Randall K. Madison v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 10, 2015

RANDALL K. MADISON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2008D4188 Mark J. Fishburn, Judge

No. M2014-01942-CCA-R3-PC – Filed December 29, 2015
_____________________________

The petitioner, Randall K. Madison, appeals the denial of his petition for post-conviction
relief. Following merger of alternative offenses, the petitioner stands convicted of twelve
counts of rape and one count of forgery. For these convictions he received an effective
sentence of thirty-five years in the Department of Correction. On appeal, he contends
that it was error to deny his petition for relief because he was denied his right to the
effective assistance of counsel. Following a thorough review of the record before us, we
affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

Elaine Heard, Nashville, Tennessee, for the Appellant, Randall K. Madison.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant District
Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background and Procedural History
 The facts underlying the petitioner‟s convictions, as recited by this court on direct
appeal, are as follows:

At trial, the victim testified that he was currently nineteen years old
and that he lived with his mother, T.D. The victim has a younger brother
and a younger sister whom his mother adopted several years earlier after
foster-parenting them. The victim explained that his father lived in Antioch
but that he had contact with his father only “now and then.”

The victim testified that he was active in his church, which he had
been attending his “whole life.” He met the [petitioner] through church
when he was in the eighth grade. The [petitioner] became a friend of the
family and acted as “a mentor to [the victim] and the other youth in the
church.” The victim started spending time with the [petitioner] outside of
church, including attending the [petitioner‟s] family functions, going to
movies, and going out to eat. When T.D. began traveling overnight for her
job, she suggested the victim spend those nights with the [petitioner]
because she did not want the victim staying at home by himself.

According to the victim, the [petitioner] lived by himself in a two
bedroom house. The first night the victim spent with the [petitioner], he
was fourteen years old and a freshman in high school. It was a Monday
night in the early fall of 2004, and they watched football together. After the
game, the victim went to bed in the second bedroom. During the night, the
victim woke up to find the [petitioner] “on top of [him] with his back facing
[him].” The victim explained that the [petitioner] was “moving,” which the
victim described as “grinding back and forth.” The victim stated that his
(the victim‟s) shorts were on, but that his “privates were out.” The victim
described their contact as “[s]kin to skin.” When asked where his
“privates” were in relation to the [petitioner‟s], the victim responded, “[i]n
his anal region.” When the [petitioner] realized the victim had awakened,
the [petitioner] left the room. The victim then got up, went to the
bathroom, and went back to sleep. The next day, the [petitioner] took the
victim to school “as if nothing happened.” They did not speak about the
incident.

The victim returned home that afternoon because his mother was
back from her trip. He did not say anything to her about what had
happened. The victim explained his silence: “Because my mother, she‟s
the type that when it comes to her children, she doesn‟t play. She will take

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a life for her children. And if I would have told her what happened, she
would have taken his life.” The victim told no one else about the incident.

The victim continued seeing the [petitioner] as before and did not
change his conduct toward the [petitioner] because he was concerned that
people would “question” a change in his behavior. Roughly a month later,
his mother went out of town again and again suggested that he spend the
night with the [petitioner]. The victim testified that he did so because he
“didn‟t have anywhere else to go.” The victim testified that, as occurred
previously, he awoke to find the [petitioner] straddling him. When the
victim asked him what he was doing, the [petitioner] did not reply but left
the bedroom. The victim stated that, during the encounter, his penis was in
the [petitioner‟s] anus. The next morning, nothing was said and the
[petitioner] took the victim to school. The victim testified that he had not
consented to this behavior on either occasion.

The victim spent five to seven additional nights with the [petitioner]
during the ninth grade (2004-2005), but nothing more occurred that school
year.

Also during his freshman year, and continuing through his
sophomore year (2005-2006), the victim frequently would meet the
[petitioner] after school at the [petitioner‟s] place of employment in
downtown Nashville. On the afternoon of May 9, 2005, while the victim
was still a freshman, the victim told the [petitioner] that he wanted to use
the [petitioner‟s] work computer to look for a summer job. Instead of
looking for a job, however, the victim used the [petitioner‟s] work
computer to visit a pornographic web site (“the Computer Incident”). The
[petitioner] later confronted him about what had happened, explaining that
his office had scanned the computer and discovered the visit to the website.
The victim acknowledged what he had done, and the victim subsequently
spoke with Dr. Pinnock, the [petitioner‟s] supervisor, about his activities.
The victim acknowledged to Dr. Pinnock that he had used the computer for
this purpose, and “signed some paperwork saying that [he] did it and that
[he] agreed that it wouldn‟t happen again.” The victim “thought that was
the end of it.” The paperwork that the victim signed was admitted into
evidence. . . .

....

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 That summer of 2005 between the victim‟s freshman and sophomore
years, the victim was engaged in volunteer activities and spending time
with his family in Mississippi, so he did not see the [petitioner]. Their
relationship resumed with the new school year, however. During a
weekend early in the new school year (the fall of 2005), the victim was
again spending the night with the [petitioner] because the victim‟s mother
was out of town. The [petitioner] brought up the Computer Incident and
told the victim that the [petitioner] “could lose his job” and also that the
victim “could go to jail for no less than seven years [because he had]
looked up pornography on a State computer.” At this time, the victim‟s
mother was in the process of trying to adopt the victim‟s younger brother
and sister. The [petitioner] pointed out to him that if he (the victim) went to
jail, he would not be available to help his mother with the children. This
disturbed the victim because he “would do anything” for his mother. He
told the [petitioner],

no, no, no, you can‟t send me to jail. You can‟t send me to
jail. I have to be here for my mother. I have to help her raise
these two kids. I‟m the oldest in the house. I really need to –
she really needs me to help her with these kids.

He testified that he “was basically begging [the petitioner] not to send [him]
to jail.”

After this conversation, the victim went to take a shower. While he
was in the shower, the [petitioner] entered the bathroom and got in the
shower with him. The victim assumed that the [petitioner] wanted sex and
also assumed that he had to acquiesce to the [petitioner‟s] wishes in order
“to be here for [his] mother and these kids.” However, all the [petitioner]
did was wash the victim‟s body.

In addition to this weekend, the victim spent most his Wednesdays
after school during his sophomore year with the [petitioner]. The victim
would arrive at the [petitioner‟s] workplace and then spend time at the
[petitioner‟s] residence before they would go to evening church activities.
“And while I was at his house pretty much every Wednesday all of my
sophomore year we would have sex every Wednesday at his house.” The
victim described this sex as him penetrating the [petitioner]. Between five
and ten times, the [petitioner] would perform oral sex on the victim first in
order to give the victim an erection. After the sexual encounters, the victim
would “go wash up and then [they] would leave and go to the church.”
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 The victim testified that he did not want to be having sex with the
[petitioner], but that every time he tried to end their sexual relationship, the
[petitioner] would threaten him in some way. The victim stated that the
[petitioner] would bring the Computer Incident “back up” and that “every
time [the victim] would pull away it was always a different threat.” The
victim said, “It was always something like letters would be sent to my
house, I would get emails saying you should do this or you need to do that.”

The sexual relationship continued into the summer following his
sophomore year. At the beginning of his junior year, the victim started a
job at Academy Sports in the Rivergate area in Davidson County. The
victim testified that he and the [petitioner] had sex in the bathroom at the
victim‟s job site “a couple of times.” Also, when asked if he and the
[petitioner] ever had sexual relations in Nashville other than at the
[petitioner‟s] house, the victim responded, “I think its happened in my
house twice.”

