Joseph Anthony Saitta, Jr. v. State of Tennessee

IN THE C()URT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 8, 2017

JOSEPH ANTHONY SAITTA, JR. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Warren County

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No. F-13783 Larry B. Stanley, Jr., Judge 1 ' ,_,j .
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No. M2017-00081-CCA-R3-PC \

Cleii< of the Cou.
The petitioner, Joseph Anthony Saitta, Jr., appeals the denial of post-conviction relief
from his Warren County Circuit Court conviction for rape of a child. The petitioner
alleges he received ineffective assistance of counsel and that the cumulative effect of trial
counsel’s errors resulted in the denial of a fair trial. Discerning no error, we affirm the
judgment of the post-conviction court.

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

J. ROSS DYER, J., delivered the opinion of the court, in Which ROBERT W. WEDEMEYER
and D. KELLY THoMAs, JR., JJ., joined.

Susan N. Marttala, Assistant Public Defender, McMinnville, Tennessee, for the
petitioner, Joseph Anthony Saitta, Jr..

Herbert H. Slatery III, Attorney General and Reporter; Alexander Collins Vey, Assistant
Attorney General; Lisa S. Zavogiannis, District Attorney General; and Tom Miner,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
F acts and Procedural History
A Warren County Circuit Court jury found the petitioner guilty of rape of a child,
and the trial court subsequently imposed a sentence of fifty-eight years in confinement to

be served at 100%. On direct appeal, this Court confirmed the petitioner’s conviction,
and our Supreme Court denied his application for permission to appeal State v. Joseph

Anthony Saitta, Jr., No. M2013-01947-CCA-R3-CD, 2014 WL 4384319 (Tenn. Crim.
App. Sept. 5, 2014), perm. app. denied (Jan. 15, 2015). This Court previously recited the
following underlying facts:

ln July 2012, the Warren County Grand Jury indicted the [petitioner]
for rape of a child. The alleged victim was his daughter, who was born on
June 30, 2009.

At trial, Sethly Hodges testified that she became a licensed practical
nurse in November 2010, began working for CareAll Home Health in April
2011, and was assigned to care for the victim from April to November
2011. The victim, who was two years old in November 2011, was
Hodges’s only patient. The victim suffered from cerebral palsy, brain
damage, scoliosis, and breathing problems; had a feeding tube and
tracheostomy; and could not speak. Hodges did not think the victim had
clear vision, but the victim could hear. Hodges said that she and another
nurse “split” the victim’s care, each working twelve-hour shifts, and that
she cared for the victim thirty-six to forty-six hours per week. The nurses
looked after the victim in her home and “did everything” for her, including
changing her diaper, sometimes washing her laundry, bathing her, flushing
her feeding tube, and giving her breathing treatments Usually, one of the
victim’s parents was present. Hodges said she never had to leave the victim
alone with the victim’s parents because another nurse always came in at the
end of Hodges’s shift and “relieved” her.

Hodges testified that at some point, the victim’s family lost use of
both of its vehicles. The nurses tried to help the family by driving the
[petitioner] to work, and Hodges even let the family use her car to run
errands. The victim’s mother also had a five- or six-year-old son, but he
did not live with the family. In November 2011, the victim’s mother was
scheduled to have visitation with her son for Thanksgiving. The victim’s
mother did not have transportation, so Hodges drove her to pick up the boy
on Tuesday, November 22, 2011. The trip lasted about four hours. While
Hodges and the victim’s mother were gone, the victim was at home alone
with the [petitioner]. Hodges said she was not worried about leaving the
victim with the [petitioner] because the victim’s mother was not concerned
about it. Also, the victim had been left alone with the [petitioner]
previously, and the [petitioner] knew how to take care of her. Before
Hodges and the victim’s mother left for the trip, Hodges checked the
victim’s diaper and flushed her “trach.” The diaper did not need to be
changed.

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Hodges testified that while they were on the trip, the victim’s mother
received a text from the [petitioner], stating that the victim had had “a
really big, hard bowel movement and he didn’t think the nurses were giving
her enough water that he was going to give her water.” Hodges stated that
she had never experienced the victim “being what l would call constipated.
There maybe [had] been a day or two that she didn’t have a bowel
movement but that doesn’t necessarily mean that she was constipated.”
Hodges said that the victim sometimes received Miralax or Benefiber in her
feeding tube and that the victim’s mother “would kind of switch her back
and forth, Benefiber and Miralax and there was discussion that she may
have been constipated but as far as when I was there I never saw any -
nothing concerned me as far as constipation.” Hodges had never seen
blood in the victim’s stool.

Hodges testified that when she and the victim’s mother returned
home about 4:30 p.m., she went into the victim’s bedroom and immediately
smelled the strong odor of a bowel movement The [petitioner] was lying
on the floor in the room but got up and went into the living room, and
Hodges began changing the victim’s diaper. She said that when she opened
it, she noticed blood and “a little bit of discoloration as far as like a little bit
of brown but it’s not what l would call a bowel movement.” Hodges said
that she had been expecting a bowel movement in the diaper but that
“[t]here was what appeared to be like BM, maybe almost looked like a little
bit of diarrhea maybe. . . . [A]nd then there is like slimy stuff. It’s all kind
of mixed together.” Upon seeing the blood, Hodges called for the victim’s
mother. When the victim’s mother came into the room, she inspected the
victim’s rectum, and they saw that the victim’s rectum had been “ripped.”
Hodges said that the rip was not “front to back” but that it was “a good size
rip” and “shocking.” Hodges wiped the victim’s vagina with a baby wipe
but saw no blood. When she wiped the victim’s rectum, blood was on the
wipe. She stated,

I’m not going to say that it was oozing out but again,
whenever she pulled her bottom apart you could see blood up
inside of there kind of with the bodily fluids, there was tissue.
l didn’t just sit there and stare at it because it was very gut
wrenching.

Hodges testified that the victim’s mother’s face “got red,” that both of them
were shaking, and that the victim’s mother began yelling at the [petitioner].

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The victim’s mother went to speak with him, and Hodges could hear them
“bickering back and forth.” The victim’s mother wanted to know about the
blood and “how did your daughter’s bottom get like this.” The [petitioner]
said he did not know.

Hodges testified that she was panicked, scared, and “thinking the
worst.” She stated, “I couldn’t even, like as a nurse, looking back, I should
have looked further at [the victim] but I have a two year old daughter and
seeing that Was very traumatic.” Hodges wanted to telephone her
supervisor but was afraid the [petitioner] would hear her and was afraid of
what the [petitioner] might do. Therefore, she texted her supervisor about
the situation. When her supervisor did not respond, Hodges texted Tracy
Martin, the nurse who was supposed to relieve her from her shift. Martin
responded that if the victim’s condition was as bad as Hodges said, then she
needed to take the victim to the hospital. Hodges talked with the victim’s
mother about taking the victim to the hospital, and the [petitioner] stated
that if they did so “they’re going to think [he] did it.”

Hodges testified that she noticed the trash can by the victim’s bed
had been emptied and that she told the victim’s mother that the diaper the
[petitioner] had changed was not there. The victim’s mother left the room
and returned with the diaper. Hodges said the victim’s mother also had
paper towels with blood “all over them.” They opened the diaper but saw
no blood in it. Hodges said that “mushy” stool was in the diaper but that
the amount of stool “wasn’t huge” and that she saw nothing concerning
about the stool. She said the bloody paper towels were “kind of pink in
some places . . . slimy, if you will” and appeared to have bodily fluid on
them. The State asked Hodges if she recognized the fluid, and she said that
she thought it was semen. She said the nurses never used paper towels to
clean the victim after a bowel movement They always used baby wipes.

