         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 25, 2007

               CONNIE LEE ARNOLD v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Carter County
                            No. S15534 Robert E. Cupp, Judge



                     No. E2006-00440-CCA-R3-PC Filed August 3, 2007


The petitioner, Connie Lee Arnold, appeals the Carter County Criminal Court’s denial of his petition
for post-conviction relief from his convictions for child rape and especially aggravated sexual
exploitation of a minor and resulting effective thirty-seven-year sentence. On appeal, he contends
that (1) he received the ineffective assistance of trial counsel because his attorney failed to file a
motion for change of venue based on pretrial publicity and (2) the post-conviction court judge erred
by refusing to recuse himself from this case. Upon review of the record and the parties’ briefs, we
conclude that the petitioner did not receive the ineffective assistance of counsel and that the post-
conviction court did not err by denying the petitioner’s motion to recuse. Nevertheless, we hold that
the judge who presided over this post-conviction proceeding is disqualified from any subsequent
proceedings in this case.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and D. KELLY
THOMAS, JR., JJ., joined.

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Connie Lee Arnold.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Anthony Wade Clark, District Attorney General; and Kenneth Baldwin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

       This case has an extensive procedural history. The record reflects that in November 1994,
the petitioner was indicted in Johnson County for sexual crimes against his minor daughter.
Subsequently, the case was transferred to Carter County for trial. In November 1995, a Carter
County Criminal Court jury convicted the petitioner of rape of a child, a Class A felony, and
especially aggravated sexual exploitation of a minor, a Class B felony. On direct appeal, this court
gave the following factual account of the crimes:

               Earnest Hendrix, a cab driver, testified that on October 23, 1994, he
               was driving the defendant from Knoxville to Kingsport. He said that
               the defendant showed him a photograph depicting oral sex. Mr.
               Hendrix said that the defendant told him that the penis in the
               photograph was his and the girl was his daughter. The state
               introduced a Polaroid photograph into evidence as exhibit two, and
               Mr. Hendrix identified it as the one displayed by the defendant. He
               testified that the defendant offered to have his daughter perform oral
               sex on him in lieu of the cab fare. Mr. Hendrix said that upon their
               arrival in Kingsport, he called the police.

                       The victim testified that she was eleven years old in October
               1994. She said that before Halloween, she was attending to her sick
               grandmother when her father, the defendant, came to the door and
               motioned her out of the room. She said the defendant grabbed her
               arm and took her to his bedroom. She said he put his camera on the
               dresser, pushed her head down, stuck his penis in her mouth, and told
               her to go up and down on it. She said that he reached over and
               pushed the button on the camera. She identified exhibit two as the
               photograph the defendant made that day. The jury found the
               defendant guilty of both counts.

State v. Connie L. Arnold, No. 03C01-9902-CR-00081, 2000 Tenn. Crim. App. LEXIS 20, at **2-3
(Knoxville, Jan. 11, 2000), perm. to appeal denied, (Tenn. 2000). On direct appeal, this court
affirmed the petitioner’s convictions. Id. at *13.

        Subsequently, the petitioner filed a pro se petition for post-conviction relief. However, the
post-conviction court dismissed the petition without appointing counsel or affording the petitioner
an evidentiary hearing, concluding that the petition failed to state a colorable claim for relief. See
Connie Lee Arnold v. State, No. E2001-02526-CCA-R3-PC, 2002 Tenn. Crim. App. LEXIS 970
(Knoxville, Nov. 13, 2002). Although a majority panel of this court affirmed the post-conviction
court, our supreme court remanded the case for reconsideration in light of that court’s recently
released opinion of Burnett v. State, 92 S.W.3d 403 (Tenn. 2002). See Connie Lee Arnold v. State,
No. E2001-02526-SC-R11-PC, 2003 Tenn. LEXIS 211 (Knoxville, Mar. 10, 2003). However, on
remand, a majority of this court again affirmed the lower court’s ruling, stating that “the petitioner
presented only a bare and conclusory allegation as to a constitutional violation, and, as such, his
claim was not colorable so as to avoid summary dismissal.” Connie Lee Arnold v. State, No.
E2003-00691-CCA-RM-PC, 2003 Tenn. Crim. App. LEXIS 353, at *16 (Knoxville, Apr. 15, 2003).
Our supreme court granted the petitioner’s Rule 11 application for permission to appeal and
concluded that the petition stated a colorable claim for ineffective assistance of counsel based upon


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trial counsel’s failure to seek a change of venue due to pretrial publicity. Arnold v. State, 143
S.W.3d 784 (Tenn. 2004). The supreme court remanded the case to the post-conviction court for the
appointment of counsel and an evidentiary hearing. Id. at 787.