When the victim tried to end the sexual relationship at the beginning
of his junior year (the late summer/early fall of 2006), the [petitioner] told
him “whatever is in the dark shall come to light.” The victim became
concerned that the [petitioner] would tell people at their church that the
victim was a homosexual. The victim testified, “I didn‟t want anybody
thinking I‟m a homosexual . . . because I‟m not. And I didn‟t want
anybody looking at me differently because of this.” The [petitioner] also
claimed to have made tape recordings of voice mail messages that the
victim had left him. The [petitioner] gave him a tape, which the victim
destroyed after listening to it. The [petitioner] told him he had made
multiple copies, however, and the victim was afraid the [petitioner] would
use the tapes to convince his mother and people in the church that he was a
homosexual. At about this same time, the victim‟s mother confiscated the
victim‟s cell phone because of a bad report card. She found a voice mail
message from the [petitioner] saying that the [petitioner] “loved [the
victim] and stuff like that.” T.D. confronted the victim and told him to cut
all contact with the [petitioner]. The victim did not cut all contact,
however, and although he told the [petitioner] about his mother hearing the
voice mail, the relationship continued and moved to the victim‟s job site
and then outside of Davidson County.

In July 2007, almost a year later, the victim finally told his mother
about his relationship with the [petitioner]. They then went to the Metro
5
Police Department, taking a collection of e-mails and other correspondence
associated with the [petitioner]. The victim answered affirmatively when
asked on direct examination if “[t]he nature of those e-mails, is that the
nature of the type- kind of things he would say to you basically from the
beginning after he caught you looking at the pornography?” The victim
also explained, “if I would make him mad, he would be like you need to do
this or you need to do that or I would do this or I would do that.” The
victim also explained his acquiescence to the [petitioner‟s] demands: “I was
looking for the best thing for me and my family and I feel that I did it
because I was helping my family as well as [my younger brother and sister]
„cause I could see them going back to children‟s services . . . [a]nd so I did
that for me and my mother.” The victim also testified that he believed he
would go to jail if he ended his relationship with the [petitioner].

On cross-examination, the victim acknowledged that he stayed with
another friend of the family from church the first time his mother went out
of town. He also explained that he had received e-mails from the
[petitioner] that predated the ones he turned over to the police, but that he
had already deleted those from his inbox. He reiterated that the first sexual
incident occurred during his freshman year. He also clarified that he was
sixteen years old, about to turn seventeen, when he began working at
Academy Sports at the beginning of his junior year.

T.D. testified that she was a computer systems analyst and that her
work began taking her out of town “frequently” during the period
September 2003 through March 2004. The victim was “about 13, 14”
during this time. While she was out of town, sometimes the victim stayed
with T.D.‟s brother and other times he stayed with the [petitioner]. She did
not develop any concerns about the victim‟s relationship with the
[petitioner] for several years. She became concerned, however, when a
letter dated June 8, 2006, on State letterhead came in the mail addressed to
the victim. She read the letter and, although it purported to be from a Dr.
Pinnock, she became suspicious that it was actually from the [petitioner].
The letter, admitted at trial, refers to an “internet violation” made on the
[petitioner‟s] computer by the victim and that the [petitioner‟s] job was
thereby at risk. The letter recited that the [petitioner] had decided not to
pursue the matter against the victim, but asserts that the “division/State of
Tennessee still can feel the need to press charges if found necessary.”

T.D. called Dr. Pinnock and confirmed that Dr. Pinnock had not
written the letter. She then spoke with the [petitioner] about the letter, and
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he told her that he suspected a coworker was responsible for it because they
were upset about his high salary. She also had a conversation with the
victim about the letter, and he told her about the Computer Incident and that
he and the [petitioner] had spoken with Dr. Pinnock about it.

T.D. testified that she also received a letter addressed to her that was
signed “B” and which claimed the victim was attending clubs while visiting
his father. T.D. threw this letter out after she asked one of the victim‟s
friends, whose name started with “B,” about it and he denied having written
it. She also received a letter that purported to be from a girl that the victim
was dating. T.D. described the letter‟s contents as “crazy,” and, when the
victim disavowed any knowledge of why his girlfriend would write such
things, they threw the letter out.

T.D. testified that she became particularly concerned about her son‟s
relationship with the [petitioner] in October 2006, at the time the victim
began working for Academy Sports. She had the victim‟s cell phone and
listened to a voice mail that the [petitioner] left on it. She recalled that the
message included the words, “you felt good last night.” She spoke to the
victim about it, but he explained it away. She then called the [petitioner]
and threatened him “that he better stay away from my child or I would have
the police over there before he knew it.” The [petitioner] hung up on her
and, to her knowledge, her son had no further contact with the [petitioner].

After she discovered another phone call from the [petitioner] in July
2007, she confronted the victim and he confessed his sexual relationship
with the [petitioner]. T.D. testified that the victim told her the relationship
started when the victim has accessed the pornographic website on the
[petitioner‟s] computer at work. The victim told her that the [petitioner]
had threatened him.

....

On cross-examination, T.D. stated that, after the victim‟s father left
the family home in July 2003, the victim saw his father on average about
five or six times a year.

Dr. Theodora Pinnock testified that she was employed by the State
of Tennessee Department of Health as its Director of Maternal and Child
Health. The [petitioner] was under her supervision and was employed as an
administrative services assistant. She recalled the victim‟s visiting the
7
[petitioner] at the workplace and the [petitioner‟s] introducing the victim to
her as his godson. In May 2005, the [petitioner] told her that the victim had
accessed a pornographic website on the [petitioner‟s] work computer. Dr.
Pinnock told the [petitioner] that persons other than state employees should
not be using state computers. She spoke with the victim about the incident,
and he acknowledged his actions. The victim apologized and executed a
notarized statement of his apology. Dr. Pinnock told the victim that the
incident was then “over.” The [petitioner] was not disciplined over the
incident.

According to Dr. Pinnock, the [petitioner] told her that he had
discovered the website visit himself. She was not aware of any “scan” of
the [petitioner‟s] computer. Dr. Pinnock denied writing the letter dated
June 8, 2006, purporting to be from her. She also denied having given the
[petitioner] permission to draft the letter and denied having ever given him
permission to sign her name.

Bryan Doersam, a detective with the Metro Police Department Sex
Crimes Unit, testified that he investigated the instant crimes after the victim
and the victim‟s mother came to the office in July 2007 and filed a
complaint against the [petitioner]. At that time, the [petitioner] was forty-
eight years old and the victim was seventeen. The victim provided Det.
Doersam with numerous documents including letters and e-mail
correspondence. The victim also provided voice mails from the [petitioner]
that had been left on the victim‟s phone. In furtherance of the
investigation, the victim was outfitted with a wire and then had a
conversation with the [petitioner]. The conversation was recorded and
monitored by Det. Doersam, who described the conversation as follows:

The nature of that body wire conversation was [the victim]
confronting [the petitioner] about this relationship; him not
wanting to be a part of that; [the petitioner‟s] overall theme
was him continuing the fact that this is your fault; [the
victim], I only did these things you know, because I wanted
you to be truthful with me.

He admits to calling [the victim‟s] mother at work. He
admits to having someone call his house trying to keep this
relationship going. He admits to sending letters to keep –

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 Det. Doesam was interrupted by an objection, but later testified that,
during the monitored conversation, the [petitioner] admitted that he and the
victim had sex “[a]nd that he thought all this was [the victim‟s] fault; that
the stuff with him looking at pornography at his work had kept him from
getting raises, had kept him from getting promotions, that that was all [the
victim‟s] fault.” The [petitioner] also asserted that the victim was facing
jail time.

