         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 16, 2008 Session

           HOMER ALSON MADDIN, III v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                           No. 2003-A-393    Steve Dozier, Judge



                    No. M2007-02708-CCA-R3-PC - Filed October 27, 2008


The petitioner, Homer Alson Maddin, III, appeals the Davidson County Criminal Court’s dismissal
of his 2007 petition for post-conviction relief in which he had challenged his four 2004 jury-imposed
convictions of aggravated rape. This court affirmed the convictions on November 1, 2005. See State
v. Homer Alson Maddin, III, No. M2004-02298-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov.
1, 2005), perm. app. denied (Tenn. 2006). The petitioner’s counseled petition raised various claims
of the ineffective assistance of trial and appellate counsel. On appeal, the petitioner claims that his
trial counsel was ineffective in neither communicating with the petitioner nor preparing him for trial,
failing to explain the potential punishment the petitioner faced, failing to communicate a plea offer
from the State, failing to investigate the case, failing to adequately cross-examine witnesses, failing
to properly impeach State witnesses, and failing to object to improper prosecutorial argument and
to the use of certain evidence. The petitioner also claims that his appellate counsel was ineffective
in failing to raise certain issues on appeal. We affirm the order 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 ROBERT W. WEDEMEYER
and J.C. MCLIN , JJ., joined.

Brett M. Gipson, Nashville, Tennessee, for the appellee, Homer Alson Maddin, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Amy Eisenbeck, Assistant District
Attorney General, for the appellant, State of Tennessee.

                                             OPINION

                The facts underlying the petitioner’s convictions were reviewed by this court in the
petitioner’s direct appeal. The evidence at trial showed that the victim, who was 19 years old at the
time of the offenses, had known the petitioner for a long time and had dated him briefly in the past.
The victim called the petitioner and asked him to help her get some “pills.” Homer Alson Maddin,
III, slip op. at 2. To accomplish this, the victim followed the petitioner to his father’s house, where
the petitioner made some telephone calls to locate drugs. Ultimately, the victim took the petitioner
to his mother’s house. Id., slip op. at 2.

                                According to the victim, once they entered the
               apartment, the [petitioner] had a brief argument with his mother, then
               ushered the victim into a bedroom and left her alone. When the
               [petitioner] returned to the bedroom, he “closed the door and got
               extremely close,” trying to kiss her and asking her to have sex with
               him. The victim testified that she refused and reminded the
               [petitioner] that she had a boyfriend. The victim claimed that she
               tried to leave, and the [petitioner] threw her on the bed, put a knife to
               her throat and told her “not [to] make any noises” because she did not
               “wanna get hurt.”

                               The victim explained that the [petitioner] then
               removed her shorts, “used his tongue” on her “private area” then
               forced her to “have sex with him.” The victim testified that she was
               “silently crying the whole time” and begged him to leave. When the
               [petitioner] was finished, the victim put back on her shorts and got
               ready to leave. The [petitioner] then forced the victim to perform oral
               sex on him. After complying for a few seconds, the [petitioner] then
               penetrated the victim’s vagina with his fingers and forced her to
               “have sex with him again.” The victim testified that the [petitioner]
               ejaculated on both occasions and that the [petitioner] had a knife in
               his hand the entire time.

                                The [petitioner’s] version of the facts differed
               significantly from that offered by the victim. The [petitioner]
               maintained that the victim telephoned him looking for pills. The
               [petitioner] proposed that they meet at a local cinema so that the
               victim could follow him to his father’s house. The victim . . . met the
               [petitioner] and followed him to his father’s house. Once at the
               house, the [petitioner] made several phone calls, trying to locate some
               pills for the victim. According to the [petitioner], the victim offered
               him sex in exchange for pills. The three then left the party to go to
               the home of the [petitioner’s] uncle to try to find drugs. Having no
               success, the three went to another location, again attempting to find
               pills or marijuana.

