                                                                                        04/25/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs March 21, 2017

           DAVID ANDREW OLIVER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                     No. 106180 Steven Wayne Sword, Judge
                     ___________________________________

                            No. E2016-02244-CCA-R3-PC
                       ___________________________________


The Petitioner, David Andrew Oliver, appeals the denial of his petition for post-
conviction relief in which he challenged his rape of a child conviction and twenty-five
year prison sentence. On appeal, the Petitioner contends that he was denied his right to
the effective assistance of counsel, arguing that trial counsel should have advised him to
testify at trial. We affirm the post-conviction court’s denial of relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, David Andrew Oliver.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charme Allen, District Attorney General; and Rachel Russell,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Petitioner was convicted of rape of child by a Knox County Criminal Court
jury. The trial court sentenced the Petitioner to serve twenty-five years in prison.
                                           Trial

      On direct appeal, this court summarized the underlying facts of the Petitioner’s
conviction, as follows:

       [I]n October 2011, the victim’s aunt and a female cousin were living in a
       small house on Boone Street in Knoxville. One night near Halloween, the
       then twelve-year-old victim spent the night there. The [Petitioner], who
       was dating the victim’s cousin, also spent the night. The victim slept on the
       living room couch but woke to discover the [Petitioner] staring at her. The
       [Petitioner] forced himself on the victim, penetrated her vagina with his
       penis, and ejaculated. About one year later, the victim revealed the incident
       to a counselor and was interviewed at Childhelp. As a result of the
       Childhelp interview, officers with the Knoxville Police Department (KPD)
       began investigating the victim’s allegations and interviewed the
       [Petitioner]. During the [Petitioner’s] interview, he admitted knowing the
       victim and spending the night at the home on Boone Street while the victim
       was there. The officers suggested to the [Petitioner] that the victim became
       pregnant and had a baby, which was not true. The [Petitioner] told the
       officers that he forced the victim to have sex with him, that she tried to
       fight him off, and that he ejaculated. After the interview, the [Petitioner]
       wrote a letter to the victim in which he apologized for hurting her. He also
       wrote that, if she had a baby, he wanted a DNA test to determine if he was
       the father and wanted to see the baby.

State v. David Andrew Oliver, No. E2013-02426-CCA-R3-CD, 2014 WL 12649795, at
*1 (Tenn. Crim. App. Nov. 20, 2014), perm. app. denied (Tenn. Mar. 12, 2015).
Relevant to the issue before this court, the trial court conducted a hearing pursuant to
Momon v. State, 18 S.W.3d 152 (Tenn. 1999). During the hearing, the Petitioner testified
that he and trial counsel discussed several times whether he should testify at trial, his
Fifth Amendment right to remain silent, his ability to fully decide whether to testify, and
the advantages and disadvantages of testifying. The Petitioner decided the following day
on the second day of trial not to testify. On direct appeal, the Petitioner challenged the
trial court’s denial of his motion to suppress his confession and apology and the trial
court’s limitation of his ability to cross-examine the victim. Id. at *1-4.

                                Post-Conviction Hearing

       The Petitioner’s amended petition for post-conviction relief alleged that trial
counsel was ineffective for failing “to strongly advise him that he should testify at trial,
both to explain and rebut the Petitioner’s confession, which was introduced in a recorded
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statement at trial, and to rebut the victim’s testimony.” He contended that “not testifying
on his own behalf left the State’s evidence unchallenged and his own confession
unchallenged by the only person who could have explained or challenged it.”

       At the hearing on post-conviction relief, trial counsel testified that he was not
representing the Petitioner at the time that the Petitioner gave his inculpatory statement to
police, where he admitted that he sexually penetrated the victim. Trial counsel learned of
the statement after the Petitioner told him about it and then obtained a copy through
discovery. Trial counsel stated that he reviewed the statement with the Petitioner “in
great detail.” Trial counsel was provided a copy of the letter of apology that the
Petitioner wrote to the victim and a copy of the victim’s interview with Childhelp. He
explained that he developed a trial strategy to attack the admissibility of the Petitioner’s
statement to the police and the credibility of the victim’s testimony. Trial counsel filed a
motion to suppress the Petitioner’s statement to police but the trial court denied the
motion. He testified that after learning that the Petitioner’s statement would be admitted,
he decided to attack the reliability of the confession by focusing on the circumstances
surrounding the statement, including the Petitioner’s inability to handle being pressured
and the way the confession was elicited. He explained that “there were many features of
the statement’s content that suggested that [the Petitioner] was adopting the questions in
order to formulate his answers.”

