         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 9, 2005

              STEVEN PAUL DESKINS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2001-B-909 Steve R. Dozier, Judge



                    No. M2004-02638-CCA-R3-PC - Filed October 12, 2005


The petitioner, Steven Paul Deskins, was convicted of seven (7) counts of rape of a child and four
(4) counts of aggravated sexual battery. On appeal, this Court reversed one (1) of the petitioner’s
convictions for aggravated sexual battery, finding that it violated due process and double jeopardy,
but otherwise affirmed the remaining convictions. See State v. Steven Paul Deskins, No. M2002-
01808-CCA-R3-CD, 2003 WL 21957083 (Tenn. Crim. App., at Nashville, Aug. 14, 2003), perm.
app. denied (Tenn. Jan. 5, 2004). The petitioner filed a petition for post-conviction relief alleging,
inter alia, ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction
court denied post-conviction relief. After a thorough review of the record and the applicable
authorities, we affirm the judgment of the post-conviction court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which, DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Steven Deskins.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bernard F. McEvoy, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

       The facts supporting the petitioner’s underlying convictions were summarized by this Court
on direct appeal as follows:
          The defendant’s daughter, A.D.,1 who was twelve years old at the time of
trial, testified the defendant began to sexually abuse her during the 1999-2000 school
year when she was in the fourth grade. The proof showed the abuse continued until
February 2001. According to A.D., the abuse involved numerous incidents of anal
intercourse, vaginal intercourse, digital penetration, oral sex, and other acts of sexual
contact. . . .

        A.D. testified that while she was suspended from school during the fifth
grade, the defendant took her into his bedroom, took off her clothes, placed her on
her hands and knees, and performed anal intercourse. A.D. testified the defendant
told her to “relax.” She stated he then told her to “flip over,” and he performed
vaginal intercourse. She further indicated that “gooey stuff” came out of the
defendant’s penis. She testified the defendant then got off the bed, made her touch
his penis, and then made her perform oral sex on him. She also said he squeezed her
breasts while she performed oral sex on him.

        A.D. testified that during her fourth grade year while her mother was on a trip
to Florida, the defendant called her into his bedroom, forced her to engage in anal
intercourse, and then made her touch his penis. She further stated the defendant
performed vaginal intercourse.

       The victim then testified to a third incident which occurred while the family
was visiting her grandmother. The victim indicated that during the visit, she and the
defendant returned home to retrieve something the family had forgotten. She said
that when they arrived at their home, the defendant made her engage in anal
intercourse. She also stated he touched her vagina and penetrated it with his finger.
She recalled that the defendant told her to “relax” during the incident.

         A.D. recounted another occasion during which the defendant woke her and
made her watch a pornographic movie while her mother and brother were asleep.
A.D. testified the defendant instructed her not to tell anyone about the sexual abuse
because he would “get in trouble” and “go to jail.” She eventually reported the abuse
to a relative.

Catherine Deskins, the defendant’s wife and the victim’s mother, testified she and the
defendant had been married nearly thirteen years at the time of trial. She said they
married when she was seventeen years old and the defendant was thirty years old.
She stated the defendant was the father of both of her children, the twelve-year-old
victim and a ten-year-old son. She testified the defendant consumed alcohol on a
dailybasis. She confirmed that during the spring of 2000, she went on a trip to


1
    It is the practice of this court to refer to juvenile victims of sexual abuse by their initials.



                                                       -2-
Florida while the defendant and the children remained at home. She further testified
that during the victim’s school suspension, the victim wanted to go with her to work
rather than stay at home with the defendant. She stated the victim had significant
behavioral problems in the fourth and fifth grades.

The victim’s ten-year-old brother, the defendant’s son, testified that two to four times per
week, while he and the victim were home with the defendant after school, the defendant
asked the victim to join him in the bedroom, where she would remain for ten to twenty
minutes. He testified the victim sometimes seemed unhappy when she left the bedroom.

