           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                          October 7, 2003 Session

                         JAMES WEBB v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Haywood County
                            No. 2190 Jon Kerry Blackwood, Judge



                      No. W2003-00702-CCA-R3-CD - Filed February 9, 2004


The petitioner, James Webb, was convicted of aggravated rape and sentenced to eighteen years
incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-
conviction relief, alleging that he received the ineffective assistance of counsel. The post-conviction
court denied the petition, and the petitioner timely appealed. Upon review of the record and the
parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.
and JOHN EVERETT WILLIAMS, JJ., joined.

Shannon A. Jones, Alamo, Tennessee, for the appellant, James Webb.

Michael E. Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; Garry G.
Brown, District Attorney General; and Elaine Todd, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                                     OPINION

                                            I. Factual Background

         On January 13, 1995, the petitioner was convicted of the aggravated rape of his daughter,
SW,1 and the trial court sentenced the appellant as a standard Range I offender to eighteen years
incarceration. The petitioner appealed his conviction to this court and we affirmed the judgment of
the trial court. See State v. James Webb, No. 02C01-9512-CC-00383, 1997 WL 80971, at *1 (Tenn.
Crim. App. at Jackson, Feb. 27, 1997). We take the following facts from our opinion on direct
appeal:


       1
           This court does not use the names of sexual abuse victims and instead refers to the victims by their initials.
                The proof at trial established that the [petitioner] committed the
                offense of aggravated rape in 1982. At the time of the offense, the
                victim, SW, was approximately eleven years old. On May 2, 1994,
                roughly twelve years later, the [petitioner] was indicted for a single
                count of aggravated rape.

                ....

                The [petitioner’s] case proceeded to trial on January 13, 1995. At
                trial, SW recounted that, in 1982, en route to a grocery store, her
                father took her to a field and, in his truck, forcibly engaged in sexual
                intercourse with her. According to the victim, the [petitioner]
                continued to engage in intercourse with his daughter on “a regular
                basis” until she was eighteen.

                ....

                [Additionally,] defense counsel and the State stipulated to the
                admissibility of several statements by the victim’s mother to DHS
                personnel. The State introduced an excerpt from an interview of the
                victim’s mother by DHS on August 16, 1994. The [petitioner]
                introduced an excerpt from an earlier interview that occurred on
                March 16, 1986[, after the victim first accused the petitioner of
                molesting her]. The victim’s mother did not testify at trial. [SW]
                testified that, at the time of the trial, her mother was “supposed to be
                in Mississippi, but other than that [she didn’t] really know.”

Id. at **1-2 (footnotes omitted).

         Subsequently, the petitioner filed for post-conviction relief, alleging that he received the
ineffective assistance of counsel. Specifically, the petitioner claimed that he “received ineffective
assistance of counsel for counsel’s failure to present evidence of motive for victim to be biased
against [the petitioner], failure to require [a] witness[, the victim’s mother,] to testify at trial, and
failure to file a motion for election of offenses.”

        Initially, the post-conviction court summarily dismissed the petition. However, on appeal,
this court reversed the summary dismissal and remanded to the post-conviction court for an
evidentiary hearing. See James Webb v. State, W1998-00047-CCA-R3-PC, 2000 WL 279938, at
*1 (Tenn. Crim. App. at Jackson, Mar. 3, 2000). On remand, the post-conviction court appointed
counsel to represent the petitioner and an evidentiary hearing on the petitioner’s claim of ineffective
assistance was held.




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        At the post-conviction hearing, the petitioner testified that he believed his trial counsel should
have presented proof of the victim’s motive for making the allegations of abuse. The petitioner
stated, “My older daughter[, the victim,] had my younger daughter out there at a drug bust. . . .
When I stopped it and we had conflict is when all this come up.” In other words, the petitioner
contended that familial tension relating to the “drug bust” led the victim to make the allegations
against him.

         The petitioner also complained that trial counsel erred because his ex-wife, Patricia Webb
Jones, the victim’s mother, “was not required to testify in person at the trial.” The petitioner stated
that instead of Jones’ testimony, a “written note” by Jones was presented to the jury because she was
“out of town.” The petitioner claimed that Jones could have testified that “this allegation had been
brought up before” in 1986. In addition, Jones could have testified as to the victim’s motive for
making the allegations against the petitioner and would have confirmed that the victim was
“rebellant [sic].” The petitioner further alleged, “Well, it’s just so many things that went down, you
know, that [Jones] could – you get her on the stand you could’ve got ’em out of [her], you know.”
However, on cross-examination, the petitioner stated that he did not know how he was damaged as
a result of Jones’ failure to testify.