    On September 20, 2005, appointed counsel filed a motion titled “MOTION FOR A
CHANGE OF VENUE.” In the motion, the petitioner alleged as follows:

                  Defendant/Petitioner feels that it would be impossible to obtain a fair
                  and just hearing before this honorable Court because
                  Defendant/Petitioner has, in the past, appealed several rulings of this
                  Court which have resulted in reversal, and Defendant/Petitioner has
                  filed a formal complaint against the Honorable Judge Robert E. Cupp
                  with the Board of Professional Responsibility and/or the Judicial
                  Board.

On October 12, 2005, counsel also filed an amended petition for post-conviction relief, alleging that
the petitioner received the ineffective assistance of counsel because his trial attorney, among other
things, failed to “take adequate measures to protect Petitioner from the damages caused by pretrial
publicity of the case.” On November 2, 2005, the post-conviction court concluded that the
petitioner’s motion for change of venue was actually a motion to recuse, and in a written order, the
court denied the petitioner’s motion, stating that “[t]his Court has no bias or prejudice against this
Petitioner, and assures the Petitioner that he will get a fair hearing.”

        An evidentiary hearing on the petitioner’s post-conviction petition was held on November
9, 2005. At the hearing, the post-conviction court heard the following testimony, pertinent to this
appeal: The then fifty-six-year-old petitioner testified that in October 1994, he was arrested in
Sullivan County and charged with crimes against the victim. However, those charges were later
dismissed, and the petitioner was indicted in Johnson County for crimes against the victim. The
petitioner stated that during jury selection for the petitioner’s Johnson County trial, the trial court
had to declare a mistrial and transferred the case to Carter County. The petitioner stated that
information about his case was on the radio and in the newspapers “from Mountain City to Carter
County.” The petitioner did not know how many articles about his case appeared in newspapers, but
the defense introduced into evidence two newspaper articles. The undated articles were titled “Man
convicted in rape of 11-year-old daughter” and “Convict accuses lawyer, delays sentencing.”1 The
petitioner stated that he did not have access to a radio while he was in jail and was awaiting trial but
that his wife told him about the publicity his case was receiving. He stated that he believed the
publicity influenced the public’s impression of his case. On cross-examination, the petitioner
acknowledged that potential jurors stated during voir dire that they did not know anything about this
case.



         1
         The post-conviction court noted on the record that the articles were published post-trial and appeared to
come from the Johnson City Press newspaper.

                                                         -3-
         The petitioner’s trial attorney testified that he became licensed to practice law in Tennessee
in 1978 and that a majority of his practice involved criminal defense. Counsel talked with the
petitioner about the charges against him many times, and the petitioner was very interested in his
case. Counsel stated that publicity “was not a problem in this case.” He said that during jury voir
dire in Johnson County, a potential juror gave a response to a question that resulted in the trial court
declaring a mistrial. Counsel stated that the case was transferred to Carter County and that he did
not remember having a problem selecting a jury due to publicity. On cross-examination, counsel
testified that the petitioner asked him about media coverage in this case but did not seem particularly
concerned about it.

         Judge Lynn Brown testified that he presided over the petitioner’s trial. Initially, the petitioner
was to be tried in Johnson County. However, during jury selection in Johnson County, a potential
juror’s answer to a question revealed to the other potential jurors that the petitioner had a prior
criminal history. After the potential juror’s outburst, Judge Brown granted a motion for change of
venue and moved the case to Carter County. He stated that he transferred the petitioner’s case to
Carter County because the petitioner could not get a fair jury in Johnson County. He said that
pretrial publicity was not the reason for the transfer and that he decided to transfer the case because
too many potential jurors in Johnson County knew the petitioner. Judge Brown stated that the
petitioner had prior convictions for sexual crimes against children and that “Johnson County is just
such a small community that [the petitioner] was rather notorious as a criminal.”

