthe r be c a us e he fe are d it wo uldon ly

inc re a se the jury ’s sy mpathy fo r the vic tim

. Petitioner’s alleg ations conce rning counsel’s c ross-examinati o n relate to matters of tria l str a te g y or ta c tic s. “ Cou ns e l ha s so me dis c re tio n in c on du c tin g the de fe ns e a nd is e nti tle d to us e his best judgme nt in matters of trial strateg y or t actics.” Tay lor v . S tat e , 814 S.W .2d 374, 378 (Tenn. C ri m

. Ap p

. 1 9 9 1 ) ( ci t i n g McBe e v . S tat e , 655 S.W .2d 191, 193 (Tenn. Crim. App. 1983) ). The evidenc e does not pre ponderate ag ainst the trial court’s finding that Petitioner failed to prove that his counsel’s assistanc e during the victim’s cross-e x amination was inef fec tive.

CO NC LU SION

I n v ie w o f the fo re g oin g , w e a ff ir m th e jud g me nt o f t

he po st- c on vic tio n c ou rt

.

___________________________________ THOMAS T. WOODAL

L , J UDGE