                                The [petitioner] testified that during the . . . search[]
               for drugs, the victim was “hugging” on the [petitioner] and repeatedly
               offered to have sex with him if he could get her some pills. After


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                 visiting several locations trying to find pills, [they] returned to the
                 [petitioner’s] father’s house to make more phone calls. The
                 [petitioner] claims that, at that time, the victim asked his father for
                 pills and also offered him sex in exchange for drugs. In response to
                 the actions of the victim, the [petitioner] testified that his niece, Julie
                 Maddin, got into an argument with the victim and pushed her down,
                 causing the victim to bleed from the neck and elbow.

                                 After the altercation, the [petitioner] . . . asked the
                 victim to take him back to his mother’s apartment. When they
                 arrived, the [petitioner] claimed that the victim came into the house
                 with him and again offered to sleep with him if he could get her some
                 pills. According to the [petitioner], the victim began “rubbing” on his
                 leg and then “worked her way down” and “started rubbing” on his
                 penis. The [petitioner] claimed that the victim unbuckled his pants,
                 rubbed his penis and took off her clothes. The [petitioner] claimed
                 that the victim was not only a willing participant, but also the
                 aggressor during the encounter. The [petitioner] admitted that he and
                 the victim had sex and that he ejaculated on the bed, then the victim
                 asked him to roll over so that she could “get on top.” At that point,
                 the [petitioner] stated that he and the victim had sex for a second time
                 and he ejaculated again on the bed. The [petitioner] claimed that the
                 victim wanted to have sex for a third time, but the [petitioner] told her
                 she could give him a “blow job.” According to the [petitioner], the
                 victim willingly complied.

                        The [petitioner] denied that there were any knives in the room.
                 He stated that when he and the victim left the apartment, they were
                 holding hands.

Id., slip op. at 2-3.

                In the post-conviction evidentiary hearing, the petitioner testified that he was a “slow
learner” and had failed to earn a “GED” after four years of schooling at “River Bend.” He testified
that trial counsel visited him three or four times prior to trial and that, on those occasions, he told
counsel that the victim’s injuries and her bleeding resulted from a fight with the petitioner’s niece
and that a washcloth bearing the victim’s bloodstains would have established the origin of the
injuries and blood. The petitioner testified that when he arrived at his mother’s house on the evening
of the crimes, he made a number of telephone calls to “buddies.”

                  The petitioner testified that counsel never explained the elements of aggravated rape
and never told him that he had the option not to testify at trial. He testified that he “didn’t want to
testify” at trial because, he said, “I ain’t educated well enough.” Nevertheless, he believed that he


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was compelled to testify. The petitioner denied that counsel informed him about the potential
punishment he faced or that he could receive consecutive sentences. He testified that he “never
heard [about] a plea.” He testified that, had he known that he could receive consecutive 25-year
sentences, he would have “took the fifteen.” The petitioner testified that, to his knowledge, counsel
did not visit the scene of the crimes.

               The petitioner testified that he told counsel that he wanted his stepbrother, David
Deckard, to testify at trial. He stated that he was unaware that a sentencing hearing would be held
following the guilty verdicts and that counsel did not discuss with him any strategy for the sentencing
hearing. He testified that he gave an uncounseled interview to the presentence investigator.

              The petitioner denied that counsel told him that a sample of the victim’s DNA had
been found on a knife.

               On cross-examination, the petitioner admitted that he was not charged with the
offenses against the victim until a year after the events and that trial counsel was not engaged until
that time. He admitted that he did not know what became of the washcloth. The petitioner claimed
that independent proof of the telephone calls he made would have established that the victim was
looking for drugs. He further admitted that David Deckard’s proposed testimony would have
duplicated other evidence heard by the jury. The petitioner testified that he would have taken a plea
offer of twenty years to serve at 100 percent.

                 Metropolitan Nashville (Metro) police officer Warren Fleak testified in the
evidentiary hearing that he investigated the crime scene and collected evidence including bed sheets,
a bedspread, pillows, clothing, and two knives. He testified that the items were not used as evidence
at trial and that the police department had destroyed them.