        On cross-examination, Judge Brown testified that The Tomahawk was the only general-
circulation newspaper in Johnson County, that he had subscribed to the newspaper for about twenty
years, and that the newspaper did not print arrests or criminal court proceedings. Judge Brown stated
that there also was no pretrial publicity about the petitioner’s case in the Elizabethton Star or the
Johnson City Press but that he believed there was some newspaper coverage about the petitioner’s
trial. However, he said the Carter County newspapers did not know anything about the petitioner
and were not interested in his case. Judge Brown acknowledged that he did not watch much
television and could not comment on the amount of case publicity that appeared on television. He
stated that a “number” of potential jurors in Johnson County knew the petitioner and had a negative
opinion of him. During jury voir dire in Johnson County, Judge Brown asked the potential jurors
if they had heard about the case from the media, and the jurors said no. However, they told Judge
Brown that they “had heard about [the petitioner] from talk in the . . . tightknit mountain
community.”

        Former assistant district attorney general Lisa Rice testified that she prosecuted the
petitioner’s case. She stated that she did not recall any pretrial publicity in the case and that she did
not remember the media being present during the trial. She also did not remember any potential
jurors making any comments about pretrial publicity.

        In a written order, the post-conviction court ruled that the petitioner had failed to show that
he received the ineffective assistance of counsel because his trial attorney failed to file a motion for
change of venue due to pretrial publicity. The court noted that Judge Brown testified he moved the


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petitioner’s trial from Johnson County to Carter County due to the petitioner’s reputation in Johnson
County, not due to pretrial publicity. The court noted that Judge Brown, trial counsel, and Lisa Rice
all testified that pretrial publicity was not a problem in this case. The post-conviction court denied
the petition for post-conviction relief.

                                                      II. Analysis

                                        A. Ineffective Assistance of Counsel

        The petitioner contends that he received the ineffective assistance of counsel.2 Specifically,
he contends that because so many potential jurors in Johnson County had a negative opinion of him,
his reputation in that community must have been affected by publicity. He also argues that because
Johnson County and Carter County “are closely related and intermingled,” the jurors in Carter
County also must have been affected by pretrial publicity. The State contends that the post-
conviction court property denied the petition for post-conviction relief. We agree with the State.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To establish prejudice, the petitioner 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.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

                   [b]ecause a petitioner must establish both prongs of the test, a failure
                   to prove either deficiency or prejudice provides a sufficient basis to
                   deny relief on the ineffective assistance claim. Indeed, a court need
                   not address the components in any particular order or even address
                   both if the [petitioner] makes an insufficient showing of one
                   component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

        Initially, we note that the trial transcript has not been included in the appellate record. During
the evidentiary hearing, the State and the petitioner requested that the trial transcript be made part


         2
          W e note that the petitioner’s brief does not comply with Tennessee Rule of Appellate Procedure 27(a)(6).
Pursuant to the rule, it is the petitioner’s duty to include in his brief a statement of the facts relevant to the issues on
appeal with appropriate record references. The statement of facts in the petitioner’s brief contains no evidence
presented at the evidentiary hearing.

                                                             -5-
of the record on appeal. The post-conviction court refused, stating

                Again, and [the Court of Criminal Appeals] may send it back and say,
                Cupp, you’re wrong, but it would assume to me that . . . that is
                something that they Court of [Criminal] Appeals could take judicial
                notice of, and that’s the facts of this case that’s in their computers
                down there.

Once again, we must reiterate that this court may take judicial notice of the record from the
petitioner’s direct appeal. See State ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (1964).
Because such judicial notice is not required, the post-conviction court should have ordered that the
trial transcript be made a part of the appellate record as the parties requested. However, given that
the post-conviction court apparently did not consider the trial transcript when ruling that the
petitioner was not entitled to post-conviction relief, we choose not to take judicial notice of the trial
transcript from the petitioner’s direct appeal.

