        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 12, 2014

                STATE OF TENNESSEE v. JAMES H. SAINT, JR.

                 Appeal from the Criminal Court for Davidson County
                  No. 2005-C-2234     Cheryl A. Blackburn, Judge


                  No. M2013-01511-CCA-R3-CD - Filed April 24, 2014


The petitioner, James H. Saint, Jr., was convicted of six counts of aggravated sexual battery
and was ordered to serve a sixty-six-year sentence. The petitioner brings this post-conviction
action where he alleges that he received the ineffective assistance of counsel in that: (1) trial
counsel failed to sufficiently inform the petitioner regarding the details of his settlement
offer; (2) trial counsel failed to adequately prepare both himself and the petitioner for trial;
and (3) trial counsel failed to adequately cross-examine the petitioner’s wife at trial. After
a thorough review of the record, we conclude that the petitioner has not established that
counsel performed deficiently or that any deficiency prejudiced the petitioner. We
accordingly affirm the denial of his petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Jason Mitchell Chaffin, Nashville, Tennessee, for the appellant, James H. Saint, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                          OPINION


                               Facts and Procedural History

       On October 26, 2006, a jury found the petitioner guilty of six counts of aggravated
sexual battery, Class B felonies. The trial judge sentenced the petitioner to serve eleven
years for each count, with the sentences to be served consecutively, for an effective sentence
of sixty-six years. The facts of that case are set forth in this court’s opinion in State v. Saint,
284 S.W. 3d 340, 348 (Tenn. Crim. App. 2008). On direct appeal, this court affirmed the
convictions but remanded the case for resentencing in accordance with the Sentencing Act
as it existed at the time of the offenses. Saint, 284 S.W. 3d at 340. On remand, the trial court
again sentenced the defendant to an effective sentence of sixty-six years, and this court
affirmed the sentence. State v. James H. Saint, Jr., No. M2009-01287-CCA-R3-CD, 2010
WL 2106224 (Tenn. Crim. App. May 26, 2010).

        On April 16, 2012, the petitioner filed a pro se petition for post-conviction relief. On
May 17, 2012, the trial court appointed counsel to the petitioner and on July 24, 2012,
conducted a hearing to determine whether the petition was barred by the statute of
limitations. The trial court determined that although the petition was filed untimely, “[d]ue
process necessitate[d] Petitioner be afforded a full and fair evidentiary hearing.” The
petitioner then filed an amended petition for post-conviction relief, and the trial court
conducted an evidentiary hearing.

       At the post-conviction hearing, the trial court heard testimony from both the petitioner
and his trial counsel. The petitioner testified that he did not have very strong reading
comprehension skills and that his memory was poor. He felt that he suffered from memory
problems, as he often had to write things down to remember them. He stated that he never
received a copy of the discovery in his case before he went to trial, and that while he did meet
with trial counsel prior to the trial, he did not recall reviewing or discussing the evidence
against him. He further testified that he was unaware of the true nature of the allegations
against him and that he only became aware of these allegations when his trial commenced
and he heard the testimony of his wife and the victim. The petitioner claimed that he did not
understand that he was being charged with six counts of aggravated sexual battery but rather
thought that the indictment contained only one count. The petitioner further stated that he
was not made aware of the potential sentence that he faced.

        Prior to trial, the petitioner rejected a plea offer from the State that would have
required him to serve a twelve-year sentence. He did recall discussing the State’s offer with
trial counsel but testified that trial counsel told him only that “if you don’t take it, you’ll be
sorry.” The petitioner testified that, during trial, it was his understanding that he would only
receive a twelve-year sentence if he were convicted.

       The petitioner stated that the defense’s theory of the case was that the petitioner was
innocent, and the petitioner proclaimed his innocence at trial. The petitioner did not recall
discussing preparation for his defense with trial counsel but remembered only that when

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discussing his potential testimony, trial counsel told the petitioner “just to tell the truth.”