Hodges testified that she and the victim’s mother decided to take the
victim to the emergency room (ER) but did not let the [petitioner] know
what they were doing. They put the diaper that Hodges had taken off the
victim, the diaper that the [petitioner] had changed, and the bloody paper
towels into a bag and put the bag in Hodges’s purse. On the way to the
hospital, Hodges and the victim’s mother agreed to say the victim’s
condition occurred when Hodges “ran [the victim’s mother] down to the
Dollar General.” Hodges said that when they arrived at the ER and spoke
with the triage nurse, the victim’s mother “was a completely different
person” and told the nurse that the victim “had been dealing with some

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constipation problems and that there was a little blood in her feces.”
Hodges said that the victim’s mother’s statement was “[a]bsolutely not”
consistent with what Hodges had seen but that Hodges did not say anything
to the triage nurse. She said that the victim’s mother “didn’t let me do a
whole lot of talking” but that “I did try to stress the severity of the rip.”
The victim’s mother did not tell the nurse about the bloody paper towels or
the blood in the diaper that the [petitioner] had changed

Hodges testified that her shift ended at 7:00 p.m. and that Martin
arrived at the hospital to relieve her. Hodges spoke with Martin in the
parking lot, “tried to stress to her the severity of the tears,” and gave her the
bag that contained the diapers and paper towels. Hodges said that when she
got home, she telephoned the hospital, spoke with the nurse caring for the
victim, and told the nurse that she thought “they should investigate further
because [she] thought there was a little more going on that [the victim’s]
mother hadn’t made them aware of.” Hodges also began having second
thoughts about lying to her supervisor regarding the amount of time she had
been away from the victim that day. Hodges had told her supervisor that
she and the victim’s mother had gone to the store. Hodges said she did not
tell her supervisor about the four-hour trip because she was afraid of losing
her job and her nursing license. However, she decided “to come clean . . .
for [the victim’s] sake.” The next morning, she went to CareAll and told
her supervisor about the trip, and CareAll fired her. Hodges went to the
sheriffs department and spoke with Investigator Kelly Carter.

On cross-examination, Hodges acknowledged that a laxative or fiber
supplement was a routine part of the victim’s care and that the victim had to
have them. She also acknowledged that the victim’s physician had
prescribed Miralax or Benefiber to the victim and had switched the victim
from one to the other. At the time of this incident, the physician had
switched the victim back to Benefiber. The [petitioner] had very little to do
with the victim. In fact, neither of the victim’s parents had much to do with
her care because the nurses always took care of her. During the four-hour
trip, Hodges and the victim’s mother stopped at the home of Hodges’s
boyfriend in Smithfield to get money for gas. When they returned to the
victim’s mother’s home after the trip, Hodges saw blood in the victim’s
diaper. Defense counsel asked Hodges about the amount of blood, and she
stated, “I mean it wasn’t just like covered in blood but there was spots of
blood, smears of blood.”

Hodges acknowledged that as part of her duties, she made notes
about the victim throughout her shifts. On November 22, 2011, Hodges
made her notes after she left the ER. Defense counsel showed Hodges her
notes, and she acknowledged that she wrote that blood “‘appear[ed]”’ to be
in the victim’s diaper. She said she was sure she saw blood. She
acknowledged that a child could have a large bowel movement with blood
in the stool. She described the tear to the victim’s rectum as large and
“straight up and down” but said, “I looked away from it to be completely
honest because it startled me.” The paper towels were not saturated with
blood, but “there was a lot of smeared blood on them.” The blood appeared
to be mixed with semen but Hodges could not say for sure whether the fluid
was semen or some other bodily fluid. Defense counsel asked why she
thought the fluid was semen, and she stated, “I guess because she was torn
and that’s the first thing that entered my mind.” She acknowledged that
although she was scared for the victim on November 22, she did not show
the diapers or paper towels to the hospital staff. She said that she regretted
that decision every day and that she and the victim’s mother thought the
[petitioner] had done something to the victim. Hodges acknowledged that
the ER physician diagnosed the victim with constipation. Hodges said she
thought the hospital staff “didn’t check her out thoroughly because they
weren’t led in the right direction to check her out thoroughly.” She
acknowledged that she did not know the [petitioner] harmed the victim.

On redirect examination, Hodges testified that what she saw in the
diaper did not match the [petitioner’s] description in his text message. She
acknowledged that, given the physician’s diagnosis of constipation, she
could have decided not to reveal anything to her CareAll supervisor.
However, she stated,

As a human being l felt like - and also 1 have a daughter that
is the same age and seeing [the victim] the way that I saw her
in the condition that she’s in it was horrifying and l truly felt
like I had to go further with it for [the victim’s] sake. Yes, I
didn’t feel that he went far enough as investigating what was
wrong with her.

Tracy Martin testified that she became a licensed practical nurse in
June 2005 and was involved in the victim’s care through CareAll from June
or July 2011 until November 22, 2011. The victim could not communicate,
sit, or roll over but responded to loud noises. When the victim was in pain,
she was fidgety, moved her arms, and sometimes produced tears from her

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eyes. Martin spent at least thirty-six hours per week with the victim,
usually working twelve-hour shifts, and her care of the victim included
respiratory treatments, rotating splints on the victim’s hands and feet,
exercising, bathing, and administering medications. The victim’s parents
also knew how to care for the victim and changed the victim’s trach tube,
which the nurses were not authorized to do. The victim’s mother was very
active in her care and instructed the nurses. The [petitioner] changed the
victim’s trach when it needed to be changed, but Martin did not see him
often and did not have much interaction with him. Besides Martin and
Sethly Hodges, other nurses also provided care for the victim.

Martin testified that on November 22, 2011, she was supposed to
care for the victim from 7:00 p.m. to 1200 a.m., which was a short shift.
About 5:00 p.m., Hodges texted Martin that she was scared something had
happened to the victim. Hodges later telephoned Martin and told her what
was happening Martin told Hodges to notify CareAll and take the victim
to the ER if Hodges had any question about the victim’s condition. Martin
thought CareAll told Hodges to take the victim to the ER, and Martin
reported to the ER for duty.

Martin testified that when she arrived at the hospital, the victim, the
victim’s mother, the [petitioner], and Hodges were sitting in the waiting
room. The victim’s mother asked Martin to drive the [petitioner] to work,
so Martin drove him to Calsonic. During the drive, the [petitioner] asked
Hodges if constipation could have caused the victim’s “problems.” He also
told Martin to tell the victim’s mother “that constipation causes that.”
Martin said she thought the [petitioner’s] statements were “very odd.”
When she returned to the ER, the victim and the victim’s mother were still
in the waiting room. Hodges and Martin went to get some things out of
Hodges’s car, and Hodges reported to Martin what had happened. While
Hodges and Martin were outside, the victim’s mother texted or telephoned
Martin, asked what they were doing, and told Martin that she needed to get
back inside. Martin took the victim’s car seat out of Hodges’s car, and
Hodges gave her a white plastic bag containing diapers and paper towels.
Hodges told Martin that the items in the bag were from the victim and that
Martin needed to take them. Martin saw the paper towels and described
them as “kind of pink-tinged like blood-body fluid mixture but it was
dried.” She said that the blood was smeared and that the bodily fluid
looked like semen. Martin put the plastic bag in her car and returned to the
ER. She did not open the diapers.