         That said, we hold that the post-conviction court properly concluded that the petitioner did
not receive the ineffective assistance of counsel. As the post-conviction court noted, Judge Brown,
trial counsel, and Lisa Rice testified that pretrial publicity was not a problem in this case. Although
the petitioner argued that there was media coverage of his case “from Mountain City to Carter
County,” he stated that he learned about pretrial publicity from his wife and acknowledged that
potential jurors stated they did not know anything about his case. The petitioner introduced into
evidence only two newspaper articles about his case, and both of those articles appeared in
newspapers after the jury convicted the petitioner. Given that the petitioner has presented no
evidence of pretrial publicity in this case, trial counsel did not render deficient performance by
failing to file a motion for change of venue.

                                         B. Motion to Recuse

        Next, the petitioner contends that the post-conviction court judge committed reversible error
by refusing to recuse himself from this case. He contends that the judge should have recused himself
“due to Appellant’s complaint to the Board of Judiciary against said judge” and because comments
throughout the court’s thirty-page opinion denying post-conviction relief demonstrate that the judge
“held a predisposition to rule against the Appellant.” The State contends that the petitioner has failed
to show that the post-conviction court erred by refusing to grant the petitioner’s motion to recuse
because no unjust disposition of the case has occurred. We agree with the State. However, we
conclude that the judge is disqualified from any subsequent proceedings involving this petitioner.

        During the petitioner’s evidentiary hearing, the post-conviction court was fair, patient, and
courteous to the petitioner and all of the attorneys involved with the hearing. However, upon our
review of the post-conviction court’s order denying post-conviction relief, we must agree with the
petitioner that much of the language in the order is, to say the least, troubling. In the order, the post-
conviction court makes the following statements:


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                  This matter is now before this court on Post-Conviction as a result of
                  the petitioner convincing six of eight Appellate Judges that there was
                  adverse publicity in this case and neither the attorney nor the trial
                  judge did anything to protect him from this exploitive media
                  coverage.3

                  ....

                          This Petition for Post Conviction relief is nine legal size
                  pages. It can best be summarized by quoting from Judge Glenn’s
                  opinion, where a majority of the [Court of Criminal Appeals] agreed
                  with this judge that the petitioner failed to present a colorable claim.

                  ....

                         Incredibly, [it] will hereafter be shown there was no media
                  coverage. Be that as it may, the Supreme Court reversed and
                  remanded for this court to proceed consistent with their opinion. This
                  Court has now followed that directive.

                  ....

                  Apparently, the petitioner does not remember the cab driver testifying
                  that it was a picture of his daughter that petitioner offered up for oral
                  sex, in lieu of cab fare. Moreover, and really and truly
                  unbelievable[,] his eleven year old daughter gets on the witness stand
                  and looks at this picture that a jury has seen or will be seeing and
                  testifies that its her father’s penis in her mouth. Only, and I mean
                  only Mr. Arnold would be capable of saying something like this.

                  ....

                         This court is concerned that over the last eleven (11) years that
                  taxpayer after taxpayer dollar has been spent on frivolous proceedings
                  by this petitioner. This court is amused and hopeful [that] the
                  following will amuse the Appellate Judges[.] [I]t is from the


         3
          Presumably, the six appellate judges to which the post-conviction court refers are the five justices of our
supreme court, who ultimately remanded this case to the post-conviction court for the appointment of counsel, and
Judge Joseph M. Tipton, who twice dissented when a panel of this court affirmed the post-conviction court’s initial
denial of post-conviction relief. However, the post-conviction court’s statement is incorrect. The six judges simply
concluded that the petitioner’s petition stated a colorable claim for post-conviction relief that warranted the
appointment of counsel and an evidentiary hearing. No judge on this court or the supreme court has ruled that there
was adverse publicity in this case.

                                                         -7-
                   petitioner’s complaint against this judge:

                                    There is no limit to how low[] Judge Cupp
                            will go, just to get back at the Supreme Court
                            Judge[s], in this case, even causing poor old hard
                            working, taxpaying people, to pay out money, on and
                            for lawyers, to sit around and do nothing, in a court
                            case, [namely] mine. . . .

                          This petitioner by his correspondence to this judge and
                   everyone else thinks that he controls the Supreme Court of this state.
                   We all know that this is not true, but it doesn’t keep him from
                   thinking it . . . .

                   ....