         Detective Harry Meek of the Metropolitan Nashville Police Department
testified regarding his interview with the defendant. In the recorded interview, which
was played for the jury, the defendant initially said, “To my knowledge, I haven’t
done anything.” The defendant later stated he did not remember having sex with the
victim; it “could have happened;” he “couldn’t swear” he did not have sex with the
victim; and there had been times he could not remember having sex with his wife.
The defendant then indicated it was possible the sexual abuse occurred while he was
intoxicated or asleep. Detective Meek stated that two hours after the interview, the
defendant telephoned him and wanted to know how long it would take to reunite his
family if he admitted to the allegations.

         Hollye Gallion, a nurse practitioner with Our Kids Center in Nashville,
testified she examined A.D. on February 23, 2001, for diagnosis and treatment. The
victim relayed to her the various acts of sexual abuse by the defendant. Gallion
stated that A.D. was nearing adulthood physically; however, she appeared to be
developmentally delayed and did not function at her age level. Gallion said she
observed a deep “notch” in A.D.’s hymen which may or may not have been an injury
caused by penetration. She indicated A.D.’s anal examination was normal. She
testified it was possible for an adult male to engage in vaginal or anal intercourse
with a child without causing detectable injury to the child.

        Lisa Dupree, a counselor and social worker with Our Kids Center, also
interviewed A.D. to obtain her history in preparation for Gallion’s physical
examination. She testified A.D. said the defendant “had been doing stuff,” that “he
put his private in her private,” and that “this happened more than one time.” Dupree
stated the victim said the last incident of abuse occurred recently. According to
Dupree, the victim also described another incident that occurred while her mother
was on a trip. Dupree said the victim described ejaculation and reported both penile-
rectal contact and penile-oral contact.

        The State called Sherry Goodwin, an investigator for the Department of
Children’s Services, to testify in light of the defendant’s attack upon the credibility
of the victim. She testified that she interviewed the victim on February 23, 2001.


                                         -3-
        Goodwin stated the victim reported that the defendant began sexually abusing her
        approximately two years earlier. Goodwin said A.D. told her the defendant put his
        penis in her vaginal area, her “bottom,” and her mouth. Goodwin recalled the victim
        also said the defendant touched her breasts. She said A.D. also described semen.
        Goodwin testified the victim said the defendant told her not to report the abuse
        because he would get in trouble. According to Goodwin, the victim said the last
        incident occurred during the week before the interview.

        Martha Jane Maxwell, A.D.’s fourth grade teacher, testified A.D. was a special
        education student who functioned at least two grade levels below other students her
        age. Maxwell stated that at the beginning of the school year, the victim was very
        affectionate and greeted her with a “bear hug” every morning. However, during the
        middle of the school year, she began to notice changes in A.D.’s behavior. Maxwell
        said A.D. appeared to be unhappy, cried, and began to rub her body against boys in
        the classroom. She was so concerned that she reported this to school officials and to
        the defendant and his wife. She suggested to the defendant and his wife to “possibly
        take her maybe for a physical to see if there was something going on.”

                Dr. Joseph LaBarbera, a clinical psychologist, testified for the defendant that
        he evaluated the victim on February 14, 2001, and diagnosed her as having attention
        deficit disorder, major depression, and psychotic features. He explained that due to
        these “psychotic features,” the victim had difficulty perceiving situations accurately.
        However, he opined the victim was not delusional. He also said prior testing showed
        the victim had an IQ of approximately seventy or eighty. On cross-examination, Dr.
        LaBarbera acknowledged that he was unaware of any prior sexual abuse and agreed
        that prior sexual abuse could cause or contribute to psychological problems.

                Tammy Ramsey, a school psychologist, testified for the defendant. She
        diagnosed the victim as emotionally disturbed. She recounted the victim’s statement
        that her deceased grandmother came on her bus and her grandmother’s voice spoke
        to her. Ramsey also confirmed the victim was suspended from school for twelve
        days from February 16 to March 5, 2001.

Steven Paul Deskins, 2003 WL 21957083, at *1-3.