Martin testified that when she and the victim’s mother met with the
ER doctor, the victim’s mother told him that they were there due to
“[c]onstipation, a recent med change from Miralax to Benefiber and some
blood in [the victim’s] stool.” All Martin knew was what Hodges had told
her, but the victim’s mother’s statement to the doctor was inconsistent with
Hodges’s version. Martin said that constipation was “not a big concern” in
her care of the victim and that “1 don’t recall ever seeing her have a really
hard bowel movement.” However, Martin had seen the victim have
difficulty passing formed stool. Martin had never seen blood in the
victim’s stool or anal fissures on the victim. The victim took Miralax and
Benefiber for constipation and had been switched from one to the other.
When the switch occurred, Martin did not notice any changes in the
victim’s bowel movements

Martin testified that when the victim’s mother took off the victim’s
diaper for the ER doctor, Martin saw “a very small amount of red, I’m
assuming was blood and there was some brownish-yellowy spots on her
diaper that looked almost like liquid stool and a little bit of slime.” She
said that the doctor looked at the victim’s “bottom” as if he was changing
her diaper, “holding the legs up just kind of glancing.” He did not look
closely at the victim’s rectum. The victim also had an abdominal x-ray.
The doctor told them that the victim had a small amount of stool in her
upper intestinal tract and to continue with the victim’s fiber regimen at
home. After the victim was discharged from the hospital, Martin drove
everyone home. The victim was exhausted, and Martin got her ready for
bed. Meanwhile, the victim’s mother changed the victim’s bed linens
because “[t]here was little droplets of blood in a few places and there was
some smeared stool on the sheet and the body pillow.” The victim was
wearing only a shirt, and Martin changed her into her bed clothes. Martin
said she thought the shirt was put into the laundry basket

Martin testified that the white plastic bag containing the diapers and
paper towels had been in the backseat of her car and that “l know that [the
victim’s mother] took them out of my vehicle but l don’t know where they
went past that.” The next morning, Martin stopped by CareAll to turn in
some paperwork. Hodges was there and “kind of distraught about
everything that [had] happened.” Hodges was upset because she thought
nothing had been done about the situation and talked about going to the
sheriffs department Later that day, Martin met Hodges there, and they
spoke with Investigator Kelly Carter.

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On cross-examination, Martin testified that she did not work with the
victim after November 22 because the victim’s mother telephoned CareAll
and asked that she not return. She said that when she and Hodges went
outside at the hospital, Hodges first showed her the items in the white
plastic bag and then explained what had happened. Hodges asked for
Martin’s opinion about the bodily fluid on the paper towels, and Martin
thought the fluid was semen. Martin said she had seen semen previously
and was basing her opinion on personal and professional experience.
Hodges also thought the fluid was semen. Martin acknowledged that
Hodges was concerned the [petitioner] had perpetrated some act on the
victim. Martin said she did not reveal Hodges’s concern to the ER staff
because she did not have any first-hand knowledge “other than seeing the
paper towels.” Also, Hodges had agreed to call the ER and “give them a
report on what had happened under her watch.” Martin was present when
the ER doctor stated his findings, and Martin was concerned that the
doctor’s findings were not consistent with what had actually happened.
Nevertheless, Martin did not say anything to the doctor. The next day,
Hodges and Martin met with Investigator Carter together but wrote their
statements separately.

On redirect examination, Martin testified that she saw the victim’s
rectal area when the ER doctor raised the victim’s legs and that “you could
see a tear below her rectum maybe that size. You could see it running
down from her rectum.” Martin demonstrated the length of the tear for the
jury and acknowledged that it was about one inch. She did not examine the
victim’s rectal area when they returned home on November 22. Martin said
she changed the victim’s diaper but “didn’t go any further than rinsing her
with water because she was obviously in pain.”

lnvestigator Kelly Carter of the Warren County Sherist
Department testified that he learned about the case on November 23, 2011,
and spoke with Sethly Hodges and Tracy Martin. He acknowledged that
they gave statements to him that were consistent with their trial testimony.
Alicia Cantrell from the Department of Children’s Services (DCS) was
assigned to the case, and she and Investigator Carter went to the victim’s
home on the afternoon of November 23. The victim, the victim’s parents,
the victim’s half-brother, and a home health nurse were there. The victim’s
mother took Investigator Carter and Cantrell into the victim’s bedroom, and
they viewed the victim.

Investigator Carter testified that he had learned from Hodges and
Martin that the victim’s light blue shirt and pink shorts were in a diaper bag
hanging in the victim’s closet and that a white spot was on the clothing.
lnvestigator Carter asked the victim’s mother for permission to search the
home, and she consented. lnvestigator Carter said he found the clothes
where the nurses had said and that he saw a white spot, “like a dropping,”
on the shorts. The victim’s mother allowed him to take the clothing. That
night, Investigator Carter learned that the victim and someone from DCS
were at the hospital Investigator Carter went there and spoke with the
victim’s mother. The [petitioner] was not present. The victim’s mother
told Investigator Carter that she and the nurse had gone to the Dollar
General Store the previous day and were away from the victim about forty-
five minutes. Investigator Carter questioned the victim’s mother about the
time and then confronted her with Hodges’s claim that they had been gone
four hours. The victim’s mother admitted to the time and said that the
victim was left in the [petitioner’s] care. She told the officer that she had
lied because she did not want to get Hodges in trouble.

Investigator Carter testified that on November 28, he returned to the
victim’s home and spoke with the victim’s mother again. Investigator
Carter had learned that a dark blue body pillow cover was folded in the
bottom of the victim’s hamper in her bedroom. He asked the victim’s
mother for consent to search, and she said yes. Investigator Carter found
the pillow cover and collected it as evidence. On December 1, 2011,
lnvestigator Carter spoke with the [petitioner] at the [petitioner’s] mother’s
home. He did not give Mirana’a warnings to the [petitioner] because he had
no reason to arrest the [petitioner] and was “just basically going to talk to
him to see what he knew about the incident.” He wrote the [petitioner’s]
statement the [petitioner] reviewed it, and the [petitioner] signed it. In the
statement, the [petitioner] said the following: On November 22, 2011, the
[petitioner] stayed home with the victim and heard her “beeper monitor go
off,” so he went in her room to check on her. The victim had had a hard
bowel movement The [petitioner] did not see anything wrong, and the
bowel movement did not have blood on it The [petitioner] changed the
victim’s diaper and lay down on the floor in her room. He texted the
victim’s mother, telling her about the bowel movement and that the
victim’s “butt looked raw so I put cream on it.” About twenty minutes
before the victim’s mother came home, the [petitioner] changed another
diaper that contained “some hard and some soft poop.” He did not see
blood in the diaper, put the diaper in the trash, and took out the trash. The
[petitioner] used paper towels instead of baby wipes to wipe the victim. He

_1()_

was lying on the floor when the victim’s mother got home. The [petitioner]
told Hodges about what had happened and went to smoke. Hodges called
the victim’s mother into the victim’s bedroom, and the victim’s mother
yelled at the [petitioner], “‘[W]hat the [f"‘ * *] did you do, Joe?’ “The
[petitioner] did not tell her anything. The victim’s mother said the victim
was bleeding, so they all left for the hospital. Tracy Martin arrived at the
hospital and drove the [petitioner] to work.