        The petitioner stated that he provided trial counsel with the names of witnesses who
could establish that the victim was dishonest and had problems with thievery. He testified
that trial counsel may have followed up with some of the witnesses, but “not probably all of
them.”

        On cross-examination, the petitioner reiterated that his memory was poor, and he
conceded that it was possible that he did not remember meeting extensively with trial counsel
and discussing trial strategy. He also conceded that it was possible that trial counsel did
discuss the penalties he was facing and that he simply did not remember these discussions.
He testified that the only thing he remembered about his potential sentence was when it was
addressed at the conclusion of the trial. The petitioner stated that he did not know whether
trial counsel discussed with him the bill of particulars that had been filed. He testified that
he thought he remembered trial counsel showing him a video recording of his confession to
police and that he did remember discussing with trial counsel that the trial strategy would be
to suggest that the victim was lying about the accusations against the petitioner. He further
stated that he remembered witnesses testifying in court but could not recall if they testified
about the victim’s history of dishonesty and theft.

        Trial counsel testified that he assumed representation of the petitioner after the
attorney initially assigned to the case resigned from the public defender’s office. He stated
that as part of his representation he would have discussed the petitioner’s interviews with
police and played the tapes of the interviews for the petitioner. He testified that he would
have had the opportunity to go over discovery materials with the petitioner that had been
provided in the formal discovery response and that initial trial counsel was also involved in
the discussion of the discovery materials.

       Referencing a letter between the petitioner and his first attorney, trial counsel
determined that the petitioner received the discovery in his case on November 14, 2005, and
that he returned the discovery to the public defender’s office on December 15, 2005. Trial
counsel testified that the petitioner had physical control of the discovery materials for a
period of one month and that he later had discussions as to the various aspects of the
discovery materials with the petitioner.

        Trial counsel acknowledged that the petitioner had expressed difficulty in reading and
understanding the discovery materials. Trial counsel made observations in his notes
reflecting “a little bit of exasperation where I say, explained yet again this thing or that again
regarding the proof in the case and a couple of times when [the petitioner] called and said he
just didn’t understand something and wanted it repeated. And so a lot of time was spent with

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him trying -- trying to do that.” Trial counsel testified that the petitioner’s memory struggles
manifested themselves in two different ways. The first was when the petitioner would
request clarification on an issue that trial counsel believed that he had made clear to the
petitioner. The second was the petitioner’s inability to remember whether specific events
occurred, a response trial counsel noted was “unusual . . . in an allegation of this nature.”

        Trial counsel testified that the petitioner would have “absolutely” been made aware
that he was facing six counts of aggravated sexual battery. He stated that he explained to the
petitioner that if he rejected the State’s plea agreement and proceeded to trial that he faced
the potential for consecutive sentencing. He explained on multiple occasions that the
petitioner would potentially receive far more than a twelve-year sentence if he was convicted
at trial. Trial counsel referenced his case notes, which mentioned specific meetings on
February 4, 2006, and February 27, 2006. During the February 4 meeting, trial counsel
indicated that the petitioner could receive a sentence ranging from eight to seventy-two years
if convicted, and on February 27, trial counsel drew a diagram for the petitioner in an attempt
to clearly explain the concept of consecutive sentencing.

        Trial counsel stated that he requested and received a bill of particulars from the State
and that it was his common practice to go over the bill of particulars with his clients. He
further testified that he raised the inconsistencies between the bill of particulars and the
actual trial testimony in his motion to dismiss and his motion for a new trial.

        Trial counsel confirmed that the petitioner gave him the names of other potential
witnesses and that he contacted four of these witnesses, ultimately calling two of the
witnesses to testify as to the pattern of lying and stealing that the victim exhibited. He stated
that these witnesses “were both very verbal, very committed to [the petitioner] and I thought
particularly strong witnesses.” Trial counsel recalled that a fairly extensive amount of
testimony dealt with the victim’s dishonesty and theft and stated that the other witnesses the
petitioner recommended would have likely provided only cumulative information. Trial
counsel further stated that he did not pursue every line of questioning that the petitioner
suggested because he felt that it would not be relevant or admissible at trial.

