         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 27, 2010

        DORMAN O’NEAL ELMORE, JR. v. STATE OF TENNESSEE

           Direct Appeal from the Criminal Court for Cumberland County
                         No. 5849   David Patterson, Judge




                   No. E2009-01075-CCA-R3-PC - Filed May 17, 2010


A Cumberland County jury convicted the petitioner, Dorman O’Neal Elmore, Jr., of five
counts of rape, Class B felonies. The trial court sentenced the petitioner to an effective
sentence of twenty-two years in the Tennessee Department of Correction. The petitioner
pursued a delayed appeal pursuant to the Post-Conviction Procedure Act, and this court
affirmed his convictions and sentences. In his post-conviction petition, the petitioner alleges
that he received ineffective assistance of counsel at trial. Specifically, the petitioner argues
that trial counsel’s failure to file various pre-trial motions, to properly prepare and investigate
the case, and to investigate the victim’s background constituted deficient performance and
prejudiced the defense. The post-conviction court denied relief. Following our review, 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.C. M CL IN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J AMES C URWOOD W ITT, J R., JJ., joined.

Caroline E. Knight, Crossville, Tennessee, for appellant, Dorman O’Neal Elmore, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                          Background

        This court, in its opinion on delayed appeal, summarized the facts underlying this case
as follows:
        In May of 2000, a Cumberland County grand jury returned a
multi-count indictment charging the [petitioner] with eight counts of rape of
his ex-wife’s teenage daughter. Prior to trial, the State dismissed counts four
through six of the indictment. June Walker, the victim’s mother began dating
the [petitioner] in October of 1996, and the [petitioner] moved into the Walker
home around February of 1997. At trial, the victim testified that the
[petitioner] raped her on five separate occasions. The first incident occurred
when the victim’s mother took the victim’s brother to the hospital in March of
1997, when the victim was thirteen years old. The victim testified that the
[petitioner], who at the time was wearing a pair of tan shorts, came into her
bedroom that evening, and “he took my arms and took them over my head.
And he took my pants off and raped me.” The victim further testified that she
tried to kick the [petitioner] and push him away without success. The
[petitioner] explained to the victim that because “he couldn’t get it from [her]
mother, . . . he’d get it from [the victim].” Furthermore, the victim testified
that she began to bleed, and the [petitioner] told her that she had lost her
virginity. He also warned the victim that if she told her mother about what
happened, he would kill the entire family.

        The second such incident occurred the following day. The victim
testified that the [petitioner] picked her up from school and took her home.
The two were alone in the house, and the [petitioner] called the victim upstairs
to her mother’s bedroom. Believing that the [petitioner] was going to
apologize to her because of his actions the previous night, the victim walked
upstairs. At this time, the [petitioner] again removed the victim’s pants, held
her down, and raped her, while wearing a condom. The third such event,
which the victim testified she believed occurred in April of 1997, took place
as the victim sat in the passenger seat of the car near a set of dumpsters in the
Linary community of Cumberland County. The [petitioner] forcibly took the
victim’s hand from the side of her seat, unzipped her pants, and “stuck his
penis in [her] vagina.”

        The victim moved to West Virginia at the end of the 1997 school year
to live with her father. She attended school in West Virginia the following
school year. The [petitioner] and the victim’s mother married in February
1998, and the victim returned to Crossville in August of 1998. The [petitioner]
and the victim’s mother divorced in October of 1998 but continued to maintain
a relationship. The fourth incident took place in October of 1998 when the
victim’s grandmother sent her with the [petitioner] to buy a gallon of milk.
The victim testified that the [petitioner] stopped behind Cat’s Car Wash, where

                                       -2-
“he unzipped his pants and stuck [the victim’s] hand over his penis. And he
stuck it in [her] mouth and started pushing [her] head up and down.” Two
weeks before Christmas in December of 1998, the fifth incident occurred when
the [petitioner] asked the victim to go to Wal-Mart with him ostensibly to look
at a ring for her mother for Christmas. Instead, the [petitioner] drove the
victim to the Camelot community where he told the victim to exit the vehicle.
The victim testified, “he pulled my pants down to my ankles and laid me on
the hood of his car and stuck his penis in my vagina.” The victim kicked the
[petitioner] and “busted his mouth.”

        Several days before New Years, the victim told her mother and the
[petitioner] in a room full of people that the [petitioner] had raped her. In
response, the victim’s mother told the [petitioner] to get out of the house, and
she reported the rapes to law enforcement. The victim’s mother continued to
communicate with the [petitioner] and recorded their conversations on two
separate occasions, once on the phone and once in person at a park in the
presence of the victim. The tape recordings were admitted into evidence with
redactions. Initially, the [petitioner] admitted raping the victim twice, but the
victim’s mother testified that after the victim listed each incident, the
[petitioner] admitted to each of them.

