         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs October 7, 2008

                    R. L. WILLIAMS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                           No. 2002-B-1093    Steve Dozier, Judge



                    No. M2007-02328-CCA-R3-PC - Filed January 6, 2009


The petitioner, R. L. Williams, appeals from the denial of his 2007 petition for post-conviction relief,
which challenged his 2003 rape convictions. He asserts that he was denied the effective assistance
of counsel at trial because trial counsel failed to effectively challenge the DNA evidence, which he
posits was the only convicting evidence because the testimony of the victim was unreliable. Holding
that he has failed to establish that his counsel was ineffective, we affirm the judgment of the post-
conviction court.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR.,
and CAMILLE R. MCMULLEN , JJ., joined.

Patrick G. Frogge, Nashville, Tennessee, for the appellant, R. L. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Brian Holmgren and Katherine Scarminach,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                A Davidson County Criminal Court jury convicted the petitioner of one count of rape
by force and one count of rape without consent. The trial court sentenced the defendant to 12 years’
imprisonment for each conviction and ordered that the sentences be served concurrently. See State
v. R. L. Williams, No. M2004-02075-CCA-MR3-CD, slip op. at 3 (Tenn. Crim. App., Nashville,
Dec. 16, 2005), perm. app. denied (Tenn. 2006). The petitioner filed a timely appeal to this court,
and we affirmed the petitioner’s conviction for the first count of rape and the accompanying 12-year
sentence, but we “remanded to the trial court with instruction to enter corrected judgment forms
which reflect that the [petitioner’s] conviction in Count 2 is merged with his conviction for forcible
rape under Count 1.” Id., slip op. at 4, 7. Following the denial of his application for permission to
appeal to our supreme court on May 1, 2006, the petitioner filed a timely petition for post-conviction
relief, alleging ineffective assistance of counsel.

                The evidence, as summarized by this court on direct appeal, established that the
Tennessee Department of Children’s Services (“DCS”) placed the victim, L.S.1, in the foster care
of the petitioner and his wife in 1987. Id., slip op. at 2. On November 30, 1999, the victim had left
work in order to watch over the petitioner’s one-year-old biological daughter because the petitioner’s
wife had hurt her neck and had to go to the hospital. Id. The petitioner arrived at the house at
approximately 9:00 p.m., and he went to the living room to watch television with the victim and his
biological daughter. Id. A program on the television made the victim “uncomfortable,” and she
“removed the little girl from the room and started playing with her in the hallway.” Id. The evidence
showed,

                        As the victim was bent over playing with the child, the [petitioner]
                        grabbed her from behind and wrapped his leg around her to prevent
                        her from moving. Despite her requests and pleas to stop, the
                        [petitioner] pulled down the victim’s pants and penetrated her
                        vaginally with his penis. Afterwards, the victim locked herself in the
                        bathroom. When she emerged she found the [petitioner] waiting for
                        her. He asked her if she needed anything and told her that no one
                        would believe her if she told what had happened.

Id.

                The victim testified that she was unable to tell the petitioner’s wife about the incident
because the petitioner was always present. Id. At school, she discussed the matter with her
biological sister, who also lived under the petitioner’s foster care, and “the sister became upset and
began to make a scene in the classroom. At that point, the victim stated she told her sister that it
never happened.” Id. A teacher noticed that the victim “was visibly upset and began questioning
her.” Id. The victim then told the teacher what had happened, and “a school police officer took the
victim to the hospital for an examination.” Id.

                 At the hospital, a forensic examination showed the presence of spermatozoa. Id. The
victim was removed from the petitioner’s foster care and moved to “a group care facility for
juveniles with problems, because no other foster care could be found.” Id. She testified that “she
felt like a prisoner . . . in addition to being separated from her family and friends.” Id. The victim
called the petitioner’s sister-in-law “who told her that if she cleared up the situation, she could return
to the [petitioner’s] home.” Id. Because of this conversation, the victim wrote a letter to DCS
“claiming that the events had never occurred, that she had just dreamed it.” Id. At trial, the victim
“maintained that she was raped by the [petitioner].” Id.


            1
                It is the policy of this court to identify victims of sex abuse by their initials in order to protect the victim’s
identity.