The [petitioner] was subsequently taken into custody at his
workplace and Detective Carrigan advised the [petitioner] of his Miranda
rights. Det. Carrigan then walked the [petitioner] to the Criminal Justice
Center, which was only a couple of blocks away. On the way, Det.
Carrigan asked the [petitioner] “what he thought we were there for.” The
[petitioner] asked him “if it was about [the victim].” Det. Carrigan did not
know the victim‟s identity at that time, so he replied, “tell me about [the
victim]. According to Det. Carrigan, “a[t] that point, [the petitioner] started
discussing his relationship with [the victim] and admitted to a sexual
relationship with him.” Det. Carrigan stated that he audio-recorded this
conversation. Once they reached the Criminal Justice Center, they
continued the interview and switched to a video recording. The video
recording was played for the jury, and a transcript was provided.

During the interview, the [petitioner] admitted that, as of the time
that [the victim] accessed pornography on his work computer, their sexual
relationship had been ongoing for about a year. He clarified that the first
time they had sex was on a Monday night during the fall of 2004 or 2005.
It was [the victim‟s] first visit to the [petitioner‟s] house. He described this
initial sexual contact as “his penis in me.” He later stated that, on this first
occasion, the victim first had anal sex with him and then he had anal sex
with the victim. Their sexual relationship continued into May of the
following year when the incident with the [petitioner‟s] work computer
occurred. The [petitioner] stated that, during this interval, he and [the
victim] had sex “about 30” times.

The [petitioner] explained that the victim came to stay at his house
when the victim‟s mother was out of town. The [petitioner] stated that
these visits occurred a couple of times a month. On a “couple” of
occasions, the victim stayed two nights on these visits.

The [petitioner] said that the victim was lying when he claimed that
the [petitioner] started their sexual relationship. According to the
9
[petitioner], the victim initiated the first sexual episode. The first episode
occurred on the [petitioner‟s] couch, not in the spare bedroom. The
[petitioner] stated that the last time he had sex with the victim at the
[petitioner‟s] house was in October 2006.

The [petitioner] stated that the last sexual contact he had with the
victim was in a hotel in Sumner County on July 7, 2007. The [petitioner]
admitted that he and the victim had been to this hotel about five or six
times, the first time being in January 2007. The [petitioner] explained that
they moved their sexual relationship to Sumner County because the
victim‟s mother had demanded that they stop speaking to each other. The
victim had begun working at Academy Sports in Rivergate and suggested
to the [petitioner] that the [petitioner] contact him at his job. The hotel was
nearby. The [petitioner] would visit the victim on the victim‟s lunch break.

The [petitioner] stated that he performed oral sex on the victim twice
over the course of their relationship. Both of these incidents occurred in
Davidson County. The victim performed oral sex on the [petitioner] three
or four times.

The [petitioner] admitted that he and the victim exchanged e-mail
correspondence. When confronted with the documents provided by the
victim, the [petitioner] acknowledged his authorship. He also admitted
having written and signed the letter purportedly from Dr. Pinnock and
acknowledged having sent a letter to the victim from a fictitious attorney,
again reminding the victim of the Computer Incident. He sent the victim
these letters in an effort to intimidate him into continuing their sexual
relationship. The [petitioner] also admitted writing letters that purported to
be from a girlfriend of the victim‟s and from a “concerned neighbor.” He
wrote these letters to get the victim in trouble with his mother in retaliation
for the victim‟s lying to him. When Det. Carrigan asked,

And then the other letters you sent on your own, and other e-
mails you sent on your own were also for that same purpose
of intimidating, threatening, coercing him to continue having
sex with you, or else I‟m coming out with all this other
stuff[,]

the [petitioner] replied, “Yes.”

10
 The [petitioner] explained that he had taped messages that the victim
had left on his voice mail and had threatened the victim with turning the
tape over to the victim‟s mother if the victim refused to continue their
relationship. He also wanted the tape to prove to the victim‟s mother that
“this wasn‟t something that was started by me.” The [petitioner] denied
that he was interested only in continuing the sexual aspect of their
relationship and averred that he had some “pretty deep feelings” for the
victim.

The [petitioner] explained that he felt the victim trying to pull away
from him after the Computer Incident. The [petitioner] also admitted to
having become jealous when he learned that the victim was spending time
with girls. The [petitioner] wanted the victim to be “faithful” to him.

....

The [petitioner] also reiterated that between November 2004 and
May 2005, he and the victim had sex about thirty times. Between May
2005 and June 2006, they had sex in the “general range” of one hundred
times. The last time they had sex at the [petitioner‟s] house was in October
2006 when the victim put his penis “in” the [petitioner]. In January 2007,
they started having sex in Sumner County, about once or twice a week
depending on the victim‟s work schedule. The [petitioner] also admitted
that he had sex with the victim once under a bridge near the victim‟s house.
This episode consisted of the victim placing his penis in the [petitioner].

In addition to giving a statement, the [petitioner] consented to a
search of his vehicle and home. In the [petitioner‟s] home, Det. Doersam
found “an application for a criminal arrest warrant that was filled out and
had the victim‟s . . . information on it.” This document, admitted at trial,
purports to be a form from the Juvenile Court of Davidson County. It
indicates May 9, 2005 as the date of the crime, and bears the purported
signatures of Shirley Hall, Deputy Clerk Notary, and Leon Ruben, Judge.
The document also indicates that the [petitioner] swore the application out
on May 30, 2007. The crime is described as “State property was used by
[the victim] to go on the internet to view several porn websites.” Also
found was a letter dated January 5, 2007, addressed to the victim stating, in
part,

[t]his tape consist[s] of some love messages you left for me
on either my home, work or cell phone. It seems that you will
11
 never tell your mother the truth so since I‟m the bad guy
listen to them closely. I know you don‟t want your mother or
friends to hear then. I have 6 more copies but the one for
your mother has all of them and then some, they are all ready
to be mailed unless you give me a call.

Also found in the [petitioner‟s] house were various items of sexual
paraphernalia.

Det. Doersam testified that he asked the [petitioner] about the
“tapes” but stated that the [petitioner] never produced such a tape to him.
On cross-examination, Det. Doersam acknowledged that they did not have
emails from 2004, 2005, or 2006, the period of time referred to in the
indictment.

The victim also provided Det. Doersam with voice mail messages
that the [petitioner] left on his phone in 2007. These messages were played
for the jury over the defense‟s objection. This Court listened to these
messages but found them largely unintelligible. Although the record
indicates that a transcript was made of these messages and provided to the
jury, the record before us does not contain such a transcript.

In addition to the [petitioner‟s] statement and voice messages, the
trial court admitted numerous documents that the [petitioner] had admitted
authoring. As set forth in more detail below, the trial court ruled that these
documents were admissible after conducting a Tennessee Rule of Evidence
404(b) hearing prior to trial. The majority of these documents consisted of
e-mail correspondence between the [petitioner] and the victim that took
place after the alleged offenses with which the [petitioner] was charged.
This e-mail correspondence from the [petitioner] to the victim includes the
following excerpts:

February 1, 2007: . . . I should be your main concern trying to
make me happy to a point so that I will not mail the tapes. . . .
[Y]ou have a decision to make by next Wednesday, you‟re
either going to love me truthfully or else I‟ll send the tape out
that Thursday. I have nothing to lose. . . . Do you really
realize who I‟ll be sending these tapes to, you‟ll never have a
girlfriend . . . , you‟ll be put out [of] your mother‟s house and
into the BIG house (jail) you don‟t realize the effect these
tapes will cause to you and others. . . . I can‟t and will not
12
continue to go back and forth with you and how you feel,
you‟re saying you love me, we have sex, you‟re kissing me
and then you feel that we should just be friends and work our
way up. . . . You have until next Wednesday to make a
decision[.]