Investigator Carter testified that after the [petitioner] gave his
statement, the [petitioner] asked about the victim’s clothes. Investigator
Carter told the [petitioner] that he had not yet sent the clothes to the
Tennessee Bureau of Investigation (TBI). The [petitioner] stated, “I
sometimes masturbate.” Investigator Carter asked if the [petitioner] did so
in the victim’s room, and the [petitioner] said no. The [petitioner] said that
he sometimes used his clothes to clean himself but that he did not use the
victim’s clothes. Investigator Carter wrote the [petitioner’s] masturbation
statement in his notes but did not put it in the [petitioner’s] written
statement On February 6, 2012, Investigator Carter asked the [petitioner]
to provide a DNA sample. He collected buccal swabs from the [petitioner]
and the victim and sent all of the evidence to the TBI Crime Laboratory.
Later, he learned that semen had been found on the victim’s shorts. On
April 20, 2012, Investigator Carter went to the [petitioner’s] home and
asked him for an interview at the sheriff’s department The [petitioner] did
not have a ride, so he rode to the sheriff’s department with Investigator
Carter. Although the [petitioner] was not under arrest, he received Mirana’a
warnings and spoke with Investigator Carter and Investigator Jason
Rowland. Investigator Carter said that Investigator Rowland “mainly”
questioned the [petitioner]. During the interview, which was recorded, the
[petitioner] stated that he never saw blood in the victim’s diaper and that he
wiped the victim with a paper towel because the perfumes in baby wipes
could burn the victim. Investigator Carter questioned the [petitioner] about
the semen, and the [petitioner] could not explain how the semen got onto
the victim’s shorts. Investigator Carter said the [petitioner] stated that the
semen should not have been there and that he had not masturbated that day.
On cross-examination, Investigator Carter acknowledged that after
speaking with Hodges and Martin on November 23, he was concerned
about a sexual assault He and Alicia Cantrell went to the victim’s horne to
conduct a welfare check on her. The [petitioner] answered the door, and
Cantrell told him that they needed to speak with the victim’s mother.
Cantrell told the victim’s mother that they were there for a welfare check on

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the victim. Cantrell also advised the victim’s parents that she and
Investigator Carter were there “looking into some allegations.”

Investigator Carter testified that when he returned to the home on
November 28, he had the victim’s mother sign a consent to search form.
He did not have her sign a consent to search form on November 23 when he
collected the shirt and shorts. Investigator Carter said that throughout his
investigation, the [petitioner] was “[s]omewhat” cooperative and always
maintained that he did not do anything to the victim. However, Investigator
Carter said that the statements the [petitioner] made after his written
statement on December 1 “kind of raised my suspicions a lot more on him.”
Investigator Carter acknowledged that those statements were not part of the
[petitioner]’s written statement He also acknowledged that when he asked
the [petitioner] during the April 20 interview if the [petitioner] had
masturbated on November 22, the [petitioner] may have said that he
probably did. Investigator Carter knew when he and Investigator Rowland
interviewed the [petitioner] that semen had been found on the victim’s
shorts but did not know the semen belonged to the [petitioner]. He denied
leading the [petitioner] to believe it was the [petitioner]’s semen, stating,
“lnvestigator Rowland is the one who basically asked the questions.”
Investigator Carter acknowledged that the [petitioner] continually stated
that he did not know how the semen got on the victim’s shorts.

Investigator Carter testified that at some point, DCS advised him that
two doctors from the hospital ER had examined the victim on two separate
occasions and that both had concluded the victim’s rectal tear was the result
of a hard bowel movement He also received information about the case
from the Our Kids Center and DCS reports. Investigator Carter did not
interview the doctors or anyone from Our Kids and did not review any
medical records. He denied that DCS, not the sheriff’s department,
“spearheaded” the case.

Dr. Laura Boos of the TBI Crime Laboratory’s Serology DNA Unit
testified that she received the victim’s shirt and shorts, a blue pillowcase,
and the [petitioner’s] and the victim’s buccal swabs. She tested the
clothing for semen and the pillowcase for blood and semen. Dr. Boos
found semen on the victim’s shorts and compared the DNA from the semen
to the DNA from the buccal swabs. The DNA from the semen matched
that of the [petitioner]. She said that the probability of a person unrelated
to the [petitioner] having his same DNA profile exceeded the world’s
current population of almost six billion people. In other words, “one would

_12_

not expect to find that same profile from anyone else in the world
statistically.” On cross-examination, Dr. Boos testified that she could not
determine how long the semen had been on the shorts or how it got there.

Lori Littrell, a physician’s assistant at the Our Kids Center in
Nashville, testified that she performed a forensic medical examination of
the victim on November 23, 2011. The victim was well nourished but
unresponsive during the exam, and Littrell noticed that the victim had some
limb stiffness and spastic movements throughout the exam, Littrell looked
at the victim’s vaginal and rectal areas with a colposcope, which magnified
the areas. Littrell said that the victim’s vaginal exam was normal and that
ninety-five percent of all vaginal exams conducted at the Our Kids Center
were normal due to the delay in disclosure of abuse and the fact that some
children were touched in ways that did not cause any type of physical
injury. During the victim’s rectal exam, Littrell noticed fissures, which she
described as “really small . . . superficial cuts that are fairly common in the
anal area.” The victim’s fissures initially appeared to be “pretty
insignificant.” However, when Littrell used her hands to separate the
victim’s “butt cheeks,” she saw that the victim had two anal “tears.”
Littrell said that she considered a tear to be more extensive than a fissure.
Looking at the victim’s anal area like a clock, Littrell saw a “pretty
extensive tear” at the 6:00 position. The victim also had a tear at the 11:00
position. The victim had fissures at the 3:00, 5:00, and 8200 positions.
Littrell identified photographs of the tears and fissures for the jury.

Littrell testified that fissures were common for a person with a
history of constipation. However, the victim’s tears were abnormal, and
Littrell concluded that her findings were “more excessive or extensive than
what would be expected with the passing of a large stool or constipation
and thereby raised serious concerns about the possibility of sexual abuse.”
If Littrell had been in the ER with the victim on November 22 and 23, she
would have disagreed with the ER doctors’ diagnoses. She said that sperm
on the victim’s clothing and the victim’s rectal bleeding made her even
more concerned about sexual abuse. She said that in cases of constipation,
a child would have blood in the stool or diaper at the time of the bowel
movement

On cross-examination, Littrell testified that Alicia Cantrell had
referred the victim to the Our Kids Center and acknowledged that Cantrell
had been concerned about a sexual assault Littrell also acknowledged that
the victim had been examined on two prior occasions, once on November

_13_

22 and once on November 23, and that the victim had been diagnosed with
fissures caused by constipation. Cantrell sent the victim to Our Kids
because she disagreed with those diagnoses. Littrell acknowledged that if
the two ER physicians had conducted digital examinations of the victim’s
rectum, those exams could have exacerbated the victim’s fissures. Littrell
examined the victim “after hours” on November 23 but could not remember
the exact time of the examination Littrell said that Our Kids employees
did not diagnose children with sexual abuse; instead, “[w]e give our
impressions as far as we’re concerned about the possibility.” Littrell said
she was “very concerned [about] penetrating trauma” in the victim’s case.
She said she had examined 500 to 600 children and had “never seen a
history of constipation with this type of injury.” At the conclusion of
Littrell’s testimony, the State rested its case.

The victim’s mother testified that she and the [petitioner] “were
together” four years and that the [petitioner] was the victim’s father. In
November 2011, the victim received twenty four-hour nursing care from
four nurses who worked twelve-hour shifts. On November 22, the victim’s
mother and Sethly Hodges drove to Smyrna in order to pick up the victim’s
mother’s son. The nurses were not supposed to leave the victim. However,
the victim’s mother had wrecked her car and asked Hodges to drive her to
Smyrna. The victim’s mother stated that while she and Hodges were on the
trip, the [petitioner] texted that the victim had had a large bowel movement,
that he had changed the victim’s diaper, and that he had put ointment on her
“butt.” The [petitioner] also advised the victim’s mother that she needed to
give the victim more water to make sure the victim’s stool was softer.
After the victim’s mother and Hodges left Smyrna, they went to a
pharmacy to get pills for Hodges’s boyfriend and took the pills to him.