                          I know this opinion will result in two things, if nothing else.
                   An appeal and a complaint to the Board of Judiciary. Be that as it
                   may, this petitioner’s Post-Conviction is without merit, and it is
                   ACCORDINGLY DISMISSED. This court has reflected back on
                   this matter and can reach no other conclusion as to how much
                   attorney, court reporter, clerks, prosecutors and judges resources have
                   been expended on this case. The taxpayer bill to this case would be
                   simply incredible.

                           This court would be remiss in its duty if at some point it did
                   not send this order, along with everything else that has happened in
                   this case to the original trial jurors so that they can see what has
                   happened with this case over the last eleven (11) years. It is not my
                   intent to do that until such time as this matter runs its course, if ever.

                            Finally, this court has attached a copy of a Christmas card sent
                   to this judge by the petitioner.4 This makes me ill, not at getting the
                   card, but at its content and the obvious purpose it was sent.

        “A judge shall disqualify himself . . . in a proceeding in which the judge’s impartiality might
reasonably be questioned.” Tenn. Sup. Ct. R. 10, Canon 3E(1). “[A] trial judge should grant a
recusal whenever the judge has any doubts about his or her ability to preside impartially.” Alley v.
State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). However, recusal also is necessary “when a
person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge,
would find a reasonable basis for questioning the judge’s impartiality.” Id. This objective standard


       4
           The card is not in the appellate record.

                                                      -8-
“‘takes into account that disqualification is required if there is an appearance of partiality to the
reasonable observer, and it precludes a judge from avoiding recusal merely by avowing his or her
impartiality.’” State v. Conway, 77 S.W.3d 213, 225 (Tenn. Crim. App. 2001) (quoting State v.
Connors, 995 S.W.2d 146, 149 (Tenn. Crim. App. 1998)); see also State v. Mark A. Schiefelbein,
Nos. M2005-00166-CCA-R3-CD, M2005-02370-CCA-R10-CO, 2007 Tenn. Crim. App. LEXIS
213, at **122-23 (Nashville, Feb. 14, 2007), perm. to appeal denied, (Tenn. 2007). “Adverse rulings
by a trial court are not usually sufficient grounds to establish bias.” Alley, 882 S.W.2d at 821. The
“issue to be determined is not the propriety of the judicial conduct of the trial judge, but whether he
committed an error which resulted in an unjust disposition of the case.” State v. Hurley, 876 S.W.2d
57, 64 (Tenn. 1993); State v. Boggs, 932 S.W.2d 467, 472 (Tenn. Crim. App. 1996). A trial judge’s
refusal to grant a motion to recuse will be reviewed under an abuse of discretion standard. State v.
Raspberry, 875 S.W.2d 678, 681 (Tenn. Crim. App. 1993).

        We note that a trial judge is not required to recuse himself merely because a party has filed
a formal complaint against the judge. See State v. Parton, 817 S.W.2d 28, 30 (Tenn. Crim. App.
1991). Moreover, we can understand the post-conviction judge’s frustrations with the petitioner in
this case. By the petitioner’s own admission in his appellate brief, he has “consistently attacked the
trial court, his attorneys, the prosecuting attorney, the police investigators, and the post-conviction
court.” Nevertheless, we cannot condone the inappropriate comments made about the petitioner or
the disrespectful tone used toward any judge on this court or our supreme court. That said, we have
carefully reviewed the record and have considered the petitioner’s ineffective assistance of counsel
claim. The petitioner has failed to present absolutely any evidence that he received the ineffective
assistance of counsel in this case. Therefore, while many of the post-conviction court’s comments
in the order were egregious, we are unable to conclude that the petitioner suffered any prejudice or
that the comments led to an unjust disposition of the case. Thus, we hold that the post-conviction
court did not abuse its discretion by denying the petitioner’s motion to recuse.

       However, the post-conviction court’s remarks certainly establish, from an objective
standpoint, a reasonable basis for questioning the judge’s impartiality in any future proceedings
involving this petitioner. Therefore, the post-conviction court judge is disqualified from any
subsequent proceedings in this case.

                                          III. Conclusion

       Based upon the record and the parties’s briefs, we affirm the judgments of the post-
conviction court. Judge Cupp is disqualified from any subsequent proceedings in this case.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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