A letter attached to the February 1 e-mail including the following:

Your mother knows I will not let it die and more
embarrassment will be on you all instead of me and especially
with these tapes. Not only will she put you out after hearing
the tape, you‟ll also go to jail. I haven‟t let anything go[,]
everything is still in place. I am hating your black ass every
second, minute and hour of the day. I‟ve never hated anyone
like this before that‟s why I need to get rid of all this hate. I
know it‟s wrong to even hate someone so that‟s why this
proposal is being made to you. You need to love me as you
have said in the pas[t] to make me feel that way again so that
I can get rid of this hate and once I do I‟ll give up the tapes
and then walk away from it all[,] but I can‟t with all this
hatred inside of me. I know you can do it because you do
whatever you want when and how you want to do it[,] and
that there‟s some fire still down inside of you that really loves
me. As I said once I feel the love for you again I‟ll walk
away from it all. That Tuesday when we had sex I was trying
to see if I could feel something then but to know [sic] avail. I
walked away sore for four days because I told you it had been
a long time and that it would hurt. When I feel your hard dick
I want to feel the sensation of really wanting to be with you
that burning desire and when you are up inside of me I want
to feel that you are search[ing] to hit that spot as you have
before[,] but now all I can fe[e]l is hatred for you. . . . Let me
say this your black ass is living on a time bomb and I don‟t
give a damn about you . . . in the pas[t] yes, but now it‟s
really different and you need to understand that, I‟m not
playing around. . . . Not only am I going to send the tape to
your mother but a copy to DCS as well now you know what
that will do for your mother‟s household. So you‟ll be put out
and going to jail and your mother will be investigated with
those two children because I have a nice letter to go in with
the tape. . . . [T]here‟s not going to be a girlfriend at all in
13
your life if this is not solved. I will send a copy of these tapes
to every girl I think you‟re interested in or that might be
interested in you. . . . I use[d] to just sizzle with smiles when
I think of the time I was taking you to Jack in the [B]ox when
your dick was stiff and hard and then we went to the house
and had sex, the time when your mother went to the Tom
Joyner show early in the morning when you bucked me on the
big chair and made the both of us cum at the same time you
were ever so gentle, the time when you had me sitting on your
lap and when you finally hit that spot you had we [sic]
screaming . . . the time when we made love and afterwards
you held me in your arms and we sleep through the night, the
time when you bucked me in my living room in the wing back
chair, the time at the hotel when you began to undress me and
you were able to get two that night within an hour and the
times when you would get two or three when we would go to
my house for an hour before time for you to go to the church.
. . . [Y]ou‟re the only one that can make this change so it‟s
best you contact me tonight or your life will become a living
hell beginning on Monday there will be three tapes that will
go out on Monday[,] and I‟m sure you can guess which ones
they are now your mother will have to sign for hers at work or
whoever is at the reception area.

March 21, 2007: . . . You lied to me about your break on
Sunday which isn‟t the first time you lied about you[r] break.
. . . I had Attorney Burt to call your manager about your
break on Sunday and why you lie so I just don‟t know. You
know you can lose your job but you w[o]n[‟]t have to worry
about that long. . . . I can‟t continue trying to stop what
should have been done at first and that is send your ass to jail
and mail those tapes. . . . I hope you realize that you lying to
me wasn‟t hurting me at all it was only putting yourself in
danger of being put out and going to jail. . . . Oh by the way
I‟m up here this morning to meet with Attorney Burt at 7:30
so it‟s almost that time. BYE.

April 2, 2007: . . . If you really wanted to take me to the hotel
that is what would have happen[ed], your interest has to be in
taking me to the hotel also but not think about [your prom
date] when we‟re together. Your interest is really not in me
14
it‟s about making sure that those tapes aren‟t mailed and you
going to jail . . . Now we had better be together at the hotel
Wednesday and Saturday making hot passionate love or you
will not have to worry about the prom at all.

April 5, 2007: . . . I must say that I am somewhat happy today
after last night. You really put it on me in a good way it was
amazing how you were able to hit it to the left and right with
me riding you. Even though I had to take it out a couple of
times due to the hurting but you put it back in. Now that was
making love and not just having sex. . . . I was thinking about
how we would go to the house before taking you to the
learning center and I would push you against the way and
start taking off your clothes now these were some good days.
You were good at making us both cum when you’re on top
and playing in my ear with your tongue.

March 21, 2007: . . . [Y]our time is running out. . . . I‟ve said
to you I will not be played, taken advantage of, will not put
up with this as long as I have in the pas[t] and I will not lose
this time around[,] I am holding to that and once the time
table has come and you have not made things happen then I
will walk and things will beg[i]n to happen, the tape to your
mother and Attorney Burt‟s action.

May 20, 2007: . . . I am moving on with my life without you
in it. I deserve some true happiness in my life without . . . a
bunch of games of lies and deceit. I can truly say that I tried
and did put my best foot forward with you and did all that I
could for and with you. Now I must move on because I can‟t
continue to try and protect you any longer[.] [Y]ou must pay
for the crime you committed. . . . I‟m going downtown this
morning to put the next step of my plan into action. You
haven‟t taken me serious at all in any of this but I can have
the item mailed to your work address. . . .

June 17, 2007: . . . I don‟t care if we don‟t see each other
again before July 2[.] [A]ll I know is if those 3 conditions are
not me[]t I‟ll see you in court. . . . You don‟t think I‟m going
to go through with it but I can show you better than I can tell
you especially after all you‟ve done to me and how you‟ve
15
 treated me. I mean nothing to you except just a get over.
We‟ll see in the end.

June 18, 2007: . . . What I want to feel is that I‟M IN LOVE
WITH YOU AND YOU‟RE IN LOVE WITH ME that‟s all I
want. I want to be happy like I was last Wednesday and you
said it can happen.

June 20, 2007: . . . You show me everyday when we‟re apart
that I‟m not important in your life when with the situation at
hand of you going to jail. . . . I‟ve accepted the fact that you
got me into this and I deal with it but throughout all this time
we‟re only together for an hour 2, 3 and sometimes 4 times
out of the week but can never be together outside and then
how you lie and deceive me but want me to continue to be
that good old crazy man and dismiss the application for
warrant.

July 17, 2007: . . . Now I did call you yesterday but no more
after I left work so now I take it you have told your mother
that I‟ve been calling you and God knows what else. I know
you haven‟t told her the truth and it‟s a good thing I did save
that message you left yesterday morning and now I can add it
to the tape I have since you have destroyed yours. You
talking all about religion and godly things what you did
yesterday was not godly and at your mother‟s house, your
lying is not godly so it‟s about whatever will benefit you but
trust me it‟s all going to catch up with you and remember
you‟ll be t[ur]ning 18 in October you‟ll be an adult.

