### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2003 LEE ROY GASS v. S TATE OF TENNES SEE Direct Appeal from the Criminal Court for Ham blen County No. 02CR058 James E. Beckner, Judge

No. E2 002-0 2146- CCA-R3 -PC October 10, 2003 The petitioner appeals from the post-conviction court’s denial of his petition for post-conviction relief. He claims he received ineffective assistance of counsel at trial. After ca reful review, we affirm the post-conviction court’s denial of relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which D AVI D G. H AYES and T HOM AS T. W OODA LL , JJ., joined. Dougla s L. Pa

yne , Green

ville, Te nnessee , for the

appella nt, Lee Roy

Gass. Paul G. Summers, Attorney Gene ral and Reporter; Kathy

D. Aslinger, Assistant

Attorney Genera l; C. Berkeley

Bell, Jr., District Attorney Gene ral; and James Goodwin, Assistant Attorney Genera l, for the appellee, State of Tennessee. OPINION The petitione

r, Lee Roy

Gass, se eks post- convicti on relief from hisconvictions and effective 27-year sentence for agg ravated rape, burglar

y, and offic ial misconduct. His March 8, 200 0 convictions were affirmed by this Court on direct appea l. See State v. Lee

Roy Gass , No. E2000- 00810-CCA-R3-CD, 2001 T enn . Crim. App. LEXI S 498 (Tenn. Crim. App. July 3, 2001, at Knoxville).
T he pet itioner alleged a number of deficie ncies on behalf of his trial counsel that the petitioner claimed w ere insta

nces of ineffective coun sel. The f ollo wi ng are the specific lapses of counsel claimed by the

petitioner: a. failure to communicate the State’s plea offer ; b. failur e to procure testimony

of the doctor who pe

rformed rape kit tests; c. fa il ur e t o d ev el op wi tn es se s t o a tt ac k t he vi ct im ’s cr ed ib il it y; d. failur e to acqu ire aff idavit on e

xculpator y w itness;-2-

e. fa il ur e t o a ss oc ia te wi th an ex pe ri en ce d a tt or ne y; f. failur e to object to evide

nce of no n-linked

saliva on victim’s b

reasts; g. failure to obtain services of a private investigator; h. misleading the petitioner by continuous assurances of a “winnable case ;” and i. Failure to discover and present rec antation proof through the victim’s cellmate. The petitioner’s trial counsel was the initial witness at the post-conviction hearing. Counsel had begun his practice of law on November 1, 1999. The petitioner’s trial was conducted on March 8, 2000. Counsel had defended one other client in a criminal jury case. As a part of

his preparation, counse l sought advice from two more experienced attorne ys concer ning evidentiary

matters. The petitioner had, prior to h

is arrest, given th

ree con tradicto ry and incon sistent sta

tements a ffecting his cr ed ib il it y. This made

it problematic for

the petiti oner to te stif

y at trial and present ye

t another version. Counsel, in conjunction with the petitioner, developed a strategy to focus on and attack the victim’s credib ility. A dec ision was reached that the petitioner would not testify . Counsel had determinedthere would be no corrobo rati ng medical testimony a nd considered the phy sical evidence s light. Counsel ha

d filed pr etrial di scovery

motions an d had rec eived vol untary complia nce wit h these. Consequently, no pre trial hearings were held. A plea offer was made by

the State for a nine-year

sentence. Counsel dis cussed th e offer with the petitioner on the same day it was received. The petitioner declined to acc ept the offer. A physician had conducted an examination of the victim for evidence of rape and found no physical evidence. Counsel did not procure the doctor’s testimony as he f elt the absence of medical proof gave more focus to the

attack o n the vict

im’s cre dibility . A TBI

report w as neg ative as to the presenceof semen on the victim’s panties, panty liner, the vaginal swab, and paper towe ls at the scene. The report’s results were elicited from De tective Kilgore. The petit ioner’s counsel d

id not object to the test

imony of this off

icer co ncernin g saliva

of unknown origin

on the vic tim’s bre ast. After the trial , counsel i nt erviewed Robin Long, a former cellmate of the victim at the Hamblen County

Jail. Counsel obtaine d an unswo rn statem ent from L

ong whic h indicat ed th e victim had consensual sex with the petitioner and was not raped. At the motion for new tria l, this was not accepted

as qualifying

as newl y discove red evi dence a nd was charact erize d by the tr ial j udge as merely cumulativ e to other

impeach ing evid ence. Ms . Long

was not subpoenae d nor did she testify at the new tria

l motion. Counsel testified as to his unsuccessful efforts to investigate a possible alleg ation of sexual assault made by the victim ag ainst a doctor at Lakeshore Mental Health Center. On cros s examination, couns el stat ed he met with the petitioner on numerous occasions, and they went together two or three times to locate and interview witnesses in prepara tion f or th e trial. Counsel shared all the information he had gathered with the petitioner. The y discussed the consequences of a felony c onviction on the petitioner’s constable status.-3-