       Trial counsel stated that the Petitioner was interested in testifying at trial and that
they discussed the matter extensively for months, including consulting with the
Petitioner’s family about testifying. He also stated that the Petitioner’s reasons for
wanting to testify matched the questions that trial counsel already planned to ask the
interrogating police officers and the victim during cross-examination, explaining that the
Petitioner wanted to testify to the effect that he gave a false statement due to coercion and
a desire to leave the police department. Trial counsel testified that after discussing the
issue with the Petitioner, he did not believe the Petitioner should take the stand at trial
because the Petitioner was unable to deal with confrontational situations very well. Trial
counsel also testified that he was fully prepared to put the Petitioner on the stand in the
event that the Petitioner chose to testify. Trial counsel explained that after the first day of
trial where all of the State’s witnesses testified, including the victim, he did not change
his opinion regarding whether the Petitioner should testify. Trial counsel noted that
following the first day of trial, he met with the Petitioner at the detention facility and
advised the Petitioner to not testify. He stated that the trial court conducted a hearing
pursuant to Momon v. State to ensure that the Petitioner was aware of his right to testify.
Trial counsel testified that, at trial, he cross-examined one of the interrogating police
officers but that there were no other witnesses or potential witnesses that could have
explained the confession except for the Petitioner. He described the Petitioner as “very
intimidated with the idea of testifying” but explained that they worked on his testimony
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in the event he decided to take the stand. Trial counsel acknowledged that the Petitioner
probably relied on his advice and the advice from the Petitioner’s family in making his
decision to not testify.

       On cross-examination, trial counsel testified that he believed the Petitioner would
have a difficult time trying to explain why he confessed and that he was afraid that the
Petitioner’s “testimony would hurt him more than it would help him in the long run.”
Trial counsel also testified that his trial strategy would have remained the same in
hindsight.

       On re-direct examination, trial counsel testified that because the Petitioner had a
prior statutory rape conviction on his record, he was concerned that the Petitioner could
open the door to questioning about the prior conviction during cross-examination by the
State. He stated that after conducting a mock examination of the Petitioner, he did not
believe that the Petitioner’s testimony at trial would have made a good impression on the
jury. Trial counsel did not think that the Petitioner was capable of effectively explaining
why he confessed and apologized to the victim. Trial counsel acknowledged that while
there were no other witnesses that could testify as to the truthfulness of the Petitioner’s
statement and apology, trial counsel identified “particular and isolatable discrepancies
between” the victim’s various statements and testimony and cross-examined the victim
on those discrepancies.

       The Petitioner testified that he discussed trial strategy with trial counsel on
multiple occasions. He also testified that he reviewed some of the recorded interview he
had with police but did not get the opportunity to see a copy of the apology letter that he
wrote. He stated that during the interrogation by police, he felt under pressure, confused,
and frightened. He also stated that one of the interrogating detectives told him that he
could not leave the interrogation room until he wrote an apology letter. He testified that
only after the police informed him that the victim accused him of rape, did he make his
confession. The Petitioner stated that prior to the interrogation, he had been assaulted by
a police officer in the past and that he was afraid of the police. He also stated that one of
the interrogating detectives gestured his hand over to the gun on his hip when the
Petitioner did not “answer his question right away.” He testified that the admissions of
guilt that he provided the detectives were not true. He also testified that he did not
believe he discussed all the details of the interrogation with trial counsel, including that
he was scared during the interrogation.

         The Petitioner stated that he discussed with trial counsel whether he should testify
at trial. He explained that trial counsel informed him that he should not testify because of
his low IQ and tough questioning by the State. The Petitioner testified that he did not
recall going through a mock examination with trial counsel. He also testified that
                                            -4-
ultimately he thought it was best for him to testify so that he could explain why he gave
false statements to the police. He stated he did not stay at his girlfriend’s house with the
victim because it was a bad idea, explaining that he was a registered sex offender and
could not sleep at other people’s houses. He recalled that the trial court advised him that
it was ultimately his decision whether to testify at trial. The Petitioner testified that he
decided to not testify based on trial counsel’s advice to him.

       On cross-examination, the Petitioner testified that trial counsel left him with the
final decision as to whether he should testify. He also testified that in addition to trial
counsel’s advice, he relied on his family’s advice not to testify in his decision-making
process. He stated that if trial counsel had encouraged him, he would have testified at
trial.