(Emphases added). In addition to these (and other) e-mails, the [State]
admitted documents include[ing] a hand-written letter dated July 17, 2007,
that the [petitioner] acknowledged having written and sent to the victim‟s
mother. It is signed with a female name and requests T.D. to “have [the
victim] stop calling me” and accuses the victim of calling her “ugly names”
and asking her to come to his house for sex. Also admitted was a
typewritten letter dated July 18, 2007, addressed to the victim‟s mother and
from “Concerned Neighbors.” This letter claims that the authoring wife
and her husband were walking in the neighborhood and saw the victim and
his girlfriend “caring [sic] on in the front window ceil [sic] of your home.”
The author expressed concern that “that type of caring [sic] on should be in
16
 the privacy of one‟s home and not in public view.” The [petitioner]
admitted that he wrote this letter in an attempt to get the victim in trouble.
Detective Carrigan also testified at the trial as the State‟s final witness. He
clarified that it was not crime to look at pornography on a state computer.

State v. Randall Madison, No. W2010-00059-CCA-R3-CD, 2012 WL 1589045, at *2-12
(Tenn. Crim. App. May 4, 2012) (footnotes omitted).

Based upon these facts, the petitioner was convicted of twenty-two counts of rape,
three counts of aggravated statutory rape, and one count of forgery. The trial court
merged the alternatively charged offenses, and convictions were entered against the
petitioner for twelve counts of rape and one count of forgery. He was sentenced to an
effective term of thirty-five years in the Department of Correction.

Thereafter, the petitioner filed a direct appeal with this court. On appeal, the
petitioner challenged: (1) the trial court‟s admission of uncharged bad acts pursuant to
Tennessee Rule of Evidence 404(b); (2) the State‟s election of offenses; (3) the
sufficiency of the evidence; and (4) the sentences imposed in the case. After review, this
court held that no relief from the court‟s 404(b) ruling was warranted, that the petitioner
had failed to demonstrate that the State‟s election of offenses was fatally deficient, and
that the evidence was sufficient. Additionally, this court affirmed the sentences as
imposed. Id. at *1.
Subsequent to the trial in this case, the petitioner also pled guilty to charges in
Sumner County involving the same victim. Trial counsel represented the petitioner in
that matter as well. The petitioner presented proof at the post-conviction hearing that
trial counsel had to be placed under subpoena by the court because she repeatedly missed
court dates.

Thereafter the petitioner filed a pro se petition for post-conviction relief.
Following the appointment of counsel, three amended petitions were filed. An
evidentiary hearing was subsequently held on the matter at which trial counsel and the
petitioner testified.

The petitioner testified that he retained trial counsel to represent him in both his
Davidson and Sumner County cases. He testified that he gave trial counsel a cassette
tape which included messages from the victim expressing his love for the petitioner, as
well as his contempt for his mother. The petitioner believed that trial counsel should
have used the tape to establish that the victim initiated the first sexual encounter, which
led to a mutual, long-term relationship between the two. The petitioner believed that the
tape was exculpatory evidence, as it would have negated the coercion or lack of consent
element. He also testified that trial counsel failed to retrieve email correspondence
17
between himself and the victim from his work computer. He again claimed that the
emails would have indicated the victim‟s willingness to engage in the sexual acts. While
the petitioner was in jail at the time, he testified that he did provide trial counsel with the
access code to allow her to retrieve the work emails. To his knowledge, she never
accessed the emails. The petitioner did acknowledge that emails were retrieved from his
personal computer and introduced into evidence. These emails included ones in which
the victim expressed his love for the petitioner and the joy felt for the time they spent
together.

According to the petitioner, he never wanted to go to trial in this matter. He
claimed that he was open to a plea agreement, but one was never conveyed to him by trial
counsel. The petitioner testified that, after trial, he learned that the State had made plea
offers in his case. He testified that he would have accepted the agreement which
provided for three eight-year sentences with the manner of service to be determined by
the trial court. He acknowledged that trial counsel reviewed the State‟s discovery
materials with him.

The petitioner testified that he believed that trial counsel prejudiced his case by
attempting to introduce evidence of his pending cases in Sumner County. The
questioning occurred during the cross-examination of a Metro detective, and trial counsel
asked the detective if he was involved in the petitioner‟s Sumner County case. The State
objected to the question, and the court sustained the objection, thus leaving the
questioning unanswered. Nonetheless, no curative instruction was given.

The petitioner also testified that trial counsel failed to properly prepare his case for
appeal. He alleges that she failed to include various documents in the record, which
resulted in the issues being waived on appeal.

Trial counsel also testified in the matter. She indicated that she had been
practicing law since 2006, almost exclusively in the criminal defense area. Trial counsel
stated that she did not specifically recall any discussion of a cassette tape containing
messages from the victim. She offered somewhat confusing testimony with regard to
whether she actually had discussed such a tape with the petitioner. She later testified that
she thought the State had provided a cassette tape to her in discovery, but she was not
sure. When post-conviction counsel asked where any such tape might be, trial counsel
replied that if she had had a tape, it would be with the material she turned over to post-
conviction counsel. Trial counsel did recall a discussion of emails with the petitioner.
She stated that she fully explored any information brought to her attention by the
petitioner. She concluded that, had she found the information favorable, she most
certainly would have used the evidence.

18
 Trial counsel testified that she conveyed multiple plea offers to the petitioner over
the course of the case. The final offer made by the State was at the conclusion of the first
day of trial. Although she could not recall the exact details of the offer, trial counsel did
recall that it involved eight-year sentences. She specifically testified that she relayed the
information to the petitioner, and he rejected the offer.
Trial counsel testified that she did raise the issue of the Sumner County charges
during her cross-examination of the detective. She recalled the State‟s objection being
sustained following a bench conference with the trial court. No further mention was
made of the Sumner County charges during the trial. She stated that she started the line
of questioning as a tactical matter because so much of the evidence had come in already
regarding the Sumner County events.

Trial counsel also testified that she raised and argued sentencing on appeal,
although not the issue of consecutive sentencing. She did not recall this court failing to
address the sentencing issue because of a failure to include a transcript. After reviewing
the direct appeal opinion, she felt that this court thoroughly analyzed the sentencing
issue, including review of the “proof and findings from the sentencing hearing.” She did
acknowledge, however, that the election of offenses and a double jeopardy claim were
waived on appeal due to a failure to provide a complete record. The direct appeal
opinion notes that trial counsel was given multiple opportunities to supplement the
record, but it remained incomplete for review.

After hearing the evidence presented, the post-conviction court took the matter
under advisement. Thereafter, the court entered a memorandum opinion denying relief to
the petitioner. This timely appeal was filed.

Analysis

On appeal, the petitioner contends that the post-conviction court erred in denying
relief because he was denied the effective assistance of counsel. Specifically, he
contends that trial counsel was deficient by: (1) failing to present potentially exculpatory
voicemail recordings left by the victim and potentially exculpatory emails exchanged
between the victim and the petitioner; (2) failing to convey the State‟s plea offers to the
petitioner; (3) failing to submit an adequate record on appeal causing waiver of issues;
and (4) attempting to introduce evidence of the petitioner‟s pending Sumner County
charges in a separate case. He further contends that the cumulative effect of these and
other professional errors entitled him to post-conviction relief.

In order to obtain post-conviction relief, a petitioner must prove that his or her
conviction or sentence is void or voidable because of the abridgement of a right
guaranteed by the United States Constitution or the Tennessee Constitution. T.C.A. §
19
40–30–103 (2010); Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-
conviction petitioner must prove allegations of fact by clear and convincing evidence.
T.C.A. § 40–30–110(f); Tenn.Sup.Ct.R.28, § 8(D)(1); Dellinger v. State, 279 S.W.3d
282, 293–94 (Tenn. 2009). “„Evidence is clear and convincing when there is no serious
or substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal of a court‟s decision resolving
a petition for post-conviction relief, the court‟s findings of fact “will not be disturbed
unless the evidence contained in the record preponderates against them.” Frazier v.
State, 303 S.W.3d 674, 679 (Tenn. 2010).