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                A forensic analysis of the deoxyribonucleic acid (“DNA”) from the spermatozoa
found in the victim’s vagina showed that five of the 13 “locations” examined and the “gender marker
for a DNA profile” matched the petitioner’s DNA profile. Id., slip op. at 3, n.2. The evidence
established that “the probability of the sperm being from another African American other than the
[petitioner] was 1/3,517,000, from a Caucasian person other than the [petitioner] was 1/10,790,000,
from a Southeastern Hispanic other than the [petitioner] was 1/3,812,000, and from a Southwestern
Hispanic was 1/5,552,000.” Id., slip op. at 3. The petitioner is an African American. Id., slip op.
at 6, n.3.

               The petitioner chose not to testify and presented no defense proof.

                The petitioner filed a timely petition for post-conviction relief on May 1, 2007,
alleging ineffective assistance of counsel. The petitioner argues that his trial counsel “was
constitutionally deficient, and that deficient performance was prejudicial.” He alleged as
deficiencies: (1) that counsel failed to file a motion to suppress the “unconstitutional seizure” of the
petitioner’s DNA; (2) that counsel failed to “effectively challenge” the DNA evidence by failing to
challenge its veracity, by failing to challenge the method of testing and comparing DNA according
to McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997), and by failing to challenge
the evidentiary chain of custody; (3) that counsel failed to investigate the victim’s background; (4)
that counsel “was ineffective where he failed to offer any proof of L.S.’s numerous recantations at
trial”; and (5) that the “cumulative effects” of counsel’s errors denied the petitioner effective
assistance of counsel.

                In the August 2, 2007 evidentiary hearing, the petitioner first called Joe Minor,
Tennessee Bureau of Investigation special agent scientist supervisor. Agent Minor evaluated the
DNA evidence that eventually resulted in the petitioner’s conviction. He testified that he examined
a “blood standard” from both the petitioner and the victim and the vaginal swabs that were submitted
to the laboratory from the sexual assault kit performed on the victim.

                Agent Minor testified that he placed a portion of the vaginal swab into a chemical that
performed an “extraction procedure” that extracted the DNA. He testified that the TBI laboratory
had used the same DNA procedures since 1998. He stated that the “ideal” sample of DNA was one
nanogram, or “a billioneth [sic] of a gram.” Agent Minor, however, had tested amounts less than
one nanogram. He said, “[T]here is [sic] some circumstances where we might think that the
quantitation [sic] may not be accurate enough and, then, we’ll proceed with testing that.” He stated
that the “cutoff” in which he would not perform tests on a DNA sample was “zero,” meaning no
detectable amount of DNA.

                Agent Minor testified that, in this case “we separated the sperm DNA from the female
DNA . . . the sperm DNA concentrated at point zero six two nanograms.” He stated that he then
“amplified” the .062 nanogram sample using “a technique called PCR amplifying chain reaction”
and that this procedure had “been in effect for many years.” He testified, “[T]he PCR procedure
targets specifics [sic] locations and amplifies, or replicates, the DNA which allows us to . . .


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subsequently analyze that on a three ten genetic analyzer, an instrument that produces DNA types.”
The 310 genetic analyzer is a “capillary electrophoresis device” that Agent Minor used “to separate
those short tandem repeat fragments . . . by size,” and the instrument used software to aid in
“measuring those fragments links.” Agent Minor testified, “The policy of the TBI [], though, is to
use the [software] and actually go in and look at the raw data and, you know, verify that the types
are there and artifacts or anything can be accounted for. So, we don’t rely totally on that [software].”

                 Agent Minor testified that DNA readings can be affected by “artifacts,” which include
“spikes . . . due to products in the polymer . . . that’s injected inside the capillary” and “stutter
peaks.” He said, “An artifact is something that should be accountable for. If you cannot account
for an artifact and you’re gonna take that sample and reamplify it and re-run it.” He agreed that any
contamination in the DNA sample would be amplified by the amplification process; however, the
TBI laboratory had procedures and policies in effect to protect against such contamination. He
further testified that, to his knowledge, the TBI laboratory had never committed any errors in DNA
analysis that led to an incorrect identification.