        At the conclusion of the jury trial, the petitioner was convicted by the jury of seven (7) counts
of rape of a child and four (4) counts of aggravated sexual battery. As a result, the petitioner was
sentenced to an effective sentence of seventy (70) years. The petitioner appealed his convictions,
arguing that the evidence was insufficient to support the convictions, that the trial court incorrectly
admitted certain pieces of evidence and that the imposition of consecutive sentences for three (3) of
the convictions was improper. On appeal, this Court reversed one (1) of the aggravated sexual
battery convictions as being in violation of due process and double jeopardy. State v. Steven Paul
Deskins, No. M2002-01808-CCA-R3-CD, 2003 WL 21957083, at *5-6 (Tenn. Crim. App., at


                                                  -4-
Nashville, Aug. 14, 2003), perm. app. denied (Tenn. Jan. 5, 2004). The Supreme Court denied
permission to appeal.

         Subsequently, the petitioner timely filed a pro se petition for post-conviction relief. Counsel
was appointed and an amended petition was filed. The petition alleged, among other things, that trial
counsel was ineffective because she failed to: (1) challenge the victim’s competence to testify at trial;
(2) failed to have the medical report from Our Kids reviewed by an expert and challenge testimony
relating to hymenal injury; (3) failed to file a motion to suppress the petitioner’s statement to the
police; and (4) failed to call necessary witnesses and adequately investigate and confer with the
petitioner.

                              Evidence at the Post-Conviction Hearing

        At the post-conviction hearing, trial counsel for the petitioner testified that she had been
licensed to practice law since 1998, and had tried at least four (4) cases before a jury prior to the
petitioner’s trial. Trial counsel also testified that she was a former law clerk for the Court of
Criminal Appeals. Trial counsel was retained by the petitioner and took over the petitioner’s case
from the public defender’s office, and she met with those lawyers at length when she was first placed
on the case.

       Trial counsel stated that she met with the petitioner several times prior to trial and planned
on developing a defense that argued that the victim was psychotic and that the jury could not
reasonably rely on her ability to accurately perceive events.

       Trial counsel could not recall whether she filed a pre-trial motion to determine whether the
victim was competent to testify but thought that she recalled a hearing on the subject. She
acknowledged that she did not recall objecting to the victim’s competency at trial prior to her
testimony.

       Trial counsel admitted that she did not have the medical report from Our Kids evaluated by
an expert because the petitioner could not afford one, and she did not think that she could get funds
from the State that would allow for an expert to review the report. However, trial counsel
maintained that she thoroughly examined the report and reviewed it with the assistance of a medical
doctor. Trial counsel stated that she reviewed several medical treatises on the subject involved and
prepared extensively for cross-examination of the witness from Our Kids.

        Trial counsel was aware that the petitioner had a relatively low IQ and that he had some
problems with alcohol and drug use. Trial counsel admitted that she did not have the petitioner
evaluated by mental health professionals prior to trial. Trial counsel stated that the petitioner was
not helpful in trial preparation. She thought that she advised the petitioner not to testify because she
recalled reading the police interview and did not think that the petitioner would make a good witness.




                                                  -5-
        Trial counsel admitted that she did not file a motion to suppress the petitioner’s statement
to the police, but she defended her actions by stating that she did not think there were grounds
present to file the motion. Trial counsel did not recall the petitioner’s claims that he was coerced
into giving a statement. Trial counsel recalled that she spent a significant amount of time preparing
the case for trial.

        The petitioner testified that trial counsel met with him “maybe three times” and stayed for
approximately fifteen (15) minutes at each visit. The petitioner maintained that trial counsel never
discussed a defense strategy but mainly talked about the State’s evidence. The petitioner claimed
that he gave trial counsel the names of several potential witnesses and that trial counsel informed
him that she contacted those individuals.

        The petitioner claimed that trial counsel did not inform him of his right to testify. However,
the petitioner later admitted that trial counsel warned him that if he were to testify, his prior
convictions might be used against him in evidence.