A criminal defendant has a right to “reasonably effective” assistance of counsel
under both the Sixth Amendment to the United States Constitution and Article I, section
9, of the Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999). The
right to effective assistance of counsel is inherent in these provisions. Strickland v.
Washington, 466 U.S. 668, 685–86 (1984); Dellinger, 279 S.W.3d at 293. To prove
ineffective assistance of counsel, a petitioner must prove both deficient performance and
prejudice to the defense. Strickland, 466 U.S. at 687–88. Failure to satisfy either prong
results in the denial of relief. Id. at 697.

For deficient performance, the petitioner must show that “counsel‟s representation
fell below an objective standard of reasonableness” under prevailing professional norms,
despite a “strong presumption that counsel‟s conduct falls within the wide range of
reasonable professional assistance.” Id. at 688–89. “In other words, the services
rendered or the advice given must have been below „the range of competence demanded
of attorneys in criminal cases.‟” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn.1975)). The petitioner must prove that counsel made errors
so serious that counsel was not functioning as “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. When reviewing trial counsel‟s performance
for deficiency, this court has held that a “petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision made during the course of the
proceedings.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.Crim.App.1994). The
reviewing court “must make every effort to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel‟s conduct, and to evaluate the conduct from
the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689). However, “deference to tactical choices only
applies if the choices are informed ones based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn.Crim.App.1992).

20
 “[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel‟s judgments.”
Burns, 6 S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). “[W]hen a defendant has
given counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel‟s failure to pursue those investigations may not later be challenged
as unreasonable.” Strickland, 466 U.S. at 691. “Counsel must conduct appropriate
investigations, both factual and legal, to determine what matters of defense can be
developed.” Baxter, 523 S.W.2d at 932–33.

Prejudice in turn requires proof of “a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. The
court clarified that prejudice “requires showing that counsel‟s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “The
defendant must show that there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.

A claim of ineffective assistance of counsel raises a mixed question of law and
fact. Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court
reviews the trial court‟s factual findings de novo with a presumption of correctness,
unless the evidence preponderates against the trial court‟s factual findings. Grindstaff,
297 S.W.3d at 216. But the trial court‟s conclusions of law on the claim are reviewed
under a purely de novo standard with no presumption of correctness. Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001).

In its written memorandum opinion denying the petitioner relief, the post-
conviction court made the following findings:

[The petitioner] claims that [trial counsel] . . . was deficient in all
three (3) phases of her representation i.e. pretrial, trial, and appeal. Pretrial
he claims that [trial counsel] failed to adequately prepare for trial by not
obtaining the emails from his work computer and not conveying settlement
offers. Trial deficiencies include her failure to introduce his work computer
emails and the tape recordings of the victim. He also claims [trial counsel]
prejudiced his defense by putting before the jury his pending Sumner
21
County case. On appeal, [the petitioner] claims [trial counsel] failed to
preserve for appellate review the sentence imposed. The court will address
each in this order.

Pretrial Deficiencies

Counsel has a duty to conduct a reasonable, independent pretrial
investigation of the case in preparation for trial. State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999). In this case, the Petitioner has failed to establish by
clear and convincing evidence either of the pretrial claims he raises. First,
the Petitioner has not established that any recordings even existed beyond
the ones that were referenced at trial. The Petitioner was in jail so it is
unlikely that he personally provided the alleged recording to [trial counsel].
The record shows that Detective Carrigan was unable to retrieve any such
tapes either from the Petitioner or from a search of the home. . . . If they
did exist, then Petitioner has the burden to produce the evidence at the
hearing for the court to be able to assess whether failure to present it at trial
constitutes deficient performance. Failure to do so requires the claim to be
denied since the court cannot speculate as to its contents. Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Moreover, assuming the
tape existed and its contents were as represented, then the claim fails under
the prejudice prong because this same type [of] evidence was introduced
before the jury through the emails exchanged between Petitioner and the
victim. The court‟s analysis applies equally and fully to retrieve the emails
off the work computer. The issue is without merit.

The right to effective assistance of counsel applies equally to the
plea negotiation process. Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012).
Obviously this constitutional mandate contemplates that any offer tendered
to counsel by the prosecution be conveyed to the client. The court accredits
[trial counsel] communicated whatever offer(s) may have been made.
[Trial counsel] is an experienced criminal defense lawyer. The
constitutional mandates aside, [trial counsel] certainly is familiar with her
ethical responsibilities to the client. . . . This was a case where the State‟s
evidence was substantial. Therefore it would behoove [trial counsel] to
convey any settle[ment] offer made accompanied by her advice to accept
any reasonable offer that realistically reduced Petitioner‟s exposure since
there was little chance of prevailing at trial. She had little, if anything, to
gain by forcing a case to trial when there was little likelihood of acquittal.
For these reasons the court accredits the testimony of [trial counsel]. This
issue is without merit.
22
 Trial Deficiencies

[The petitioner] claims that [trial counsel] prejudiced his case by
attempting to present evidence to the jury of similar charges that had been
brought against him . . . in Sumner County. There is no dispute that this, in
fact, happened. Regardless of whether [trial counsel] did this for tactical
reasons or it was a mistake, the court finds the claim to be without merit.
First, this information was already fairly raised in the evidence at trial via
the Petitioner‟s confession. . . . Second, the answer to the question raising
the Sumner County charges was never answered. There is nothing to
suggest this unanswered question in any manner prejudiced Petitioner. If
anything, the State‟s success in keeping the answer out would suggest that
it would have been unfavorable to the State.

Appellate Deficiencies

Appellate counsel is subject to post-conviction scrutiny for deficient
performance under the Strickland two (2)-prong standard, the same as trial
counsel. In this case, Petitioner complains that [trial counsel] failed to
preserve for appeal the issue of the sentence imposed by the trial court.
However, a review of the record indicates this matter was fully litigated at
trial and argued on the merits on appeal. . . . It is noted in the appellate
decision that [trial counsel] had failed to include in the record the
presentence report, the victim impact statements and the exhibits from the
sentencing hearing. Likewise, this court does not have the benefit of those
records. Once again, this court is not in a position to speculate as to what
these documents contain and how the absence of these documents might
have affected Petitioner‟s sentence. This issue is without merit.

For the reasons set forth herein, the Petition for Post-Conviction
Relief is respectfully denied and dismissed.

As noted, the petitioner has basically raised those same issues on appeal as he did
in the post-conviction court. As did the post-conviction court, we review each in turn.