Amy Gass, daughter of the pet itioner, related that trial counsel had mentioned the plea barga in to her. She later questioned the petitioner, and he said he was unaware of a plea offe r. On cr os s- ex am in at io n, sh e s ai d t he pe ti ti on er di d n ot di sc us s a ll de ta il s o f t he ca se wi th th e f am il y. RobinLong, the victim’s former cellmate, was the next to testify. On direct testimony she stated that the victim had said the sex was consensual with the petitioner and that she claimed rape only because thepetitione

r would not give he

r $30. On c

ross-exa mination, M s. Long said th e victim had given se

ven diff erent “ stories.”

On some oc casions, the victim describ ed it

as rape and

at other times denied it

was rap e. Ms. L

ong did n ot speak wit h the petitioner’s counsel until after the petitioner’s conviction. Norma Deery was an inmate at the Hamblen County Jail with the victim after the petitioner’s trial. The victim told Deery that she had known the petitioner before the rape incident and there had been sexual contact but the petitioner had not raped her. The petitioner testified that he was not informed by his counsel of a plea offer. He did meet with counsel a few times and once they went together to interview trial witnesses. The petitioner, basedon his understanding and the word of his counsel, was optimistic for a good result at trial. On cross-examination, the petiti oner adm itted that he had lie d in at lea st

one of his stat

ements given to the investigating officers. The petitioner insisted he was no

t informe d of a ple a offer

by h is counsel. The trial judge issued a memor andum opinion de nying post- convicti on relief. The po stconviction judge’ s find ings of fact on post-conviction hearings are c onclusive on appeal unless the evidence preponderates otherwise. State v. Burns , 6 S. W.3d 453, 4 61 (Te nn. 19 99). T hose f indi ngs of fact are afforded

the weight of

a jury ver

dict, and this Court is bound by the findings unless the evidence in the record preponderates ag ainst those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1 997); Alley

v. State , 958 S.W.2d 1 38, 147 (Tenn. Crim. App. 1997 ). This Court may not reweigh or reevaluate the evidence, nor substitute its infere n ces for tho se draw n bythe postconviction court. State v. H oneycutt , 54 S.W.3d 762, 766 (Tenn. 2001) . Howeve r, the pos tconviction court’s conclusi ons of la w ar e r ev ie we d u nd er a p ur el y de novo standard with no presumption of correctness. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975) , and Strickland v. Washington , 466 U.S. 6 68, 104 S. Ct. 2052, 80 L. Ed . 2d 674 (1984). The petitioner has the burden to prove that (1) the a ttorney’s performance

was deficient, and

(2) the deficient performance r esulted in prejudice to the defendant so as to deprive him of a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Goadv. State , 938 S.W.2d 363, 3 69 (Tenn . 1996); Butler v . State , 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or prejudice justifies denial of relief; theref ore, the court ne ed not add

ress the components in any par ticular order or even address both if one is insufficient. Goad , 938 S.W.2d at 370. I n order t o establis h prejudi ce, the p etitioner must estab lisha “rea sonable p robabilit y that, but for counsel’s unprofessional errors, the result of the pr oceeding would have been different. A-4-

reasona ble probabil

i ty is a p robability sufficient to undermine c onfidence in the outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. The test in Te

nnessee to determine whether counsel provided effective assistance is whether his or her performance was within the ra nge of competence demande d of attorne ys in crimina

l cases. Baxter , 523 S.W.2d a

t 936. The

petitione r must overcome the presumption that counsel’s conduct falls within the wide range of acce ptable professional assistance. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065 ; State v. H oneycutt , 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove a deficiency , a petitioner must show “that counsel’s acts or omissions were so serious as to fall below an objective standar

d of rea sonableness under prevailing professional norms.” Goad , 938 S.W.2d at 369 (citi ng Strickland , 466 U.S. at 688, 104 S. Ct. at 2065)

. In reviewing counsel’s conduct, a “fair assessment . . . requiresthat eve ry effort b e made to eliminate the distorting effects of hindsight, t o reconstruct the circumstances of counsel’s c hallenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002) (citing Strickland , 466 U.S. a t 689, 104 S. Ct. at 2065 ). The fact that a particular strategy

or tactic failed or hurt the defense does not, standing al o ne, esta

blish unreaso nable

repres entation . Howeve

r, defe rence t o matters of strategy

and tactical choices applies only if the choices are informed ones based upon adequate prepara tion. Henley

v. State , 960 S.W.2d 572, 579 ( Tenn. 199 7); Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).