       At the conclusion of the post-conviction hearing the post-conviction court took the matter
under advisement. In an order entered October 14, 2003, the post-conviction court made the
following findings:

                The petitioner’s first claim is that the trial attorney failed to call witnesses that
       would establish his innocence. The petitioner briefly testified at the post-conviction
       hearing that he notified his trial attorney of a potential teacher from the victim’s
       school who could corroborate his assertion of innocence. The examination of the
       trial attorney, . . ., brought no additional proof as to the exculpatory potential of the
       unnamed witness. [Trial counsel] did call a school psychologist to offer insight about
       the victim’s credibility. The Court notes that the proof offered with respect to this
       claim was minimal at best and would not rise to the burden that the petitioner is
       required to carry in accordance with Strickland. Due to the lack of clear and
       convincing evidence in reference to this assertion, the Petitioner’s claim is
       respectfully without merit.

               Secondly, the petitioner asserts that that [sic] trial counsel failed to adequately
       confer with him, advise him and investigate the case. The Court heard proof from
       the petitioner’s trial attorney, . . . , that she met with the petitioner for “hours” and
       interviewed several potential witnesses regarding the victim’s and the petitioner’s
       mental health “issues.” In particular, trial counsel spoke with a physician numerous
       times to help prepare for the scientific proof of the State’s case in regards to victims
       of sexual abuse. Further, trial counsel testified that she spent “days” researching in
       preparation for trial on the nature of hymenal injuries by way of medical reports on
       the victim. In addition, trial counsel testified that when she did speak with the
       petitioner, specifically when dealing with whether the petitioner should testify on his
       behalf, she was of the opinion that at all times the petitioner understood the nature


                                                    -6-
of their conversations. The petitioner testified that trial counsel met with him “three
times, ten to fifteen minutes” and that the trial counsel never advised him of his
rights. The Court accredits the testimony of [trial counsel] and is of the opinion that
the petitioner has failed to carry his burden with respect to this issue.

        The petitioner next asserts that trial counsel failed to make a written or oral
motion to suppress the petitioner’s confession. The State offered proof at trial that
the petitioner stated to police that the crimes for which he was indicted and convicted
of “may have happened” and that “I sometimes forget when me and my wife have
sex.” The petitioner testified that the “confession” was the result of police coercion
and that he told trial counsel of the circumstances surrounding his statements. Trial
counsel conceded on cross examination that no motion to suppress these statements
was attempted. However, the likelihood of succeeding at such a hearing would be
minimal based on the proof at trial. Further, some of the statements made by the
defendant occurred after he left the police department and were made over the phone
when the defendant called the police. However, the Court feels that whatever
assignment of error, if any, that can be attached to the petitioner’s claim was
reviewed by the Criminal Court of Appeals who weighed the sufficiency of the
convicting evidence. More particularly, the appellate court found the scientific
evidence, i.e. the hymenal injury, to be sufficient along with the victim’s testimony
as to how the injury was inflicted. Deskins, at *4. Therefore, the petitioner’s
assertion as to the failure of trial counsel to not attempt a suppression of the
confession must be respectfully denied.

         Next, the petitioner claims that trial counsel failed to adequately impeach the
victim’s testimony during cross-examination. The trial counsel testified that she
spent “numerous” hours reading over psychological reports of the victim in
preparation of impeaching the victim’s testimony. The trial counsel further stated
that trial strategy would be that the victim suffered from depression, attention deficit
- hyperactivity disorder, and psychotic features with difficulty reasoning. The Court
has reviewed the trial transcript and is of the opinion that trial counsel adequately
impeached the victim’s credibility. Specifically, the Court notes that the victim’s
mother was asked about the victim’s school behavior and one Dr. Joseph LaBarbera
gave detailed information in reference to the victim’s behavior and diagnosis. . . .
[T]he petitioner has not carried his burden by clear and convincing evidence and,
thus, this issue is respectfully without merit.