        Trial counsel testified that he made a demand for the production of treatment records
from the victim’s therapist. The trial court issued a subpoena instanter for the records, and
in response, a one-page document was faxed to trial counsel, which trial counsel found was
not an extensive record of treatment. During his cross-examination of the therapist, trial
counsel was able to bring out the issues regarding the victim’s dishonesty. He subsequently
made a motion for the court to instruct the jury to disregard the testimony of the therapist,
which the trial court denied. Trial counsel did not move for a mistrial after failing to obtain
the therapeutic records of the victim.

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       Trial counsel testified that the defense’s theory in this case was that the petitioner did
not commit the crimes and that a potential defense was to assert that the allegations were “a
plot by [the petitioner’s] wife to get rid of [the petitioner].” He stated that he was trying to
“tread lightly” with his cross-examination of the petitioner’s wife. Trial counsel stated that
because the wife “certainly” had “several things to say that were advantageous to the
defense” that he wanted “to score any points that might be made from that from her before
alienating her.” Trial counsel agreed that his manner of cross-examining the petitioner’s wife
was a deliberate trial strategy.

       On May 24, 2013, the trial court issued an order denying the petitioner’s request for
post-conviction relief. The trial court found that the petitioner had failed to prove by clear
and convincing evidence that he received ineffective assistance of counsel or that he was
prejudiced by any alleged deficiency. The trial court credited the testimony of trial counsel
that he informed the petitioner of the nature of the charges he was facing and the potential
sentences those charges carried. The trial court also credited trial counsel’s testimony that
he adequately prepared for trial and found that the petitioner’s claim that he was unaware of
the evidence against him until trial was not credible. The trial court credited trial counsel’s
testimony that calling further witnesses to attest to the victim’s dishonesty would have been
cumulative and found that it could not speculate as to the testimony of potential witnesses
because the petitioner did not present any of his proposed witnesses at the evidentiary
hearing. Lastly, the trial court found that trial counsel’s failure to obtain the victim’s
treatment records did not prejudice the petitioner, nor did trial counsel’s tactical decision in
regards to cross-examination result in ineffective assistance of counsel that prejudiced the
petitioner. On June 24, 2013, the petitioner filed a timely notice of appeal. We proceed to
address his claims.

                                          ANALYSIS

       The petitioner contends that the post-conviction court erred in dismissing his petition
because trial counsel was ineffective for: (1) failing to sufficiently inform the petitioner
regarding the details of the State’s settlement offer; (2) failing to prepare adequately for trial
and failing to prepare the petitioner adequately for trial; (3) failing to adequately cross-
examine the petitioner’s wife during trial. The State asserts that the trial court properly
denied the petition because the petitioner has failed to prove that trial counsel was deficient.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Fields v. State, 40 S.W.3d 450, 455 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). “In reviewing the application of law to factual findings to determine whether
counsel’s performance was deficient or whether the defendant was prejudiced by that
deficiency, appellate courts should conduct a purely de novo review.” Fields, 40 S.W.3d at

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457. Appellate courts “are bound by the trial judge’s findings of fact unless we conclude that
the evidence contained in the record preponderates against the judgment entered in this case.”
Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

       A petitioner may obtain post-conviction relief from a conviction only when it is void
or voidable due to the denial of a right under the Tennessee Constitution or the Constitution
of the United States. T.C.A. § 40-30-103 (2010); Howell v. State, 151 S.W.3d 450, 460
(Tenn. 2004). The petitioner must prove the allegations in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). This standard is met 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)).

       Both the Sixth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution guarantee the right to counsel. The right to counsel affords
an individual the right to “reasonably effective assistance, that is, within the range of
competence demanded of attorneys in criminal cases.” Burns, 6 S.W.3d at 461. Counsel
is ineffective when “counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).