Analysis The petitioner insisted he was not informed by his counsel of a plea offer made by the State. This is in direct c ontr adiction to the counsel’s testimony and wa s found not credible by the trial judge. The petitioner’s testimony at the post-c onviction hearing was evasive and did not prepond erate a gainst t he trial j udge’ s finding s. The decision to refrain fr om c alling a s a witnes s the doct or who pe

rformed the rape kit examination was in the trial judge’s words a “rea sonable strategy in r etrospe ct as well as [in] . . . foresight.” The results of the test were negative, and c ounsel believed the absence of the testimony highl igh ted the credibi lity issue, the

ir centr al strate gy . We agr

ee with th e trial c ourt and f

ind this allega tion is witho

ut merit. The petitione

r compla ins of cou

nsel’s fa ilure to de

velop witn

esses to a ttack the victim’ s cr ed ib il it y. In fact, two witnesses wer e produced and were able, to a degree, to cas t doubt on the victim’ s credibility. I

n addition, counsel was successful in creating cr edibility doubts on cros s examination of the victim. Further impeachment witnesses would have been cumulative. The trial judge explained that the complaint of thepetitioner concerning counsel’s failure to associa te an experienced attorney was misplaced. Trial counsel was court-appointed, and the matter was a non -capita

l case. H owever , counsel did avai l himself o f the advice of tw o other la wy ers.-5-

The trial judge explained that, had counsel sought funds for an investigator or expert, they would probably ha

ve been prov ided. However, the trial judge observe d, “There’s no suggestion today as to what any e

xpert could have done that was not done. ” The pe titioner h as faile d to show prejudice. Trial counsel f

reely admitted t

hat he thought, pr

ior to tria l, that the petitioner

had a “w innable case.” The petitioner now claims he was misled by counsel’s assura nces. The po st-co nvict ion j udge determinedthat the petitioner was aware of the plea barga in offer and chos e not to acc ept those terms or make a counter-offer. The petitioner has not shown his will was overbor ne by counsel’s attitude. The petitioner complai ns of the St ate ente ring ev idence o f saliva o n the vict im’s brea sts withoutobjection of his counsel. The saliva was not linked to the petitioner by the tests performed, and the presence of saliva was admissible evidence . Objection by couns el would have been a fruitless exercise. We next consider the petitioner’s allegations concerning the fa ilure to preserve

and present RobinLong’s testimony

as newly discove

red evidence. Counsel had interviewed

Long, the victim’s cellmate, after

trial and prepared a statement signed by Long and witnessed, but it was not a swor n affida vit. Nevertheless, its contents were considered by the trial judge at the new trial motion. The statement essentially claimed

that the victim told Long that the petitioner had not rape d her, that the victim ha d o ff er ed th e p et it io ne r s ex fo r m on ey, and implied that the victim wa s willing

to lie as a witness. This statement included the fact that Long had not spoken to the petitioner or his counsel until March 30, 2000, subsequent to the trial. T he petitioner now claims that, but for counsel’s negligenc e in failing to d iscover an d produce this witne ss at tria l, the outco me would h ave bee n differ ent. This issue

has been previous ly considered

and determined. See

Tenn. Code Ann. § 40-30-206(f). The petitioner cited as error the trial court’s deni al of the new trial motion based on the newly discove red evidence on the direct appeal. State v. L

ee Roy Gass , No. E2000-00810-CCA-R3-CD, 2001Tenn. Crim. App. LEXI S 498 (Tenn. Crim. App. July

3, 2001, at Knoxville). In addressing this issue and, specif ically, L ong’s proposed testimony, this Court observed: Moreover, even ass uming the exercise of reasonable diligence by

the appellant and de fense counsel and acknowledging the ma teriality of the propose d testimony, w e cannot conclude that the testimony would “pro bab ly” r esu lt in an a cqu it tal . In reaching our conclusion, we note that the appellant’s own lack of cred ibility undoubte dly

played a c

rucial role in the jury’s resolution of this case in favor of the Stateand further no te the questionable credibility of the source of the proposed testimony . This issue

is without me

rit. Id. at 44. The trial judge ma de his fin dings of

fact wit h the bene fit of hav ing obse rved the witnesse s’ demeanor and testimony both at trial and at the post-c onviction hearing. The record bef ore us supports these findings and does not pr

eponder ate ag ainst them . Therefore, w e are bo und to accept the factual findings. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In this case, the jury was-6-

givenample reason, if it chose, to reject the testimony of the victim. As noted by the trial judg e, the petitioner’s own contradictory words were apparently

a large factor in the jury ’s verdict. We have ca

refully reviewed each

issue raised in this post-conviction appeal and concluded that the post-conviction judge’s findings of fact a re not outweighed by

a prep onderance of the evidence in the record. Therefore, we conclude the petitioner

has failed to

prove the ineffe ctivene ss of counsel, and we affirm the post-conviction court’s de nial of relief.

__ ______________

____________________

_ JOHN EVERETT WILL

IAMS, JUDGE