        The petitioner acknowledged that he and Jones were divorced at the time of trial. The
petitioner opined that the divorce was “pretty ugly.” Additionally, the petitioner admitted that at the
time of trial, he was facing an allegation that he had molested his younger daughter and Jones was
aware of this allegation.

         The petitioner then called Patricia Ann Jones to testify at the post-conviction hearing. Jones
explained that she had remarried after her divorce from the petitioner and was in Texas at the time
of the petitioner’s trial. Jones maintained that she was never interviewed in preparation for possibly
testifying at trial. However, she had given statements to the Department of Human Services (DHS).
In her statements, Jones stated that she was not aware that the petitioner was molesting the victim
until the victim told Jones’ sister. Jones’ sister then informed her of the allegations. Jones related
that she had witnessed only one incident of suspicious activity. Jones explained that she had once
seen the petitioner coming out of the victim’s bedroom with his pants unzipped, but the petitioner
had denied any wrongdoing.

        Jones testified that she and the petitioner got an “agreement divorce” because “[w]e was
fighting all the time.” She denied that the divorce was “ugly.” She further denied that she was aware
of an allegation that petitioner was molesting his younger daughter.

         Next, trial counsel testified at the post-conviction hearing. Counsel stated that he and the
petitioner discussed calling Jones to testify at trial. The petitioner told trial counsel that he and Jones
had gone through a “very ugly divorce.” Accordingly, trial counsel was very reluctant to ask Jones
to testify, fearing that she might change her testimony on the stand. Trial counsel explained, “I do
a lot of domestic work and as a rule ex-spouses don’t care much about their other ex-spouses when
– and, frankly, I hate to put it this way, but you really can’t trust a lot of times what someone might


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tell the lawyer.” Trial counsel maintained that during trial “we were walking a real fine line”;
therefore, he was unwilling to risk having Jones testify.

       Trial counsel testified that, as a tactical decision, he agreed to the use of Jones’ statements.
He believed the statements tended to “exculpate” the petitioner and discredit the testimony of the
victim. Also, Jones’ statements to DHS “were controlled in the sense we knew exactly what was
said.”

         Additionally, trial counsel explained that “my understanding was the ex-wife knew of the
other case” involving the petitioner’s younger daughter. Therefore, trial counsel did not want to
question Jones regarding the victim’s motive because he feared Jones would testify that the abuse of
the victim’s younger sister was the motive for the allegations. Trial counsel maintained that any
evidence regarding the charges that the petitioner molested his younger daughter “would’ve been
devastating to the case if it had come out in any way, shape or form.” In fact, trial counsel insisted
that he made a strategic decision not to pursue motive evidence because of his concern that the victim
would testify that she made the allegations after learning that the petitioner “was abusing her younger
sister.”

       Trial counsel admitted that during the victim’s testimony she referred to other instances of
abuse by the petitioner. Regardless, trial counsel failed to file a motion to require the State to elect
offenses. Trial counsel stated, “I’ve got no recollection of why I did or did not [move for election].”
He noted that the victim’s references to other instances were “general” and “vague,” and that may
have been why he did not move for election. Trial counsel contended, “It was a tactical decision I
made at the time.”

        At the conclusion of the hearing, the post-conviction court denied the petitioner’s claim for
post-conviction relief, finding that trial counsel’s decisions were the result of trial strategy.
Additionally, the post-conviction court found that the petitioner had failed to establish that he was
prejudiced by any of the alleged errors of counsel. Finally, regarding the election issue, the post-
conviction court noted, “As addressed by the Court of Appeals, the matter would have been harmless
in any respect.” The petitioner appealed this ruling.

                                                  II. Analysis

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. See Tenn. Code Ann. 40-35-210(f) (1997).2
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved by the


        2
           Since the post-conviction hearing in the instant case, this provision has been codified at Tennessee Code
Annotated section 40-30-110(f) (2003).