         A claim of ineffective assistance of counsel contains two components: (1) the
petitioner must show that counsel’s performance was deficient in some way, and (2) the
petitioner must show that the deficiency actually prejudiced the defense. Burns, 6 S.W.3d
at 461 (citing Strickland, 466 U.S. at 687). To establish deficiency, the petitioner must show
that counsel’s errors were “so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).
The services of counsel must be “within the range of competency demanded of attorneys in
criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Courts evaluating the
performance of an attorney “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. In
order to fairly assess counsel’s conduct, every effort must 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.” Strickland, 466
U.S. at 689. “The fact that a particular strategy or tactic failed or hurt the defense, does not,
standing alone, establish unreasonable representation.” Goad, 938 S.W.2d at 363. However,
this court will defer to trial counsel’s strategy and tactical choices “only if the choices are
informed ones based upon adequate preparation.” Id.



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       In order to show “that counsel’s deficient performance prejudiced the defense, the
petitioner ‘must establish a reasonable probability that but for counsel’s errors the result of
the proceeding would have been different.’” Pylant v. State, 263 S.W.3d 854, 868 (Tenn.
2008) (quoting Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006)). A “reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
Counsel’s performance must be so deficient that it deprived petitioner of a fair trial and
called into question the reliability of the outcome. Id. The petitioner must establish both
components in order to succeed on his claim of ineffective assistance of counsel. Goad, 938
S.W.2d at 370. Failure to establish either component provides a court with sufficient basis
to deny relief of the claim. Id.

                                    A. Settlement Offer

       The petitioner first contends that counsel was ineffective for failing to adequately
inform the petitioner as to the details of the State’s plea agreement. The petitioner
specifically argues that he “had no idea what his total exposure was on the charges as
presented in the indictment.”

        The petitioner testified at the post-conviction hearing that he had a poor memory and
had no recollection of trial counsel ever informing him that he was charged with six counts,
rather than one, of aggravated sexual battery. He rejected an offer from the State to plead
guilty in exchange for a twelve-year sentence and contends that this rejection was premised
upon trial counsel’s failure to explain to him that convictions on all six of the charges of
aggravated sexual battery carried a maximum sentence of seventy-two years. He stated that
the only comment trial counsel made in regard to the plea agreement was that “if you don’t
take it, you’ll be sorry.”

        Trial counsel testified, and the post-conviction court credited his testimony, that he
had multiple meetings with the petitioner to explain the nature of the charges against him and
the possible sentences that could result from a conviction. In denying the petitioner’s claim,
the post-conviction court noted that the petitioner “conceded that he may have discussed
possible penalties with [t]rial [c]ounsel that he just could not remember,” and commented
that trial counsel’s “file notes showed that they discussed the concept of consecutive
sentencing on at least two dates.” We agree that the petitioner did not establish by clear and
convincing evidence that trial counsel performed deficiently. Trial counsel provided specific
instances when he discussed the nature of the charges against the petitioner, while the
petitioner claims not to remember those discussions. Trial counsel even responded that he
was “afraid [it was] true” that on multiple occasions he would have had discussions where
the petitioner was apprised of the potential for receiving far more than a twelve-year sentence
if he went to trial and were convicted. The post-conviction court chose to credit the

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testimony of trial counsel. We conclude that the evidence does not preponderate against the
post-conviction court’s findings. Thus, the petitioner is entitled to no relief on this issue.

                        B. Failure to Adequately Prepare for Trial

       The petitioner next argues that trial counsel was ineffective because trial counsel
failed to adequately prepare both himself and the petitioner for trial. Specifically, the
petitioner claims that he never received any discovery materials and that trial counsel never
met with him to discuss his case, did not make him fully aware of the nature of the charges
against him, did not call all of the witnesses that the petitioner suggested, and failed to
procure therapeutic records that would demonstrate that the victim was dishonest.