Failure to Present Cassette Tape and Work Emails

The petitioner contends that trial counsel was ineffective by failing to present
potentially exculpatory evidence in the form of a cassette tape containing voicemails left
by the victim which indicated his consent to the sexual relationship. The petitioner points
23
to trial counsel‟s confusing testimony regarding the tape, especially noting that she stated
that she “probably” did talk to the petitioner about the tape, although she could not
specifically recall receiving such a tape. He asserts that, during her testimony, trial
counsel was “evasive and argumentative when” asked whether she received such a tape.
He specifically relies upon the following testimony from trial counsel to support his
argument:

[Post-Conviction Counsel]: And did [the petitioner] speak with you about a
cassette tape?
[Trial Counsel]: Probably.
[Post-Conviction Counsel]: Okay, if he had given you a cassette tape with
the victim making statements favorable to him, would you have kept it.
[Trial Counsel]: Yes.
[Post-Conviction Counsel]: And so if that cassette tape is nowhere to be
found in the file that you gave me, would that mean that you lost it?
[Trial Counsel]: Wait a minute, cassette tapes, I think I was given cassette
tapes by the State.
[Post-Conviction Counsel]: If there were no cassette tapes of any kind in
the file that you gave me, would that mean that you lost it?
[Trial Counsel]: No.
[Post-Conviction Counsel]: Okay.
[Trial Counsel]: It means that if you didn‟t get it, then I didn‟t have it.
[Post-Conviction Counsel]: Okay so you received no cassette tapes either
from the State or from . . . [the petitioner].
[Trial Counsel]: I don‟t - - I know - - I don‟t think he gave me any cassette
tapes, I think the State gave me cassette tapes or they gave me a tape, I
don‟t know if it was a cassette tape or not.
[Post-Conviction Counsel]: Okay, so if there were no cassette tapes in your
file, would that mean you no longer have them and did not hold onto them?
[Trial Counsel]: You got everything I had.
[Post-Conviction Counsel]: Okay, if the State had given you a cassette
tape, would you still have it?
[Trial Counsel]: If they gave me - - no, I think you would have it, if they
gave me one.
[Post-Conviction Counsel]: If I do not have it in my files that you gave me,
and one of the parties had given you a cassette tape, would that mean either
you have it somewhere else and you did not turn over, possibly, or that you
have lost it?
[Trial Counsel]: I gave you everything I have.
[Post-Conviction Counsel]: Okay, so you do not have it then?
[Trial Counsel]: I don‟t have anything.
24
The petitioner contends that this testimony, at best, is slightly suspect because of the
conflicts within the testimony. He claims that, at worst, the testimony indicates that trial
counsel was not being forthcoming about producing the tapes for post-conviction
counsel.

Similarly, the petitioner asserts that trial counsel was ineffective for failing to
review and utilize potentially exculpatory emails that were exchanged with the victim on
the petitioner‟s work computer. He claims that he was continuously incarcerated during
the pendency of the case and that he was not able to examine the emails himself. He
testified that, despite trial counsel‟s testimony that she discussed the emails with him, he
had no knowledge that she ever obtained or reviewed the work emails whatsoever.

As noted above, the post-conviction court held this issue to be without merit
because the petitioner failed to produce either the cassette tape or the emails at the post-
conviction hearing. The petitioner contends that he should not be penalized for failing to
present the tapes or emails because it was trial counsel‟s actions that prevented his doing
so.

We agree with the post-conviction court. Pursuant to Black v. State, a petitioner
bears the burden to produce any evidence at the post-conviction hearing for the court to
be able to assess whether failure to present it at trial constitutes ineffective assistance of
counsel. 794 S.W.2d 752,757 (Tenn. Crim. App. 1990). Failure to do so requires that the
claim be denied since the court may not speculate as to the contents of the missing
evidence.

The petitioner has not established the existence of either the tape or the work
emails in his claim. While trial counsel‟s testimony was less than clear, she did
definitively say at one point that she did not recall the petitioner giving her any cassette
tapes. It was not contained in her work product which was shared with post-conviction
counsel. Despite the petitioner‟s contentions that multiple copies were kept to send to
other people, police were unable to locate any such tape in their search of the petitioner‟s
home. With regard to the emails, there was a statement made by trial counsel, albeit not
clear, that she did not recall the petitioner discussing work emails with her. Based on the
ruling, it appears that the post-conviction court made a determination in favor of trial
counsel‟s credibility. This court will not reassess such determinations. State v. Mitchell,
810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

Moreover, we also agree with the post-conviction court that, had the petitioner
been able to establish the existence of such evidence, his claim still would not satisfy the
prejudice prong. While everyone was in agreement that the evidence in question
25
appeared to show that the victim was willingly involved in the relationship, we note that
consent is never a defense to the charge of statutory rape. State v. McKnight, 900 S.W.2d
36, 48 (Tenn. Crim. App. 1994), overruled on other grounds by State v. Collier, 411
S.W.3d 886 (Tenn. 2013). In light of all the evidence against the petitioner, including his
own confession, we cannot conclude that such evidence would have changed the outcome
of the trial.

Conveyance of Settlement Offers

Next, the petitioner contends that he was denied the effective assistance of counsel
because trial counsel failed to convey a plea offer from the State, which he claims he
would have accepted. He acknowledges that trial counsel testified to the contrary, stating
that she did convey the offer, and the petitioner rejected it. He further acknowledges that
the post-conviction court denied relief based upon a credibility determination in favor of
trial counsel. However, he contends that determination was error “because there was no
corroborating evidence such as a letter or recall of time and place that the offer was
actually conveyed.”

As noted above, it is not the province of this court to re-evaluate credibility
determinations made by the trier of fact. Mirchell, 810 S.W.2d at 735. Questions
concerning the credibility of witnesses and the weight and value of their testimony are the
province of trial judges. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The trial
court is much better placed to make such determinations in light of the fact that the court
is in a position to both hear the testimony and observe the witness when the testimony is
presented.

The petitioner‟s argument that we should re-evaluate a credibility determination
because there is no evidence to support it is misplaced. As noted by the post-conviction
court, this was a complicated case with substantial evidence against the petitioner. It
would not in any way have benefitted trial counsel to fail to convey a settlement offer.
The petitioner has put forth no evidence which preponderates against the findings of the
post-conviction court.

Failure to Prepare an Adequate Appellate Record

Next, the petitioner contends that trial counsel was deficient for failing to present
an adequate record for review on direct appeal, which resulted in issues being waived.
Specifically, he contends that she failed to include a transcript of the jury charge or the
closing arguments, which precluded this court from addressing the election of offenses
and double jeopardy issues on appeal. He also alleges that trial counsel failed to produce
an adequate appellate record regarding the sentencing aspect of the appeal, noting that
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trial counsel failed to include the sentencing hearing exhibits, the pre-sentence report, and
the victim‟s statement. Although acknowledging that the court did address his sentence,
the petitioner contends that the failure to include the above mentioned items rendered this
court‟s review of the issue incomplete on direct appeal.

As an initial matter, we point out that there is no dispute that trial counsel did in
fact fail to include certain documents in the record. The direct appeal opinion
specifically notes that the record remained incomplete after trial counsel was afforded
multiple chances to supplement the record. Randall Kelvin Madison, 2012 WL 1589045,
at *24 n.12, 28 n.13. This court did in fact waive review of the issues of double jeopardy
and election of offenses. Id. at *20, 24. The opinion does indicate that the length of the
petitioner‟s sentence was thoroughly reviewed. Id. at *28-32.

Turning to review of the post-conviction court‟s determination, we must point out
that the petitioner failed to challenge the completeness of the appellate record with regard
to the double jeopardy or election of offenses in his original or amended petitions for
post-conviction relief. The only reference made to trial counsel‟s performance on appeal
is contained in the third amended post-conviction petition and states: “[Trial Counsel]
failed to request a transcript of Petitioner‟s sentencing hearing to be prepared and as a
result the Court of Criminal Appeals did not review the issue of his sentence. Her failure
caused this issue to be waived.” The post-conviction transcript does indicate that the
petitioner asked some questions regarding the double jeopardy and election of offense
issues at the post-conviction hearing, but the post-conviction court made no rulings on the
issue.