        In its order denying post-conviction relief, the post-conviction court found that
trial counsel was effective in advising the Petitioner on his right to testify. The post-
conviction court noted that trial counsel prepared the Petitioner for the possibility of
testifying and tested the Petitioner’s ability to handle the pressure of cross-examination.
The post-conviction court highlighted the Petitioner’s testimony where he admitted that
he did not handle pressure very well. The post-conviction court found that trial counsel’s
advice was based in sound strategy and that trial counsel ultimately left the decision of
whether to testify up to the Petitioner. Finding no deficiency, the post-conviction court
declined to make findings regarding prejudice.

                                       ANALYSIS

       On appeal, the Petitioner argues that trial counsel provided ineffective assistance
by advising him to not testify at trial. The State contends that the Petitioner failed to
prove that trial counsel was deficient. We agree with the State.

       To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103; Howell v.
State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup.
Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)). In an appeal of a court’s decision resolving a petition for post-
conviction relief, the court’s findings of fact “will not be disturbed unless the evidence

                                           -5-
contained in the record preponderates against them.” Frazier v. State, 303 S.W.3d 674,
679 (Tenn. 2010).

        A criminal petitioner has a right to “reasonably effective” assistance of counsel
under both the Sixth Amendment to the United States Constitution and article I, section 9,
of the Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The
right to effective assistance of counsel is inherent in these provisions. Strickland v.
Washington, 466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove
ineffective assistance of counsel, a petitioner must prove both deficient performance and
prejudice to the defense. Strickland, 466 U.S. at 687. Failure to satisfy either prong
results in the denial of relief. Id. at 697.

        For deficient performance, the petitioner must show that “counsel’s representation
fell below an objective standard of reasonableness” under prevailing professional norms,
despite a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 688-89. “In other words, the services rendered
or the advice given must have been below ‘the range of competence demanded of
attorneys in criminal cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). The petitioner must prove that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. When reviewing trial counsel’s performance
for deficiency, this court has held that a “petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, 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). The
reviewing court “must make every effort to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from
the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689). However, “deference to tactical choices only
applies if the choices are informed ones based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       “‘[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.’”
Burns, 6 S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). “[W]hen a petitioner has
given counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later be challenged
as unreasonable.” Strickland, 466 U.S. at 691. “Counsel must conduct appropriate

                                           -6-
investigations, both factual and legal, to determine what matters of defense can be
developed.” Baxter, 523 S.W.2d at 933.

       Prejudice requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. The
Court clarified that prejudice “requires showing that counsel’s errors were so serious as
to deprive the petitioner of a fair trial, a trial whose result is reliable.” Id. at 687. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.

        A claim of ineffective assistance of counsel raises a mixed question of law and
fact. Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court
reviews the trial court’s factual findings de novo with a presumption of correctness,
unless the evidence preponderates against the trial court’s factual findings. Grindstaff,
297 S.W.3d at 216. However, the trial court’s conclusions of law on the claim are
reviewed under a purely de novo standard with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

        At the post-conviction relief hearing, the Petitioner testified that he would have
testified at trial if trial counsel had advised him to do so. The Petitioner contends that by
cross-examining the detective about his tactics during the interrogation of the Petitioner,
trial counsel only allowed the jury to speculate as to why the Petitioner would have
falsely confessed instead of affording the Petitioner the opportunity to give reasons for
his incriminating remarks. Trial counsel’s advice to the Petitioner came after consulting
with his family, preparing him to testify, considering his inability to handle pressure,
developing alternative strategies to elicit similar testimony, and discussing the
Petitioner’s right to testify with him. “‘[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable….’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011) (quoting
Strickland, 466 U.S. at 690)). Even if we were to assume trial counsel should have
advised the Petitioner to testify, “[t]he fact that a particular strategy or tactical decision
failed does not by itself establish deficiency.” Felts, 354 S.W.3d at 277 (citing Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        Ultimately, the Petitioner acknowledged that he was aware that he was responsible
for deciding whether to testify. Momon, 18 S.W.3d at 162 (“the defendant has the right
to testify and that if the defendant wishes to exercise that right, no one can prevent
the defendant from testifying”). At trial and during a Momon inquiry, the Petitioner
                                            -7-
acknowledged that he had the right to testify, that it was his decision whether to testify,
and that trial counsel discussed with him the advantages and disadvantages of testifying.
Being satisfied that the Petitioner was informed of his right to testify, the trial court
accepted the Petitioner’s decision to not testify. The post-conviction court found that the
Petitioner chose not to testify, followed the advice of his family and trial counsel, and
never indicated that he wanted to testify. We find nothing in the record to suggest that
trial counsel’s advice to the Petitioner rises to the level of deficient performance.
Accordingly, the Petitioner is not entitled to post-conviction relief.

                                    CONCLUSION


         Based on the foregoing analysis, we affirm the judgment of the post-conviction
court.




                                             ____________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




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