                 Metro detective Kent McAlister testified that he found no blood when he investigated
the crime scene. The detective recalled that the petitioner’s counsel requested that the knives be
tested for the presence of biological material. He testified that the test revealed merely the presence
of a substance of human origin.

                Tennessee Bureau of Investigation forensic scientist Hunter Green testified that she
tested the knives in question. She found no blood but found some other biological material of human
origin.

                 The petitioner’s trial counsel testified in the evidentiary hearing that he had been
practicing law since 1980. He met with the petitioner at the jail four to six times and met with him
twice after he was released on bond. Counsel testified that he was hired by the petitioner’s father
and worked with the father and other family members “in gathering evidence.” Counsel testified that
he was aware of the petitioner’s learning disability and intelligence quotient score of 75. He testified
that he told the petitioner what the prospective witnesses including David Deckard would say at trial.
He told the petitioner about the test results on the knife.


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                Counsel testified that the petitioner’s initial posture in the case was that he was not
guilty and that no knife had been at the scene. Counsel testified that the discovery of the biological
material on one of the knives damaged the defense’s strategy of consensual sexual activity. Counsel
could not recall whether he talked to the petitioner about his right not to testify, but he opined that
the only way to advance the petitioner’s defense in a “he said, she said” scenario was for him to
testify. Otherwise, “the jury would not have heard his version of the events.” Counsel testified that,
“from day one,” he and the petitioner operated from the assumption that the petitioner would testify
as a means of advancing his theory of defense.

              Counsel testified that he conveyed to the petitioner the State’s 20-year plea offer;
however, the petitioner was “pretty adamant” that he was not guilty.

                 Counsel agreed that he did not visit the crime scene but stated he saw no reason to
do so because he had been engaged to represent the petitioner “long after the event.” He testified
that at trial he used a diagram of the apartment where the offense occurred.

               Counsel testified that he did not subpoena David Deckard because, prior to trial, he
met with Mr. Deckard and the petitioner’s other family members who could serve as witnesses, all
of whom agreed to be present at trial without the behest of a subpoena. When it developed that Mr.
Deckard was unavailable for trial, counsel elected to proceed because the petitioner’s father could
provide the same information as could have been related by Mr. Deckard.

               Counsel further testified that he met with the petitioner at least once prior to the
sentencing hearing and obtained the petitioner’s signature on a release for his mental health records.

                 Following the hearing, the post-conviction court entered extensive written findings
of fact and conclusions of law. It accredited trial counsel’s testimony over that of the petitioner and
held that counsel had adequately met with the petitioner prior to trial, communicated the State’s plea
offer to the petitioner, properly investigated the case and prepared it for trial, and effectively cross-
examined prosecution witnesses. The court determined that the petitioner failed to establish any
deficiency in counsel’s performance by failing to obtain the washcloth and/or the records of the
petitioner’s telephone calls on the night of the offenses. The court held that trial counsel did not
trammel the petitioner’s right to not testify at trial; the court stated that, as the trial court in the
petitioner’s case, it “always gives defendants the choice between testifying and not testifying.” The
court further held that the petitioner was not prejudiced by counsel’s failure to further impeach the
victim, by failing to call Mr. Deckard to testify, by failing to present – or otherwise object to –
certain tangible evidence, and by failing to object to the prosecutor’s final argument. Specifically,
the court determined that the jury heard evidence of the victim’s bad character and nevertheless
accredited her testimony. Also, the court found that the proposed testimony of Mr. Deckard would
have been cumulative to that of the petitioner’s father. The post-conviction court determined that
any liberties taken by the prosecutor during final argument were cured by the trial court’s
instructions. The post-conviction court also held that the petitioner had failed to establish the



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ineffective assistance of appellate counsel. Based upon its findings and holdings, the post-conviction
court denied relief.

                The petitioner filed a timely notice of appeal from the court’s order.

               The post-conviction petitioner is obliged to establish his claims by clear and
convincing evidence. See T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court affords 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).