        At the close of proof at the February 15, 2001 trial, the jury found the
[petitioner] guilty of all five counts of rape as indicted. Following a
sentencing hearing on April 11, 2001, the trial court sentenced the [petitioner]
to eleven years for each count of rape. For sentencing purposes, counts one,
two, and three were grouped together with the sentences running concurrently.
Additionally, counts seven and eight were grouped together with the sentences
running concurrently. The sentences from the two groups were ordered to be
served consecutively for an effective sentence of twenty-two years in the
Department of Correction. The judgment of conviction was entered on April
23, 2001.

        On June 14, 2001, the [petitioner] filed a motion for new trial, which
was denied. No notice of appeal was filed. The [petitioner] filed several
motions in an attempt to determine the status of his appeal. On October 7,
2004, he filed a pro se “Motion to Produce Transcripts/ Records.” He also
filed a pro se Writ of Mandamus on January 24, 2005, alleging that his trial
counsel had falsely represented to him that he had in fact filed an appeal. The
record reflects that in an order dated March 21, 2005, the trial court appointed
post-conviction counsel to represent the [petitioner] and ruled that it would

                                       -3-
       treat the [petitioner]’s motions as a “Motion for Delayed Appeal and/or Post
       Conviction Relief Petition.”[FN1]

       FN1. The record reflects that appointed counsel also filed a separate petition
       for post-conviction relief seeking the delayed appeal of his rape convictions
       based upon trial counsel[’s] . . . failure to do so.

               A post-conviction hearing was held on August 31, 2005, at which the
       [petitioner] asserted that he was mislead to believe that trial counsel had in fact
       filed an appeal. On September 13, 2005, the trial court entered an order
       pursuant to Tennessee Code Annotated section 40-30-113 (2003) which
       provided that “the [petitioner] shall file either an appeal or written waiver of
       appeal within (30) days herefrom.” Relying upon Wallace v. State, 121
       S.W.3d 652 (Tenn. 2003), the trial court concluded that the [petitioner]
       “erroneously believed that trial counsel had filed an appeal and wherefore due
       process requires a tolling of the [one-year] statute of limitations” for
       post-conviction petitions. On September 20, 2005, the [petitioner] filed a
       notice of appeal.

Dorman O’Neal Elmore, Jr. v. State, No. E2005-02263-CCA-R3-PC, 2006 WL 2482949,
at *1-3 (Tenn. Crim. App. at Knoxville, Aug. 29, 2006). On appeal, the petitioner challenged
the sufficiency of the evidence, the admission into evidence of the audiotaped conversations
between the petitioner and the victim’s mother, and his sentencing. This court affirmed the
petitioner’s convictions and sentences, finding that the evidence was sufficient to uphold his
convictions, that he waived the issue of evidentiary error, and that his sentence was
appropriate.

         The present appeal stems from the petitioner’s amended petition for post-conviction
relief, filed on October 16, 2007. The post-conviction court held an evidentiary hearing on
March 20, 2009, at which trial counsel and the petitioner testified.

        On direct examination, trial counsel testified that the trial court appointed him to
represent the petitioner on May 30, 2000. He agreed that the indictment did not list the exact
time and dates of the offenses. He did not file a motion for a bill of particulars because the
district attorney general had an open file policy that enabled him to estimate the possible days
on which the offenses occurred, and he used the locations of the offenses coupled with
estimated days to determine where the petitioner was at the time of each offense. Trial
counsel did not file a notice of alibi. He did not “recall any particular outrage . . . in the
public” over the offenses and did not file for a change of venue. Trial counsel filed a motion
for discovery and testified that the state provided him with everything in its file. He did not

                                               -4-
recall any exculpatory evidence and did not file a motion to compel specific evidence. Trial
counsel did not request funds from the Administrative Office of the Courts for an
investigator. He said that an investigator could possibly have assisted in locating witnesses,
but he did not recall “any witness to the events, other than . . . the [petitioner] and the
victim.” In the course of his investigation of the case, he went to the location of one of the
events, but he did not speak to “any individuals that may have been present. To [his]
knowledge[,] there were no other people present.” He did not investigate the background of
the victim, but he learned through audiotaped conversations between the petitioner and the
victim’s mother that the victim had previously accused an individual of a sexual offense, for
which the individual pled guilty. Trial counsel did not file a Rule 412 motion “to ask the
court to consider allowing the jury to hear proof of [the] victim’s prior sexual conduct.” He
testified that information about her sexual history would have bolstered her credibility
because the individual’s guilty plea substantiated her accusation against him.

       On cross-examination, trial counsel testified that he filed a motion to suppress the
audiotaped conversations because he believed they were “highly prejudicial.”