The victim’s mother testified that the [petitioner] was asleep on the
floor when she returned home and that she had to wake him. She said she
was “chewing his butt” because he had forgotten to feed the victim. While
they were outside arguing, Hodges began changing the victim’s diaper.
Hodges yelled for the victim’s mother, and the victim’s mother went into
the victim’s bedroom. Hodges showed the victim’s mother a baby wipe
and asked if blood was on the wipe. The victim’s mother looked at the
wipe and answered, “[L]ooks like it but could be poop.” The victim’s
mother used another wipe to wipe the victim, saw a small amount of blood
on the wipe, and began arguing with the [petitioner] again. She got the
diaper that the [petitioner] had changed out of the trash, and they all went to

_14_

the hospital. The victim’s mother took the diaper to the hospital so she
could show it to the doctor.

The victim’s mother testified that when they arrived at the hospital,
she did not take the bag containing the diaper inside because she did not
want to carry a trash bag into the hospital. She told the ER staff that the
victim was bleeding, that the victim’s father had changed her diaper, and
that the diaper “had a big poop in it.” The ER doctor diagnosed the victim
with anal fissures due to constipation. The victim’s mother said she was
not concerned about anything else because the hospital staff “didn’t say
anything otherwise.” The next day, a DCS employee and a police
investigator arrived at the family’s home. They asked questions, asked to
look through the home, and asked that the victim return to the hospital. The
victim’s mother took the victim back to the ER, and another ER doctor
diagnosed the victim with anal fissures due to constipation. The victim’s
mother said that she did not mislead the hospital staff on November 22 or
23 and that, during the visit on November 23, “I didn’t hardly talk to the
doctors at all. . . . They already knew we was coming because I guess
Alicia [Cantrell] had already called them and told them we were going to be
down there. I didn’t have to explain anything to them.”

The victim’s mother testified that after they left the hospital on
November 23, she took the victim to the Our Kids Center in Nashville.
They arrived about 1:00 a.m. on November 24. After the [petitioner] was
arrested, Investigator Carter told the victim’s mother that semen had been
found on the victim’s shorts. The victim’s mother said she told the
investigator that she was “bothered” by that revelation and that she “didn’t
think that it could happen.”

On cross-examination, the victim’s mother testified that the
[petitioner] did not spend much time with the victim and only took care of
her when other people were not there to do it. The victim’s mother thought
the victim would be safe with the [petitioner] on November 22. She and
Hodges left for Smyrna about 12:45 p.m., and the [petitioner] texted her
about 2:00 p.m. The text did not mention blood. The victim’s mother and
Hodges returned horne about 5:00 p.m. The victim’s mother said that she
had to wake the [petitioner] and that he slept on the floor of the victim’s
room when he had to take care of the victim because “her alarm goes off
and you have to go in there . . . so he would just stay in there with her.”
When the victim’s mother went into the victim’s room that afternoon, she
did not smell anything. Hodges took off the victim’s diaper, and the diaper

_15_

was clean. The victim’s mother said that she yelled at the [petitioner]
because a small amount of blood was on the baby wipe and the victim had
been hurt in the [petitioner’s] care. She stated that the victim had problems
with bowel movements and that she thought the [petitioner] “might have
like kept [the victim’s] legs up to help her push hard bowels out.” She said
she told the [petitioner] that if he had hurt the victim, she would kill him.

The victim’s mother testified that Hodges pointed out that the
[petitioner] had emptied the trash can in the victim’s room. The victim’s
mother said that the [petitioner] usually did not take out the trash in the
middle of the day and that the trash usually was emptied at the end of every
nurses’s shift. The victim’s mother and the [petitioner] retrieved two dirty
diapers from the emptied trash. One of the diapers had stool in it, and the
other had urine in it. The victim’s mother and the [petitioner] also retrieved
two or three baby wipes and some paper towels out of the trash, Blood was
on one of the baby wipes, and blood and stool were on the paper towels.

The victim’s mother said the [petitioner] told her that the victim’s
“butt was raw and he didn’t want to burn her butt using the baby wipes so
he wiped with the paper towel.” Hodges also pointed out to the victim’s
mother that red or brown stains were on the victim’s pillowcase. The
victim’s mother did not see stains on the victim’s shorts. The State asked
the victim’s mother if she had “spread [the victim] open” to look at the
victim’s rectum as Hodges had testified, and the victim’s mother answered,
“No. l [held] her legs up.” She denied telling anyone from law enforcement
that she spread the victim’s legs apart to inspect the victim’s rectum,

The victim’s mother acknowledged that when she took the victim to
the ER on November 22, the victim was bleeding only slightly. However,
she said, “I take her to the ER [any time anything] happens.” She said she
told the ER doctor that blood and “poop” were in the victim’s diaper.
When the State reminded the victim’s mother that she had testified that no
blood was in either diaper retrieved from the trash, she stated that blood
was on one of the baby wipes and that the wipe was in the diaper
containing stool. She acknowledged that she did not show the dirty diaper
to the ER doctor but said that she told him about the diaper and that it was
in the car if he wanted to see it. The ER doctor inserted his finger into the
victim’s rectum during the examination, When the victim’s mother got
horne that night, she put the plastic bag containing the two dirty diapers and
paper towels back into the trash. The next day, the [petitioner’s] father

_16_

“took it off’ before Alicia Cantrell and Investigator Carter arrived. The
victim’s mother said she lied about where she was on November 22
because she did not want Hodges to get in trouble. However, when Hodges
told the truth about the trip, the victim’s mother “looked like the idiot.”
She acknowledged that she had been involved With DCS previously and
that Hodges did not have a reason to lie. The victim’s mother stated that
“[w]henever I fire a nurse they usually call DCS on me” and that she
disliked how DCS “treat[ed] people.” The victim’s mother said that when
Hodges did not show up for work as scheduled on November 23, she told
the [petitioner] that DCS would be “knocking on the door either today or
tomorrow.”

Dr. Nigel Fontenot testified that he was an ER physician at River
Park Hospital and examined the victim on November 23, 2011. The victim
had been examined by another doctor previously and returned to the ER for
another determination as to whether she had physical signs of abuse,
specifically anal trauma. Dr. Fontenot said he was aware prior to the exam
about possible sexual abuse and examined the victim’s vaginal and anal
areas. For the anal exam, Dr. Fontenot pulled apart the folds of the victim’s
buttocks to look at the tissue in the anal opening. He said that he did not
see any bruising or irritation to the tissue but saw a “tiny, tiny” fissure at
the 6:00 position. He said the fissure was “maybe just a few millimeters in
size.” Dr. Fontenot did not see any active bleeding. He acknowledged that
he had examined children for sexual abuse previously and said that he
could not recall any case in which he had seen evidence of sodomy. He had
seen, however, evidence of vaginal rape. He stated that in the instant case,
he did not see “anything that stood out as signs that there was a forcible
assault.”

On cross-examination, Dr. Fontenot testified that he did not use a
colposcope or external light source during the victim’s rectal examination
He conducted an external, visual exam and saw one fissure. He did not
conduct an internal exam. Therefore, he would not have been surprised to
learn that someone who conducted an internal exam saw an internal fissure.
However, he would have been surprised to learn that someone who
conducted an external exam saw more than one external fissure. He stated
that an extremely handicapped child such as the victim, who was unable to
resist a perpetrator, would experience less physical trauma during a sexual
assault than a child capable of resisting and that he would expect to see
“minimal external evidence of trauma.” In fact, the passage of an
extremely large, hard stool could cause more trauma to the child than a

_17_

penile penetration Dr. Fontenot had been advised that the victim had
experienced an unusually large bowel movement and he relied on that
statement for his diagnosis. Therefore, in his opinion, it was reasonable to
assume that the victim’s fissure had been caused by constipation. He
acknowledged that if he had known semen was present on the victim’s
clothing, he would have looked at the cause of the fissure differently.