                 Agent Minor explained, “There are thirteen loci that are standard amongst the DNA
labs. And, those fragment links that are found, short tandem repeats, that are found in those
locations have been analyzed by statistical methods, which will allow you to make a statistical
analysis of particular types of loci.” He explained that, the greater number the of matching loci, the
more likely that the DNA belongs to an individual. He testified that, in this case, the defendant’s
DNA matched five loci of the DNA found from the vaginal swab of the victim and that the
possibility that the offender was an African American other than the defendant was one in 3,500,000.
To arrive at this statistic he used the “product rule” which is a “well founded mathmatical [sic]
procedure.” He stated that his results did not “factor[] any potential error” because “that’s not part
of the rule.” He testified that he was not familiar with any “rate of error” in short tandem repeat
DNA testing. Agent Minor also stated that “in order to enter a profile into the [Federal Bureau of
Investigation’s] national data base, there is a requirement to have attempted to type all the thirteen
loci that are available, a minimum requirement of submitting ten on line.” He admitted that the
DNA profile used to convict the petitioner would not qualify for entry into the Federal Bureau of
Investigation’s database.

                On cross-examination, Agent Minor testified that, although .062 nanograms is a small
amount of DNA, he has “typed” smaller amounts. He stated that he asked a second agent to perform
the DNA analysis, and the second agent arrived at the same conclusion. He agreed there was no
reason that he “would exclude the petitioner in this case” because his DNA profile showed five loci
matches with the DNA found in the sexual assault kit. He stated that “[t]hese were very reliable
results.”

                Counsel testified that he was retained by the petitioner’s family and that he
represented the defendant in October 2003. Counsel had practiced law for 25 years and participated
in 10 rape trials at the time of the petitioner’s trial. He stated that he did not hire a private
investigator in this case; however, he had a friend who was an investigator who might have “chased


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a couple of rabbits for [him]” on this case. He recalled that “[t]he key evidence was that they found
[the petitioner’s] DNA in the young lady’s vagina.”

                 Counsel recalled that the victim had recanted her original statements that the
petitioner raped her; however, he stated that the victim later “recanted [her] recantation” and again
maintained that she was raped. Although he did not have an independent recollection of a letter
written by the victim stating that the rape never occurred, he “[felt] that [he] would have” introduced
the letter into evidence during the trial.

                Counsel stated that he wanted to pursue a theory of the case where “what had
happened was that the [victim] had turned eighteen. She knew she was about to lose her home
because she was no longer eligible to be a foster child. And if perhaps she had enticed . . . [the
petitioner] into having sex with her thinking maybe I can, you know, can stay here. And, when that
didn’t happen, then all of a sudden it became rape.” He wanted to pursue this theory of the case
because he “always thought . . . [the victim’s] story varied a little bit and didn’t make sense.”
However, the petitioner maintained that “it never happened under any circumstances and he never
had sex with her,” and counsel adopted the petitioner’s theory.

                Counsel testified that, because he could not discount the DNA evidence under the
petitioner’s theory, he was “kind of in a corner.” He explained that maintaining that the petitioner
never had sex with the victim, despite the fact that his DNA was identified in her vagina, “was the
most awkward defense to try to go with, given the State’s proof.” Counsel testified that he filed an
ex parte motion with the trial court to hire an independent expert to perform an independent test of
the DNA sample. The trial court granted his motion, and the independent expert “came to the same
conclusion, that the sample matched the DNA of [the petitioner].” Counsel did not file a suppression
motion alleging that the petitioner’s sample DNA, used by the TBI to compare with the DNA in the
vaginal swab, was taken through an unconstitutional seizure because “had [he] objected to the initial
sample that was taken, the State would have simply turned around and gotten a search warrant and
gotten a sample. We would have been right back to square one.”

                The post-conviction court, in a written order, denied the petitioner’s request for post-
conviction relief. As for petitioner’s claim that counsel was deficient in failing to file a motion to
suppress, the post-conviction court noted, “Petitioner did not make the search warrant an exhibit in
this case; therefore the Court cannot review the issue in terms of the prejudice this issue may have
caused.” The post-conviction court found unavailing petitioner’s claim that counsel “failed to
challenge effectively the DNA evidence.” The post-conviction court noted that counsel had the
DNA evidence independently tested and that counsel “made a strategic decision not to challenge the
veracity of the evidence” because it would be difficult for counsel “to present a persuasive witness
to challenge what [the petitioner’s] own expert had concluded.” The post-conviction court also
found that the petitioner did not present evidence to support his claims that counsel was deficient
in failing to challenge the method of DNA testing and the chain of custody of the DNA samples.