       The petitioner testified that he did not review the audiotaped conversations with trial
counsel, but counsel provided him with a copy of the audiotape. The petitioner said he could
not hear anything on the copied tape. The petitioner said that he would have liked trial
counsel to investigate the allegations that the victim made against the individual who pled
guilty. He was familiar with the allegations because he accompanied the victim and her
mother to the individual’s parole hearing. The petitioner stated that he believed that trial
counsel did not investigate his case at all. He and his father met with trial counsel at
counsel’s office but did not discuss much. Trial counsel told him there was a plea bargain
available, but at their next meeting, trial counsel said that the state had taken the offer “off
the table.” The petitioner testified that there were inconsistencies at trial regarding the
locations of the offenses. He did not go to the locations with trial counsel or assist trial
counsel in finding witnesses at those locations. The petitioner claimed that the state withheld
exculpatory evidence from him because the audiotaped conversations were originally on five
microcassette tapes that were recorded onto one larger tape. The petitioner testified that he
did not know what specific statements would have been recorded on the microcassette tapes,
but he maintained that he made no admissions of guilt.

         On cross-examination, the petitioner said that trial counsel tried to suppress parts of
the audiotaped conversations but not the conversations in their entirety. He did not have a
file of everything that trial counsel had. On re-direct examination, the petitioner testified that
he had two “sit-down” meetings with trial counsel prior to trial, each approximately twenty
minutes long. He did not receive any written communication about a plea agreement.



                                               -5-
        On April 6, 2009, the post-conviction court filed an order denying post-conviction
relief. The petitioner timely appealed the denial.

                                           Analysis

        On appeal, the petitioner argues that trial counsel provided ineffective assistance.
Specifically, he contends that counsel’s failure to file certain pre-trial motions and notices,
including a notice of alibi, motions for a bill of particulars, funding for an investigator, a
change of venue, and to compel the state to produce exculpatory evidence, fell below an
objective standard of reasonableness. Additionally, he contends that trial counsel’s failure
to investigate and prepare for trial and failure to request that the court allow the jury to hear
evidence of the victim’s sexual history constituted deficient performance. The petitioner
argues that trial counsel’s deficient performance prejudiced the defense. The state responds
that trial counsel provided effective assistance. We agree with the state.

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the factual allegations set forth in his petition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction
court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction
court’s factual findings is de novo with a presumption that the findings are correct. Fields
v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s
legal conclusions and application of law to facts is de novo without a presumption of
correctness. Id.

       To establish ineffective assistance of counsel, the petitioner must show that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004).
Deficient performance is shown if counsel’s conduct fell below an objective standard of
reasonableness under prevailing professional standards. Strickland, 466 U.S. at 688; see also
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that representation should
be within the range of competence demanded of attorneys in criminal cases). Prejudice is
shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the
outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. If either
element of ineffective assistance of counsel has not been established, a court need not
address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996). Also, a fair assessment of counsel’s performance “requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

                                               -6-
Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The
fact that a particular strategy or tactical decision failed does not by itself establish ineffective
assistance of counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy
and tactical decisions only if the decisions are informed ones based upon adequate
preparation. Id. (citations omitted).

        The petitioner presented no proof that counsel’s performance was deficient other than
the conclusory allegations he made in his testimony. Based on trial counsel’s testimony that
he filed pre-trial motions for discovery and suppression of damaging evidence, that he did
not recall damaging publicity, and that the state had an open file policy, coupled with the
post-conviction court’s finding as a matter of fact that there was no exculpatory evidence,
we conclude that counsel’s performance was not deficient when he did not file motions for
a bill of particulars, a change of venue, and to compel the state to produce evidence. The
petitioner failed to present any evidence of an alibi or witnesses who might have testified at
trial. “When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at
the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see
also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). Neither the post-
conviction court nor this court can speculate on what a witness’s testimony might have been
if introduced by counsel. Black, 794 S.W.2d at 757. Additionally, trial counsel testified that
no witnesses were present during the offenses. Trial counsel also testified that he met
numerous times with the state, had all the information that the state had in its files, and went
to at least one location where an offense took place. Therefore, we conclude that the
petitioner failed to show that counsel was deficient in not filing a notice of alibi or a request
for funds to hire an investigator, and he failed to prove that counsel did not properly
investigate or prepare for trial. Finally, trial counsel made a tactical decision not to attempt
to put the victim’s sexual history before the jury because her history tended to bolster her
credibility, and the petitioner has not shown that counsel’s tactical decision was
professionally unreasonable. Furthermore, the petitioner presented no evidence that the
outcome of the proceedings would have been different but for counsel’s errors. We conclude
that the petitioner has not met his burden of proving that trial counsel’s performance was
deficient and prejudicial to the defense. The petitioner is without relief in this matter.

                                           Conclusion

       Based on the foregoing reasons, we affirm the denial of post-conviction relief.




                                                -7-
      ___________________________________
      J.C. McLIN, JUDGE




-8-