         As his sixth assertion, the petitioner claims that trial counsel failed to
interview or subpoena an expert witness to rebut the State’s expert who testified as
to the victim’s hymenal injuries. The trial counsel conceded that she learned after the
fact that, though she was retained, she could petition the Administrative Office of the
Courts (AOC) for a court-funded expert. However, the trial counsel stated, as noted
above, that she did in fact confer frequently with a doctor to help prepare for the


                                          -7-
       scientific evidence to be presented at trial. Therefore, she did interview an expert
       witness to rebut the State’s expert as to the hymenal injuries. Further, a review of the
       record reveals that the trial counsel did an adequate cross-examination of the State’s
       experts. Specifically, trial counsel attempted to impeach by way of a learned treatise
       pursuant to the Tennessee Rules of Evidence 618. . . . Therefore, the petitioner’s
       assertion is respectfully without merit.

                The petitioner claims that trial counsel failed to adequately cross-examine the
       nurse practitioner who testified to the victim’s hymenal injuries. Again, trial counsel
       testified that she consulted with a physician to enlighten her as to the nature of
       hymenal injuries and the contents of the medical reports. The Court has reviewed the
       trial transcript and is of the opinion that [trial counsel] adequately used this
       information to cross-examine the nurse who testified on behalf of the State.
       Therefore, this issue is without merit.

               Next, the petitioner claims that trial counsel failed to request a psychological
       evaluation of the petitioner and that this was prejudicial to his case. The Court can
       summarily dismiss this claim. Trial counsel testified that the defense would be that
       the petitioner did not commit the acts for which he was charged with. Further, the
       petitioner testified that “no way it happened” and that the victim was making false
       accusations. Trial counsel conceded that no mental evaluation was conducted but
       that she did interview friends and family in order to obtain a better understanding of
       any potential diminished capacity of the petitioner. However, the Court finds that no
       psychological evaluation would be relevant at trial, per Rule 401 of the Tennessee
       Rules of Evidence, if the defense raised was one of innocence - not one of diminished
       capacity. A psychological evaluation would not have “any tendency to make the
       existence of any fact that is of consequence to the determination of the action more
       probable or less probable that [sic] it would be without the evidence” since the
       defense was one of innocence.

       After the denial of the petition, the petitioner filed a timely notice of appeal with this Court.

                                            Analysis
                               Post-Conviction Standard of Review

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). The post-conviction court’ s findings
of fact are conclusive on appeal unless the evidence preponderates otherwise. See State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issue raised, we will afford those
findings of fact the weight of a jury verdict, and this Court is bound by the court’s findings unless
the evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court


                                                 -8-
may not reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the
post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). All questions
concerning the credibility of the witnesses, the weight and value to be given their testimony, and the
factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79. However, the post-conviction
court’s conclusions of law are reviewed under a purely de novo standard with no presumption of
correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes those
decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

         On appeal, the petitioner argues that trial counsel was ineffective because she: (1) should
have challenged the victim’s competence to testify at trial; (2) failed to have the report from Our
Kids evaluated by an expert; (3) failed to file a motion to suppress the petitioner’s statement; and
(4) failed to call necessary witnesses, adequately investigate the case and confer with the petitioner.



                                                  -9-
                                         Motion to Suppress

        On appeal, the petitioner first claims that trial counsel was ineffective because she failed to
file a motion to suppress the petitioner’s statement. The State argues that the petitioner’s claim has
no merit.

        The evidence at the post-conviction hearing indicates that trial counsel could not find any
legal basis for a motion to suppress. The record even contained information that showed that the
petitioner made several voluntary phone calls to the police after his interview. The petitioner
claimed that he told trial counsel that he was coerced into making a statement.