                The Sixth Amendment to the United States Constitution and Article I, section 9 of
the Tennessee Constitution both require that a defendant in a criminal case receive effective
assistance of counsel. See Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
ineffective assistance of counsel, the standard applied by the courts of Tennessee is “[w]hether the
advice given or the service rendered by the attorney [is] within the range of competence demanded
by attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980)
(second alteration in original).

               In Strickland v. Washington, the United States Supreme Court outlined the
requirements necessary to demonstrate a violation of the Sixth Amendment right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the
petitioner must show that counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms and must demonstrate that counsel made errors so serious that
he was not functioning as “counsel” guaranteed by the Constitution. Id. at 687, 104 S. Ct. at 2064.
Second, the petitioner must show that counsel’s performance prejudiced him and that errors were
so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

                The reviewing court does not “second guess” tactical and strategic choices pertaining
to defense matters and does not measure a defense attorney’s representation by “20-20 hindsight.”
Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Rather, a court
reviewing counsel’s performance should “eliminate the distorting effects of hindsight . . . [and]
evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.
Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).
On the other hand, “deference to matters of strategy and tactical choices applies only if the choices
are informed ones based upon adequate preparation.” Id.

                To establish prejudice, a party claiming ineffective assistance of counsel must prove
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, 104 S. Ct. at 2068. A reasonable
probability is one sufficient to undermine confidence in the outcome. Id.


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                 In the present case, nothing in the record countervails the post-conviction court’s
findings, and we affirm the denial of post-conviction relief. The petitioner’s complaints about
counsel’s lack of communication and preparation were expressed only by him and were contradicted
by counsel, whose testimony the post-conviction court accredited. The petitioner simply failed to
establish other claims by clear and convincing evidence. For instance, the petitioner failed to show
that he was prejudiced by the alleged inadequate chain of custody of the knife used by the State as
evidence. Also, the petitioner failed to demonstrate prejudice from counsel’s failure to advise him
of his right not to testify at trial, especially in light of the post-conviction court’s finding that, at trial,
the court advised the petitioner of his options with respect to testifying. Also, the petitioner failed
to establish ineffective assistance as a result of counsel’s failing to obtain the washcloth, the call
records for his parents’ residential telephones, and/or further testing of the knife and of other
materials from the crime scene. The petitioner’s evidence did not belie the post-conviction court’s
determinations that trial counsel adequately cross-examined State witnesses and competently sought
to impeach the victim.

                In this vein, the petitioner failed to establish ineffective assistance as a result of
counsel’s failure to discover that the victim had been arrested for forgery and had confessed to that
crime shortly before the petitioner’s trial. The petitioner failed to show that counsel’s failure to
discover the arrest for – or the confession to – forgery was deficient performance or that the arrest
itself provided a basis for impeachment.

               Furthermore, the record does not show that the petitioner was prejudiced by his
counsel’s failure to object to the prosecutor’s closing argument, especially in view of the post-
conviction court’s determination that its jury instructions adequately attenuated any liberties the
prosecutor may have taken.

                The petitioner complains about his appellate counsel related to that counsel’s failure
to raise on appeal the issue of trial counsel’s lapses in preparing the petitioner for the sentencing
hearing. We cannot sanction as ineffective assistance appellate counsel’s failure to raise on direct
appeal the issue of trial counsel’s ineffectiveness during the sentencing proceedings. This court has
repeatedly said that “[r]aising the issue of ineffective assistance of counsel on direct appeal is ‘a
practice fraught with peril.’” See, e.g., State v. Mosley, 200 S.W.3d 624, 629 (Tenn. Crim. App.
2005) (quoting State v. Sluder, No. 1236, slip op. at 16 (Tenn. Crim. App., Knoxville, Mar. 14,
1990)). Even if the issue of trial counsel’s performance in the sentencing proceedings had been
raised as an issue of ineffective assistance in this post-conviction proceeding, we would fail to see
that either deficient performance or prejudice was shown by a preponderance of the evidence.

               All in all, the record supports the post-conviction court’s findings and conclusions
of law, and for that reason, we affirm that court’s denial of post-conviction relief.


                                                            ___________________________________
                                                            JAMES CURWOOD WITT, JR., JUDGE


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