Because the issue was not before the post-conviction court and no ruling was
rendered, we are precluded from review. Issues not raised in the post-conviction petition
cannot be raised for the first time on appeal. Jimmy Earl Lofton v. State, No. 02C01-
9603-CR-00073 (Tenn. Crim. App. Mar. 7, 1997); see also Cauthern v. State, 145
S.W.3d 571, 599 (Tenn. Crim. App. 2004) (an issue raised for the first time on appeal is
waived). A post-conviction petition “must necessarily rest upon and be determined by
the factual allegations it contains.” Lang v. State, 510 S.W.2d 83, 85 (Tenn. Crim. App.
1974), As such, the petitioner has waived review of this issue.

Additionally, even had the issue been raised, the petitioner would still not be
entitled to relief. In order to establish ineffective assistance of counsel involving
appellate issues, a petitioner is required to establish that, had the issues been properly
raised and addressed, relief would have been warranted. Carpenter v. State, 126 S.W.3d
879, 887-88 (Tenn. 2004) (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.
1993)). Absent such a finding, the petitioner will be unable to establish prejudice.

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 In this case, the petitioner has not established that he would have been successful
on appeal had the documents been included. In fact, we cannot review the issue to make
such a determination because the petitioner failed to include any of the items which he
claimed were omitted from the appellate record on direct appeal. Additionally, no legal
authority is cited to support his claim that the issues are meritorious. By failing to
include the documents in this record, the petitioner has essentially waived the issue. See
Black, 794 S.W.2d at 757.

The petitioner‟s assertion with regard to his sentencing issue is likewise waived
for the same reason. While it is clear that trial counsel did not include certain evidence in
the record with regard to sentencing, the petitioner likewise failed to introduce it at the
post-conviction hearing. Thus, he cannot establish that he was prejudiced by trial
counsel‟s failure to include the evidence on direct appeal. Id. Without the documents, he
cannot establish that the court would have imposed a different sentence had the
documents been before this court on direct appeal.

Moreover, as found by the post-conviction court, the record indicates that the
matter of sentencing was fully litigated at trial and argued on appeal. Despite the lack of
certain pieces of evidence, this court thoroughly analyzed the sentences imposed by the
trial court. Nothing in this record preponderates against that finding.

Introduction of Sumner County Charges

As his final contention, the petitioner contends that trial counsel‟s
above-described errors combined with “other prejudicial errors and omissions, including
her uncooperativeness and evasiveness in the litigation of this petition, render[s] her
representation . . . ineffective.” His argument, however, centers around the fact that trial
counsel “intentionally and inexplicably referenced his pending similar charges . . . in
Sumner County during the trial of this matter.” He notes that trial counsel “finally
admitted that the trial court . . . had to intercede to „protect the interests‟ of the petitioner”
at trial. He claims it was not a strategic decision on trial counsel‟s part despite her
testimony that she initiated the line of questioning because the State had “already brought
up everything that happened in Gallatin.” The petitioner characterizes trial counsel‟s
actions as feeling “the need to draw yet more attention to the fact that the [petitioner] had
outstanding similar charges in another jurisdiction.” The petitioner also encourages this
court to note that the record in this case demonstrates trial counsel‟s “incompetence
and/or disinterest in the case.” He directs the court‟s attention to the fact that the trial
court in the Sumner County case issued a subpoena for her presence because she missed
court dates and ignored messages from the court. He contended this is “not indicative of
zealous representations or forthright professional behavior.”

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 In support of his argument, the petitioner has included a copy of the transcript
from that portion of the trial. It reads as follows:

Q. Detective - -
A. Yes, ma‟am.
Q. Are you the one that contacted the Sumner Police Department in
Gallatin?
A. Actually it was Hendersonville.
Q. What - - Hendersonville?
A. Yes, ma‟am.
Q. Did you go and testify before the grand jury there that resulted in his
--
General . . . : Judge, may we approach?
The Court: Okay
(Bench conference outside the hearing of the jury).
General . . . : (Inaudible) inquire as to (inaudible) specifically what
he‟s charged with and (inaudible).
The Court: (Inaudible.)
[Trial Counsel]: We have practically tried the whole Gallatin case
here, every e-mail, everything - -
The Court: That‟s not accurate. Give me a break. Do you want to
bring this up? Do you want to ask (inaudible)?
[Trial Counsel]: Your Honor, every incident that occurred and every
e-mail - -
The Court: Does anyone know on this jury that there‟s any other
charges in any other county?
[Trial Counsel]: Well, Your Honor - -
The Court: Did they?
[Trial Counsel]: I don‟t know
The Court: Are you serious?
[Trial Counsel]: You asked me. I don‟t know what they know.
The Court: Did anybody mention anything about charges in another
county? (inaudible).
[Trial Counsel]: Your Honor - -
The Court: Have they? Have they?
[Trial counsel]: - - the trial has not been going on that long.
The Court: So can you remember whether anybody said anything
about any charges (inaudible)?
[Trial Counsel]: Your Honor, I‟m just saying - -
The Court: Have they?
[Trial Counsel]: I - -
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 The Court: Have they?
[Trial Counsel]: - - don‟t think so.
The Court: Then do you want to?
[Trial Counsel]: To put this in perspective - -
The Court: Do you want to?
[Trial Counsel]: Your Honor - -
The Court: Why are you wanting to ask him questions?
[Trial Counsel]: Because, Your Honor, they have brought in
everything that happened in Gallatin.
The Court: It‟s not in Gallatin.
[Trial Counsel]: I don‟t want the jury to be confused and think that
the Gallatin charges are these charges and try the Gallatin case here.
The Court: So you want to bring it up?
[Trial Counsel]: I want them to know he‟s been charged in Gallatin.
The Court: I‟m going to protect your client‟s interest and sustain the
objection.

As noted by the post-conviction court, there is no dispute that trial counsel did in
fact attempt to put evidence of the other charges before the jury. Nonetheless, the court
noted that whether “for tactical reasons or . . . a mistake,” the issue was without merit
because the evidence of the Sumner County charges was fairly raised in the evidence via
the petitioner‟s confession and because the question asked by trial counsel was never
answered. The court thus concluded that no prejudice resulted to the petitioner. We
agree.

As the post-conviction court found, it is not necessary to our review to determine
whether trial counsel was deficient in attempting to elicit information about the Sumner
County pending charges. Trial counsel indicated that it was a strategic decision to make
sure that the jury did not confuse the two cases “and try the Gallatin case here” because
of the extensive proof which was presented regarding the separate charges. While
normally it would not be good practice to elicit such information, we need not make such
a determination in this case. See Strickland, 466 U.S. at 697.

The petitioner has simply failed to establish that he was prejudiced by trial
counsel‟s question to the detective. Even had the detective actually answered the
question before the State‟s objection, the jury was already aware of the conduct by the
petitioner which occurred in Sumner County. Because the question was never answered,
moreover, the jury never actually knew that charges were pending based upon that
behavior. The petitioner‟s confession itself detailed the incidents, and the victim‟s
testimony confirmed the accounts. In light of this and the overwhelming evidence of the

30
petitioner‟s guilt, we cannot conclude that the petitioner was prejudiced by trial counsel‟s
attempt to question the detective in this manner.

As an aside, the petitioner asks us to consider trial counsel‟s poor performance in
the Sumner County case, including the fact that she had to be placed under subpoena to
appear in court. However, that is not relevant to our determination of prejudice in this
case. That is a separate case that was resolved after this case.

Based upon the findings above, the petitioner‟s assertions with regard to
cumulative error entitle him to no relief. We affirm the judgment of the post-conviction
court.

CONCLUSION

Based upon the foregoing, the denial of post-conviction relief is affirmed.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

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