At the conclusion of Dr. Fontenot’s testimony, the jury convicted the
[petitioner] as charged of aggravated rape of a child, a Class A felony.
After a sentencing hearing, the trial court sentenced him to fifty-eight years
in confinement to be served at 100%.

Id., at *1-13.

The petitioner subsequently moved for a new trial, and the trial court denied the
request A timely direct appeal followed. On direct appeal, the petitioner claimed the
trial court erred by denying his motion to suppress Littrell’s testimony and the Our Kids
report because the DCS worker who accompanied the victim to the examination
improperly revealed to employees of Our Kids that the petitioner had a prior juvenile
adjudication for a sex offense. Ia'. at *13. The petitioner argued the DCS worker
obtained the information regarding the juvenile conviction in violation of Tennessee
Code Annotated section 37-1-153. Id. The Court of Criminal Appeals noted the
petitioner failed to call the DCS worker at the suppression hearing, so it could not
determine whether the information had been wrongfully obtained. Id. Moreover, the
petitioner failed to call Littrell at the suppression hearing, so it could not determine what,
if any, prejudicial effect the information had on her. Id. This Court additionally found
the evidence presented at trial to be sufficient to sustain his conviction, and therefore
affirmed the judgment of the trial court Id.

The petitioner next filed a timely petition for post-conviction relief alleging
ineffective assistance of counsel. The post-conviction court appointed counsel, and the
petitioner filed an amended petition for post-conviction relief arguing trial counsel
provided ineffective assistance when failing to call both treating ER physicians to testify
at trial and failing to seek an independent medical expert The petitioner then sought
permission to file another amended petition for post-conviction relief, and the post-
conviction court allowed the amendment

_18_

In his second amended petition for post-conviction relief,l the petitioner asserted
the following additional grounds for his ineffective assistance of counsel claim: failure to
call Littrell to testify at the suppression hearing regarding the bias created by the
reference to the petitioner’s juvenile record; failure to object to Littrell’s testimony
regarding the opinions held by other medical practitioners in her office; failure to seek
suppression of the petitioner’s refusal to submit to a polygraph test and/or failure to
object when Carter offered testimony regarding the petitioner’s refusal at trial; failure to
adequately prepare Dr. Fontenot to testify at trial and/or failure to rehabilitate Dr.
Fontenot after he changed his opinion regarding whether sexual abuse caused the victim’s
injuries; failure to question Dr. Fontenot regarding the opinions held by Littrell; failure to
test the rape kit; failure to question Hodges about picking up narcotics from the pharmacy
and delivering them to her boyfriend during the time of injury; failure to ask the victim’s
mother whether Hodges had narcotics in her possession the day of the rape and/or
whether Hodges was under the influence of narcotics the day of the rape; failure to call
Dr. Logan, the first emergency room physician to examine the victim, as a witness at
trial; failure to admit Dr. Logan’s medical records for the victim into evidence; failure to
object to the admission of the victim’s shorts into evidence; failure to effectively cross
examine Dr. Boos; and failure to effectively cross-examine the victim’s mother.

The post-conviction court held a hearing on the request for post-conviction relief
and heard testimony from Littrell, trial counsel, and the petitioner. Littrell, a physician’s
assistant at the Our Kids Center in Nashville, testified she was on-call November 23,
2011, when the victim was taken to the clinic due to concerns of sexual abuse. The
victim’s mother told Littrell about the victim’s anal tears, and Littrell was also told the
petitioner had a history of juvenile sexual abuse and had been left alone with the victim.
Prior to evaluating the victim, Littrell learned she had already been evaluated by two
emergency room physicians who opined the anal tears were the result of constipation.
Based on her examination, experience, and the relevant literature, Littrell instead opined
the anal tears were the result of sexual abuse. She then collected evidence, known as the
“rape kit,” and this evidence was stored at Our Kids. Littrell did not know whether law
enforcement ever collected the rape kit for testing.

Trial counsel testified next Trial counsel has been a licensed Tennessee attorney
since 2005. From 2005 to 2011, trial counsel served as an assistant district attorney in
Warren County. Since entering private practice, trial counsel has focused on criminal
defense work. Trial counsel testified that he has tried numerous jury cases as both an
assistant district attorney and a criminal defense attorney.

l The petitioner titled the document “Third Amended Petition for Post-Conviction
Relief,” but our review of the record indicates it was actually the second amended petition

_19_

Trial counsel did not seek permission to obtain a medical expert to assist with the
case because he did not think it was necessary. Trial counsel did, however, seek and
receive permission to obtain an investigator. The investigator hired by trial counsel spent
67.3 hours on the matter and travelled 810 miles.

Trial counsel was aware law enforcement never tested the rape kit collected by
Littrell. When questioned during the post-conviction proceeding regarding the rape kit,
trial counsel testified he did not submit the kit for testing because resources were limited,
and he did not want to put too much money into something that may not advance his
client’s cause. Trial counsel conceded that in hindsight he may have proceeded
differently. At the time, however, he did not think the petitioner would benefit from
testing the evidence collected during the physical examination of the victim for the
presence of the petitioner’s semen

As part of his investigation trial counsel’s investigator attempted to contact
Hodges so on three occasions. Each time the investigator knocked on the door of
Hodges’ last known address but did not receive an answer. He eventually left a business
card requesting a return call. Hodges never called.

Trial counsel’s investigator also contacted the victim’s mother, who initially
refused to cooperate. Prior to trial, however, the victim’s mother reached out to the
investigator and scheduled a meeting. During their meeting, the victim’s mother
indicated that the day of the rape, she and Hodges left the victim alone with the petitioner
while they went to a pharmacy, picked up narcotics, and took them to Hodges’
boyfriend’s house. While there, Hodges went inside for thirty-five to forty-five minutes
while the victim’s mother remained in the car. The investigator subsequently served the
victim’s mother with a trial subpoena and again received a hostile response. The victim’s
mother appeared at trial, though, and offered testimony consistent with the information
she provided to the investigator.

Based on the pretrial conversation with the victim’s mother, trial counsel stated he
did not question Hodges about picking up and/or delivering narcotics the day of the rape
because he assumed she would deny it. Also, the petitioner told trial counsel that on
several occasions he ingested drugs with the nurses who cared for the petitioner, and trial
counsel was afraid Hodges would tell the jury this if questioned about picking up the
drugs while she was supposed to be caring for the victim. lnstead, trial counsel opted to
get this information into evidence through the victim’s mother.

Trial counsel testified at length regarding the efforts made to find Dr. Logan, the
first physician to evaluate the victim at the ER. The investigator hired by trial counsel
attempted to contact Dr. Logan at the hospital where the victim was treated, but the

_2()_

physician no longer did rotations at the hospital. Dr. Logan’s office in Henderson,
Tennessee had closed, so the investigator could not contact him at that address The
investigator then left a voicemail message at the phone number associated with the
Henderson, Tennessee office address but did not receive a return call. The investigator
located another office address for Dr. Logan in Lawrenceburg, Tennessee, but Dr. Logan
no longer worked in that office. The investigator then located an address for Dr. Logan
in Tampa, Florida, but the telephone number associated with the address went to a
locksmith. The investigator contacted a hospital in Tampa where Dr. Logan had
privileges but was told the physician had not practiced there in years The investigator
then found two additional addresses associated with Dr. Logan and left messages for him
at both but did not receive return calls.