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post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
Therefore, we afford the post-conviction court’s findings of fact the weight of a jury verdict, with
such findings being conclusive on appeal absent a showing that the evidence in the record
preponderates against those findings. Id. at 578.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to a de novo review. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the
post-conviction court’s findings of fact are entitled to a presumption of correctness unless the
evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
However, a post-conviction court’s conclusions of law, such as whether counsel’s performance was
deficient or whether that deficiency was prejudicial, are subject to a purely de novo review with no
presumption of correctness. Id.

        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)). Because 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 a sufficient showing
of one component. Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. See Strickland, 466 U.S.
at 687-688, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that
counsel’s performance was not within “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;
see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

        First, the petitioner argues that he was prejudiced by counsel’s failure to present proof that the
“drug bust” was the motive for the victim’s allegations. The petitioner acknowledged that the victim
was aware of accusations that he was abusing his younger daughter at the time she made her
allegations of abuse against the petitioner. Trial counsel repeatedly maintained that he did not pursue
motive evidence because he did not want to “open the door” to any evidence concerning the
allegations about the petitioner abusing his younger daughter. Trial counsel stated that he believed
the victim and Jones would have testified that the victim made allegations against the petitioner after
learning of the petitioner’s abuse of the victim’s younger sister. We agree with the post-conviction
court that trial counsel’s decision was attributable to reasonable trial strategy. On appeal, this court
may not second-guess the tactical or strategic choices of counsel unless those choices are based upon



                                                   -5-
inadequate preparation, nor may we measure counsel’s behavior by “20-20 hindsight.” See State v.
Hellard, 629 S.W.2d 4, 9 (Tenn. 1982).

          The petitioner also argues that trial counsel was ineffective in failing to require Jones to testify
at trial. Trial counsel explained that he thought Jones would be a “loose cannon” on the stand because
of her tumultuous divorce from the petitioner. However, trial counsel believed that her statements
were “controlled” and tended to “exculpate” the petitioner. Again, we conclude that trial counsel’s
decision was the result of sound trial strategy.

         Finally, the petitioner complains that trial counsel erred by failing to compel the State to elect
offenses. As we earlier noted, trial counsel testified that he could not recall why he did not move for
an election of offenses. The post-conviction court found, “It was part of the trial counsel’s strategy
in this case to limit this matter to this one matter and not bring up any other matters.” Regardless of
the post-conviction court’s reasoning, we conclude that trial counsel’s testimony that he could not
recall why he failed to move for election was inconclusive.

       However, as the post-conviction court noted, this issue was previously addressed by this court
on direct appeal. Concerning this issue, this court stated:

                [I]n this case, although the victim alluded to numerous incidents of
                sexual abuse occurring within the indicted period, the State failed to
                elect the offense upon which it would proceed, and the trial court
                failed to give an augmented instruction to the jury. . . . [B]ecause “the
                requirement of election is fundamental, immediately touching on the
                constitutional rights of the accused,” we address the merits of this
                issue. . . .


                [I]n the instant case, we conclude that the State’s failure to elect and
                the trial court’s failure to give an augmented instruction did not
                constitute reversible constitutional trial error, because, absent any
                additional evidence, it can be concluded beyond a reasonable doubt
                that the verdict was unanimous as to the incident of rape en route to
                the grocery store in 1982. During its opening statement, the State only
                alluded to this incident. The State’s closing argument is not included
                in the record, yet, during the course of the trial, the only incident
                described in any detail by the victim was the 1982 rape. The victim
                made only vague and brief reference to the other incidents. Finally, in
                announcing the jury’s verdict to the trial court, the jury foreperson,
                Louise Southern, spontaneously remarked, “Your Honor, it was all
                unanimous.”

Webb, No. 02C01-9512-CC-00383, 1997 WL 80971, at ** 9-10 (footnotes omitted).


                                                     -6-
        “A matter previously determined is not a proper subject for post-conviction relief.” Forrest
v. State, 535 S.W.2d 166, 167 (Tenn. Crim. App. 1976). Accordingly, because we have previously
determined this issue, we will not now reconsider our decision. See Cole v. State, 798 S.W.2d 261,
264-65 (Tenn. Crim. App. 1990). Moreover, because this court previously determined that trial
counsel’s failure to move for an election of offenses was at most harmless error, the petitioner has
failed to demonstrate any prejudice he suffered as the result of counsel’s failure.

                                         III. Conclusion

       Therefore, we affirm the judgment of the post-conviction court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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