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                The post-conviction court further found that counsel did not perform deficiently by
failing to investigate the victim’s background because “counsel felt the DNA evidence was
overwhelming and made a tactical decision not to irritate the jury by berating the victim about her
background when he did not have an explanation for the DNA evidence.” Because the evidence
indicated that counsel both introduced the letter to DCS with the victim’s recantation and cross-
examined her regarding her recantations, the post-conviction court dismissed the petitioner’s issue
claiming that counsel was ineffective in offering proof of the victim’s recantations.

                The petitioner filed a timely notice of appeal, and he presents as his sole issue
“[w]hether Trial Counsel was ineffective for failing to challenge the most crucial piece of evidence
against his client where the method of testing that evidence was questionable.”

               The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By
contrast, the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

               When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given were below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). The error
must be so serious as to render an unreliable result. Id. at 687, 104 S. Ct. at 2064. It is not
necessary, however, that absent the deficiency, the trial would have resulted in an acquittal. Id. at
695, 104 S. Ct. at 2068. Should the petitioner fail to establish either factor, he is not entitled to
relief. Our supreme court described the standard of review as follows:

                               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 defendant makes an insufficient
               showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

               On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of


                                                -6-
counsel, however, applies only if the choices are made after adequate preparation for the case.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               Claims of ineffective assistance of counsel are regarded as mixed questions of law
and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given no
presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762,
766 (Tenn. 2000).

                The petitioner notes that Code section 24-7-118(b)(2) provides that, with regard to
DNA evidence, “parties are . . . allowed to challenge a particular DNA test through competing
experts, cross-examination, and the like,” and he argues that counsel “only briefly cross-examined
the State’s DNA expert, and then only regarding probabilities” and that he “did not challenge the
protocols, testing methods, or otherwise challenge the State’s findings.” The petitioner contends that
such failure amounted to ineffective assistance of counsel. We disagree.

               First, the record clearly indicates that counsel sought independent DNA analysis
through an ex parte motion for expert assistance. Counsel convinced the trial court that an
independent analysis of the DNA was needed, and he had the DNA sample independently tested.
Clearly, counsel sufficiently “challenged” the DNA evidence. We cannot find that counsel was
ineffective simply because his independent expert agreed with the TBI analysis that the DNA
matched the petitioner’s. Although the petitioner argues that five matching loci is not sufficient to
be recognized by the Federal Bureau of Investigation’s national database, he cannot contest that “the
probability of the sperm being from another African American other than the [petitioner] was
1/3,517,000.”

                   The petitioner also stresses the fact that, although Agent Minor explained that one
nanogram was the “ideal” DNA sample, the sample analyzed in this case was only .062 nanograms.
The petitioner contends that “[w]hile this number alone might sound meaningless, the State’s expert
testified that it represented about one-twentieth of the size that was optimal to test.” However, Agent
Minor also testified that he had successfully tested and processed smaller samples of DNA, that the
TBI laboratory had no record of false identifications, and that he considered the results to be “very
reliable.”

               We find that the petitioner has not shown either prong of the Strickland analysis by
clear and convincing evidence, and, therefore, we affirm the post-conviction court’s denial of his
petition. Nothing in the evidence or petitioner’s brief suggests that counsel’s performance was
below “the range of competence demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at
936. Counsel attempted to use an independent expert to challenge the DNA, and, as the post-
conviction court noted, we will not upset counsel’s tactical decision not to attack the State’s analysis
of the DNA evidence when his own expert arrived at the same conclusions. Furthermore, even if
counsel’s performance was somehow deficient, we cannot say that such deficiencies adversely


                                                  -7-
affected the litigation. Agent Minor convincingly explained how he satisfactorily analyzed a small
amount of DNA through amplification, and he testified that the results were “very reliable.” In the
post-conviction hearing, the petitioner failed to contradict by evidence Agent Minor’s testimony.
As the petitioner acknowledges in his brief “‘the PCR method of DNA analysis [is] an inherently
trustworthy and reliable method of identification.’” See State v. Begley, 956 S.W.2d 471, 477 (Tenn.
1997). We cannot find that, had counsel made the arguments put forth by the petitioner, he would
have been able to overcome this “presumption of reliability” and materially affect the petitioner’s
defense.

                                            Conclusion

               Because petitioner cannot show that counsel performed below the range of
competence demanded of attorneys in criminal cases or that any deficient performance by counsel
materially affected his defense, we affirm the judgment of the post-conviction court.


                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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