After the attempts to locate Dr. Logan proved unfruitful, trial counsel took the
position that Dr. Logan’s examination could come into evidence through Dr. Fontenot,
who examined the victim after Dr. Logan Both trial counsel’s investigator and trial
counsel spoke with Dr. Fontenot prior to trial. At the time he treated the victim, Dr.
Fontenot was aware there were concerns of sexual abuse and was aware Dr. Logan had
previously examined the victim and opined the anal fissures were caused by the passage
of a large bowel movement Trial counsel admitted Dr. Logan’s medical records were
not exhibited at trial but could not remember his reason for not introducing them into
evidence. Trial counsel likewise could not remember whether he told Dr. Logan about
the semen stain on the victim’s shorts. He disagreed Dr. Logan changed his opinion at
trial after learning of the semen stain found on the victim’s shorts and instead
remembered Dr. Logan stating it would have been important to know about the semen
stain at the time he treated the victim.

Trial counsel admittedly did not file a motion to suppress evidence regarding the
petitioner’s refusal to take a polygraph test During cross-examination by trial counsel at
trial, Investigator Carter referenced the petitioner’s refusal to take a polygraph test
Rather than object, ask for a limiting instruction, or move for a mistrial, trial counsel
elected not to draw attention to Investigator Carter’s comment and instead continued
questioning the witness

When testifying at trial, Littrell indicated she spoke with several coworkers that
agreed with her diagnosis Trial counsel did not object to this hearsay testimony or cross-
examine Littrell regarding the names and qualifications of those coworkers because once
Littrell revealed that information at trial, it was too late for those witnesses to be located
and called to testify. Moreover, questioning Littrell about her decision to speak with her
coworkers would not have changed her actions and opinions Instead, it would have
highlighted Littrell’s testimony that others in her office agreed with her opinions

_21_

When the State moved to introduce the semen-stained shorts at trial, trial counsel
did not object to their admissibility Trial counsel received all evidence prior to trial and
knew the shorts had been properly preserved. He did not object to any deficiencies in the
chain-of-custody testimony because he believed they could be cured. Trial counsel stated
it was always his belief the victim was wearing the shorts the day of the rape. He
discussed all evidence with the petitioner prior to trial, including the shorts. The
petitioner saw the shorts and never voiced concern they were not the shorts his daughter
was wearing the day at issue. Further, trial counsel understood that Hodges told
Investigator Carter those were the shorts the victim was wearing the day of the rape, and
Investigator Carter then located the shorts using the information Hodges provided to him.

The petitioner testified last at the post-conviction hearing. The petitioner stated he
did not testify at trial because he was scared he would be questioned regarding his
juvenile conviction Had he known the conviction could not be used against him unless
he opened a door to its use through his testimony, he would have testified at trial. The
petitioner denied sexually assaulting his daughter.

The petitioner rested after calling Littrell, trial counsel, and the petitioner to
testify. The State did not present any additional proof. The post-conviction court denied
the petition, and in its order denying the petition found:

1. Counsel was not deficient by failing to call Lori Littrell to testify at the
suppression hearing. There is no reason to believe her testimony could
have been excluded even if she had testified.

2. [Trial] [c]ounsel was not deficient by failing to object to the question
regarding Ms. Littrell’s colleagues[’] opinions being consistent with her
findings Although the answer was possibly hearsay counsel reasonably
chose to not highlight that part of the answer by objecting and drawing
attention to it.

3. Similarly, [trial] counsel did not object to the answer given by
Investigator Carter that referenced in passing a polygraph request of the
[petitioner]. [Trial] [c]ounsel believed at the time the jury did not seem
interested in that part of the answer and therefore chose not to highlight
it by objecting even though the statement was inadmissible

4. [Trial] [c]ounsel spoke to Dr. Fonetnot before trial and was not deficient

in preparing the doctor for his testimony. [Trial] [c]ounsel did his best
to get Dr. Fontenot to give testimony favorable to his client

_22_

5. There was no deficiency in any other questioning or lack thereof in Dr.
Fontenot’s testimony.

6. [Trial] [c]ounsel should have investigated the results of the rape kit
However, there is no evidence of what the results of that test were so
there is no belief that a lost rape kit would have changed the verdict
without pure speculation

7. The allegation that [trial] counsel did not properly cross-examine Sethly
Hodges is without merit [Trial] [c]ounsel did thoroughly question
Hodges, and his explanation of why he did not ask certain questions of
Hodges made perfect sense. [Trial] [c]ounsel had a legitimate strategy
in his decision

8. [Trial] [c]ounsel tried repeatedly to contact Dr. Logan [and] was unable
to do So. Failure to call a witness when you are unable to ascertain what
that witness’ response will be is not deficient performance

9. The testimony of Investigator Carter was not objectionable with regard
to the clothing he recovered. [Trial] [c]ounsel’s failure to cross-
examine Sethly Hodges and Tracy Martin cannot be considered to be
deficient as there is no proof in the record as to what they would have
said when pushed about the clothes the victim was wearing. The failure
to object to the District Attorney’s characterization that the clothes were
the ones worn by the victim is questionable, however, not so damning as
to affect the verdict

10. There is no evidence that Dr. Boos[’] testimony would change had other
questions been asked of her. No testimony was presented by her at the
post-conviction hearing.

ll.There is no evidence that Kristian Boyd would have testified as
[petitioner’s] post-conviction counsel suggests in their motion Further,
trial counsel’s investigator properly talked to Boyd before trial and trial
counsel was as prepared as he could be for her testimony.

12.There is ample evidence that [the petitioner] made a knowing,
intelligent and voluntary waiver of his right to testify. This allegation
is wholly without merit The [petitioner] was advised repeatedly
regarding the advantages and disadvantages of testifying. He was also
properly questioned by the Court on this issue as well. The

_23_

[petitioner’s] statements indicate that he was very aware of his decision
at the time [and] would now like to change his mind because of the
outcome. [The petitioner] was not misinformed with regard to what
may or may not be asked of him on the witness stand.

This timely appeal followed.
Analysis

On appeal, the petitioner argues trial counsel provided ineffective assistance by
failing to: object to Investigator Carter’s testimony regarding the petitioner’s refusal to
take a polygraph test; object to the hearsay testimony of Littrell regarding opinions by
unnamed coworkers; introduce the medical records of Dr. Logan; mention the untested
rape kit; question Hodges regarding her possession or use of drugs prior to reporting the
sexual assault; object to the admission of shorts belonging to the victim with the
petitioner’s semen on them; object to the State’s characterization of the shorts during
closing statements as the shorts worn by the victim the day of the assault; and adequately
prepare Dr. Fontenot for trial. According to the petitioner, these cumulative errors caused
prejudice by substantially impairing the ability of the jury to accurately weigh and assess
the proof. The State contends the petitioner failed to show how trial counsel’s
performance was deficient and instead challenges the strategic decisions of trial counsel
made after adequate trial preparation We agree with the State and affirm the judgment
of the post-conviction court

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate his
or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
Tenn. Code Ann § 40-30-103. The post-conviction petitioner bears the burden of
proving his allegations of fact by clear and convincing evidence. See Tenn. Code Ann §
40-30-110(f). “‘Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.”’ Lane v. State,
316 S.W.3d 555, 562 (Tenn 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216
(Tenn. 2009)).

Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses Dellinger v. State, 279 S.W.3d 282, 292 (Tenn 2009) (citing R.D.S. v. Stale,
245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter
“‘entrusted to the trial judge as the trier of` fact.”’ R.D.S., 245 S.W.3d at 362 (quoting
State v. Oa'om, 928 S.W.2d 18, 23 (Tenn 1996)). When an evidentiary hearing is held in
the post-conviction setting, the findings of fact made by the court are conclusive on
appeal unless the evidence preponderates against them. See Tia'well v. State, 922 S.W.2d

_24_

497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the
appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law
to the facts of the case is de novo, with no presumption of correctness See Ru]j’v. State,
978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which
presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s findings of fact See Fiela’s v. State,
40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment and article I, section 9 of the Tennessee
Constitution both require that criminal defendants receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted).
When a petitioner claims he received ineffective assistance of counsel, he has the burden
of showing trial counsel’s performance was deficient and this deficient performance
prejudiced the outcome of the proceeding Stricklana’ v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strz'ckland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn 1975)).
With regard to the standard, our Supreme Court has held:

[T]he assistance of counsel required under the Sixth Amendment is counsel
reasonably likely to render and rendering reasonably effective assistance lt
is a violation of this standard for defense counsel to deprive a criminal
defendant of a substantial defense by his own ineffectiveness or
incompetence . . . Defense counsel must perform at least as well as a lawyer

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with ordinary training and skill in the criminal law and must
conscientiously protect his client’s interest undeflected by conflicting
considerations

Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at
934-35).

When reviewing trial counsel’s performance, this 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 Stricklana’, 466 U.S. at
689). The fact a trial strategy or tactic failed or was detrimental to the defense does not
alone, support a claim for ineffective assistance of counsel. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992). Deference is given to sound tactical decisions made
after adequate preparation for the case, Ia’.

To satisfy the prejudice prong of the test the petitioner “must establish a
reasonable probability that but for counsel’s errors the result of the proceeding would
have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
Stricklana’, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.”’ Ia’. (quoting Stricklana’, 466 U.S. at 694). In
order for the petitioner to prevail, the deficient performance must have been of such
magnitude that the petitioner was deprived of a fair trial and the reliability of the outcome
was called into question Finch, 226 S.W.3d at 316.

Courts need not approach the Stricklana' test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goaa’, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

When a petitioner contends trial counsel failed to discover, interview, or present
witnesses in support of his defense, the petitioner must call those witnesses to testify at an
evidentiary hearing Black v. State, 794 S.W.2d 752, 757 (Tenn Crim. App. 1990). This
is the only way the petitioner can establish:

that (a) a material witness existed and the witness could have been
discovered but for counsel’s neglect in his investigation of the case, (b) a
known witness was not interviewed, (c) the failure to discover or interview
a witness injured to his prejudice, or (d) the failure to have a known witness

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present or call the witness to the stand resulted in the denial of critical
evidence which inured to the prejudice of the petitioner.

Id.

Here, the petitioner challenges a string of tactical decisions made by trial counsel
during the course of representation after adequate trial preparation Trial counsel’s
investigator spent 67.3 hours on this case and spoke with multiple witnesses In addition,
trial counsel spoke with Dr. Fontenot met with the petitioner, and reviewed all evidence
with the petitioner prior to trial. Based on our review of the record, trial counsel was
adequately prepared for the case.

During the post-conviction hearing, trial counsel offered explanations for each
tactical decision challenged by the petitioner. With respect to Investigator Carter’s
testimony regarding the petitioner’s refusal to take a polygraph test trial counsel
explained Investigator Carter unexpectedly offered this information on cross-
examination Rather than cease his questioning of the witness and object or ask the trial
judge for a mistrial or limiting instruction, trial counsel decided not to draw attention to
the statement and instead continued with his cross-examination of the witness Similarly,
when Littrell indicated she spoke with her coworkers regarding the victim and they
agreed with her diagnosis trial counsel did not object to this hearsay testimony or cross-
examine Littrell regarding the identity and credentials of the coworkers she spoke with.
Again, trial counsel stated he did not wish to draw attention to the fact others agreed with
Littrell’s finding the anal fissures were the result of sexual abuse.

When questioned during the post-conviction proceeding regarding the rape kit
trial counsel testified he did not ask for the kit to be tested because funds were limited,
and he did not think that would be the best use of resources Trial counsel also did not
think testing the rape kit would advance the petitioner’s cause. While trial counsel
admitted in hindsight he may have preceded differently with respect to the rape kit the
petitioner is not entitled to the benefit of hindsight Howell, 185 S.W. 3d at 326. Trial
counsel was not questioned regarding why he did not question witnesses regarding the
reason the evidence collected by Our Kids remained untested, and on appeal we cannot
speculate as to the reason trial counsel did not do so.

With respect to Dr. Logan, trial counsel recounted the extensive measures taken by
his investigator to locate the physician He tried at least six different addresses in two
different states, left multiple voicemail messages, and never received a response. Trial
counsel conceded Dr. Logan’s medical records were not entered as evidence at trial.
Trial counsel could not remember the reason for the omission but clarified his position at
trial had been that Dr. Fontenot who did testify, reviewed Dr. Logan’s medical records

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when treating the victim, so Dr. Fontenot could testify as to Dr. Logan’s medical
diagnosis

Trial counsel testified at length during the post-conviction hearing regarding his
tactical reasons for not questioning Hodges about her possession or use of drugs prior to
reporting the rape. Trial counsel did not think Hodges would admit to the delivery and
potential ingestion of drugs and instead hoped to get this information into evidence
through the victim’s mother. Moreover, the petitioner previously told trial counsel he
had taken drugs with many of the horne healthcare nurses who visited his home to care
for the victim, and trial counsel did not want to ask Hodges questions that may result in
the jury hearing this information

The petitioner challenges trial counsel’s failure to object to the introduction into
evidence of the victim’s shorts bearing the petitioner’s semen, Similarly, the petitioner
challenges trial counsel’s failure to object to the comment made by the State during
closing arguments regarding the shorts being worn by the victim the day of the rape.
When questioned about this during the post-conviction hearing, trial counsel stated he did
not object to the chain-of-custody because, based on the information regarding the shorts
he received prior to trial, he believed the State could correct any custody errors Further,
he reviewed the evidence with the petitioner prior to trial, and the admissibility of the
shorts was never an issue. The petitioner saw the shorts and did not voice concern his
daughter was not wearing them the day at issue. lt was also trial counsel’s belief that
Hodges told Investigator Carter those were the shorts the victim was wearing the day of
the rape, and Investigator Carter then located the shorts using the information Hodges
provided to him.

Lastly, the petitioner alleges trial counsel did not adequately prepare Dr. Fontenot
for trial by telling him in advance about the semen stain on the victim’s shorts During
the post-conviction hearing however, trial counsel indicated his investigator interviewed
Dr. Fontenot and trial counsel then spoke with Dr. Fontenot via telephone regarding his
opinions Dr. Fontenot knew of the sexual abuse allegations when he treated the victim
and knew he was corning to trial because there was an allegation of very violent sexual
abuse. Trial counsel could not remember whether he told Dr. Fontenot about the semen
stain found on the victim’s shorts, but trial counsel remembered discussing the reasons
for Dr. Fontenot’s opinion the victim’s injuries were not the result of sexual abuse prior
to trial.

The petitioner failed to offer any evidence at the post-conviction hearing that the
challenged actions were anything but tactical decisions made after adequate preparation
for trial. The petitioner is not entitled to the benefit of hindsight simply because he is not
satisfied with the jury’s verdict Even if there were some procedural oversights by trial

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counsel, we have found nothing in the record to indicate the petitioner endured prejudice
as a result of the actions of trial counsel.

The petitioner contends the cumulative errors of trial counsel resulted in the denial
of a fair trial. We discerned no errors, so this argument is without merit The petitioner
is not entitled to post-conviction relief.

Conclusion

Based on the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.

J. ROSS DYER, JUDGE

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