         In denying the petition, the post-conviction court gave credibility to the testimony of trial
counsel and determined that the likelihood for succeeding at a hearing on a motion to suppress would
have been “minimal based on the proof at trial.” Further, the post-conviction court noted that some
of the statements were made after the petitioner’s initial interview when he called the police himself.
Moreover, the post-conviction court pointed out that the jury heard that the defendant contended that
what he told the police “may have happened” and that he “sometimes forget [sic] when me [sic] and
my wife have sex.” As stated above, “questions of credibility of the witnesses, the weight and value
of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as
the trial of fact” and the post-conviction court’s credibility determinations are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
The evidence does not preponderate against the post-conviction court’s credibility determination
herein. The petitioner has failed to prove by clear and convincing evidence that trial counsel was
ineffective in the failing to file a motion to suppress. This issue is without merit.

                                        Victim’s Competence

         Next, the petitioner argues that trial counsel should have challenged the victim’s competence
to testify at trial.

         The evidence indicates that trial counsel reviewed the psychological report on the victim and
discussed the findings with Dr. LaBarbera prior to trial. The post-conviction court recalled the
witness and recalled its conclusion, when sitting as trial court on the matter, that the victim was
competent. Tennessee Rule of Evidence Rule 601 presumes that all witnesses are competent to
testify unless otherwise provided in the rules or by statute. Further, the determination as to whether
the victim was competent to testify was a discretionary decision of the trial court, which will not be
overturned on appeal unless the court clearly abused its discretion. State v. Hallock, 875 S.W.2d
285, 293 (Tenn. Crim. App. 1993).

        The petitioner did not present any additional proof regarding the victim’s competency beyond
that which was available at trial to establish that the trial court abused its discretion. The petitioner
failed to prove by clear and convincing evidence that trial counsel was ineffective in failing
challenge the competency of the witness. This issue is without merit.


                                                  -10-
                                         Failure to Hire Expert

       The petitioner argues that trial counsel was ineffective for failing to have the report from Our
Kids reviewed by an expert and for failing to challenge the testimony with regard to hymenal injury.

         Although, trial counsel stated that she was unaware at the time of the petitioner’s trial that
she could possibly procure funds for a State hired expert, the proof detailed that trial counsel
laboriously reviewed the medical report, consulted several treatises, and had lengthy discussions with
a medical doctor regarding the medical report and the conclusions contained therein. Trial counsel
testified that she was retained to represent the petitioner and was not provided the funds necessary
to hire an expert.

        The post-conviction court accredited the testimony of trial counsel and determined that trial
counsel did an “adequate undertaking of impeaching the State’s expert.” There was no expert
witness testimony at the post-conviction hearing indicating that such testimony could have called
into question the adequacy of the Our Kids report on hymenal injury. Further, while the petitioner
was declared indigent for purposes of the post-conviction proceeding, the record is unclear as to the
petitioner’s status during the trial of the matter. Only indigent defendants are entitled to state funds
for expert services. See Tenn. Sup. Ct. R. 13 § 5. Therefore, we find that the petitioner has failed
to carry his burden that trial counsel was ineffective on this point.

               Failure to Call Witnesses, Investigate, and Confer With the Petitioner

        Lastly, the petitioner claims that trial counsel failed to call the necessary witnesses, failed to
adequately investigate the case, and failed to confer with the petitioner. The State again argues that
the issue is without merit.

        The proof at the post-conviction hearing indicated that trial counsel met with the petitioner
several times prior to trial, received a list of potential witnesses, interviewed several potential
witnesses, spent days researching issues in the petitioner’s defense, and kept the petitioner apprised
of the defense as it evolved.

        The post-conviction court accredited the testimony of trial counsel, determining that “the
proof offered with respect to this claim was minimal at best and would not rise to the burden that the
petitioner is required to carry in accordance with Strickland.” The petitioner failed to call the
witness that he claims trial counsel was deficient in not presenting at trial. There can be no showing
of prejudice when the petitioner fails to present the testimony of the potential exculpatory witness.
The petitioner has again failed to satisfy the burden to show that trial counsel was ineffective. This
issue is without merit.




                                                  -11-
                                   Conclusion

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




                                     ___________________________________
                                     JERRY L. SMITH, JUDGE




                                       -12-