        The petitioner testified that he never received a copy of the discovery materials for his
trial. However, trial counsel referenced a letter from the petitioner’s original counsel which
stated that the petitioner received the discovery materials on November 14, 2005, and
returned them on December 15, 2006. The petitioner admitted on cross-examination that it
was possible that trial counsel met with him “extensively” to discuss trial strategies and
sentencing and that he simply did not remember it. Trial counsel stated that while original
counsel first discussed the discovery materials with the petitioner, he also reviewed the
evidence with the petitioner, and that due to his poor memory the petitioner would frequently
call and request repeated explanations of issues.

       The petitioner testified that he provided trial counsel with a list of witnesses who
would testify to the victim’s dishonesty but that he was not sure if trial counsel followed up
with all of these witnesses. Trial counsel indicated that he contacted four of the witnesses
and called two of the witnesses to testify. He stated that the witnesses “were particularly
strong witnesses” and that additional witnesses would have likely provided only cumulative
testimony.

       The petitioner claims that counsel was deficient for failing to acquire therapeutic
records from the victim’s therapist and for failing to move for a mistrial when he did not
receive them. Trial counsel stated that he made a demand for the production of the records
and in response to a subpoena instanter, trial counsel received only a one-page fax that
constituted the treatment records, an amount trial counsel agreed was not very extensive.
Trial counsel then elicited testimony from the therapist that brought out the issue of the
victim’s dishonesty and made a motion to have the jury disregard the testimony of the
therapist.

        We conclude that the petitioner has not established by clear and convincing evidence
that trial counsel was inadequately prepared for trial. The evidence shows that the petitioner

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did receive discovery materials, and the post-conviction court credited the testimony of trial
counsel that he reviewed these materials with the petitioner. The post-conviction court also
credited the testimony of trial counsel that he called two of the witnesses the petitioner
suggested and that further witnesses would likely only provide cumulative testimony.
Further, the petitioner has not shown by clear and convincing evidence that it was error for
trial counsel to fail to request a mistrial and that this error prejudiced the petitioner. The
evidence shows that the therapeutic records consisted of only a single page, that trial counsel
addressed the issue of dishonesty in his cross-examination, and that he moved that the jury
be instructed to disregard the testimony of the therapist. It is appropriate for a trial court to
declare a mistrial “only when there is a ‘manifest necessity.’” State v. Williams, 929 S.W.2d
385, 388 (Tenn. Crim. App. 1996) (quoting Arnold v. State, 563 S.W.2d 792, 794 (Tenn.
Crim. App. 1977)). The petitioner has not proved that such “manifest necessity” existed in
this case, and accordingly he cannot establish prejudice. Thus, we conclude that the
petitioner is not entitled to any relief on this issue.

                                   C. Cross-Examination

       The petitioner’s final claim is that trial counsel failed to adequately cross-examine the
petitioner’s wife. Specifically, he contends that the wife had detailed and specific
information about matters in this case that would have proved helpful or exculpatory to the
petitioner.

        Trial counsel testified that he discussed with the petitioner the possibility of utilizing
the theory that the allegations against the petitioner were the fruits of a plot of his wife “to
get rid of him.” Trial counsel elected to “tread lightly” when cross examining the petitioner’s
wife because she had “several things to say that were advantageous to the defense,” and he
wanted “to score any points that might be made from that from her before alienating her.”
The post-conviction court found that trial counsel made a strategic tactical decision with his
cross-examination to ensure that beneficial evidence to the defense “was reiterated before
potentially alienating [the wife] with an aggressive cross-examination.” “The fact that a
particular strategy or tactic failed or hurt the defense, does not, standing alone, establish
unreasonable representation.” Goad, 938 S.W.2d at 363. Examining the conduct from trial
counsel’s perspective at the time, we conclude that the petitioner has not established by clear
and convincing evidence that trial counsel’s approach was deficient or that the approach
prejudiced the petitioner. The evidence shows that trial counsel made a reasonably informed
decision with his approach to the cross-examination of the petitioner’s wife. Thus, the
petitioner is not entitled to any relief on this claim.




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                             CONCLUSION

For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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