         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs August 16, 2005

              SCOTT BRADLEY PRICE v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Knox County
                           No. 76038    Mary Beth Leibowitz, Judge



                    No. E2004-02718-CCA-R3-PC - Filed December 16, 2005


Petitioner, Scott Bradley Price, appeals the denial of his petition for post-conviction relief by the
Knox County Criminal Court. Petitioner was convicted for rape of a child and sentenced as a Range
I offender, to twenty-one years at one hundred percent, to be served in the Tennessee Department
of Correction. On direct appeal, Petitioner challenged only the length of his sentence. This Court
affirmed that judgment on November 19, 2001. State v. Scott Bradley Price, No. E2000-00441-
CCA-R3-CD, 2001 WL 1464555 (Tenn. Crim. App. Nov. 19, 2001). Petitioner filed a pro se
petition for post-conviction relief. The petition was subsequently amended by appointed counsel.
In his appeal, Petitioner argues that he was denied effective assistance of counsel because (1) trial
counsel did not investigate Petitioner’s claims that his audio recorded confession was materially
altered; (2) trial counsel did not advise Petitioner to testify in order to rebut the State’s evidence; and
(3) trial counsel did not use available medical records to challenge the accuser’s testimony at trial.
We affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ROBERT W. WEDEMEYER , JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Scott Bradley Price.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Kevin Allen, Assistant District Attorney General, for
the appellee, the State of Tennessee.

                                               OPINION

I. Background

       The facts of this case, as developed at the post-conviction hearing and taken in a light most
favorable to the State, are as follows:
        Petitioner was convicted of raping a twelve-year-old child. The victim was a neighbor who
had come to Petitioner’s house to borrow some sugar. Upon entering the home, Petitioner pulled
the victim into the bathroom and proceeded to remove her shorts and underpants. Petitioner laid on
top of the victim, began touching her, and forced her to have sexual intercourse with him. The
victim was shocked and scared and consequently did not scream or fight Petitioner during the
incident. The incident lasted approximately five to ten minutes. After it was over, Petitioner
instructed the victim not to tell anyone. The victim, upset and crying, left Petitioner’s house and ran
to her own home.

         Upon reaching her house, the victim told her aunt what had happened. A friend of her aunt’s
called the police and a police officer and an ambulance came to the victim’s residence. The victim
was taken to the hospital and given a medical examination but refused to allow the doctor to
complete it. The medical record, which was not introduced at trial, shows that the victim had no
lesions, no abrasions, and no lacerations. It also shows that the victim had a “redundant hymen,”
indicating the hymen remained intact after the incident. A rape kit was also administered and given
to the crime lab, but was not processed because Petitioner subsequently confessed to having sex with
the victim.

        Petitioner’s confession was audio recorded by the investigating officer and introduced at trial.
A transcript of the tape reveals that Petitioner admitted to having sex with the victim, but he asserted
that the victim was the initial “aggressor.” Petitioner stated that he began having intercourse with
the victim but realized what he had done and immediately stopped. Petitioner did not testify at trial
and did not present any evidence.

II. Post-Conviction Hearing

         At the post conviction hearing, Petitioner testified that his appointed trial counsel, Laura
Hendricks, now Laura Rule, represented him for ten to eleven months. Petitioner testified that in
that time period, he met with counsel only one time. During that meeting, Ms. Rule played for
Petitioner his audiotaped confession in which he admitted to Officer Pressley that he had sexual
intercourse with a twelve-year-old child. Petitioner testified that he complained that the taped
confession was materially altered and requested that trial counsel have the tape tested for alterations.
Specifically, he claimed that the questions and answers in the recorded confession had been
rearranged, making it sound as though he admitted to having actual intercourse with the child when
in reality he only made initial advances but did not complete the act. Petitioner told his trial counsel
that he never told Officer Pressley that he penetrated the victim in any way. He told his trial counsel
that when he answered Officer Pressley’s questions, the officer would wrap a sentence around his
answer to make it different. Petitioner testified that Ms. Rule told him that testing the tape was not
possible. He further claimed that after his conviction, Ms. Rule informed Petitioner that the tape
could have been tested if he had paid her. The actual tape was not available at the post-conviction
hearing, and it is thus not available on appeal.




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        Petitioner complained that he never discussed trial strategy with Ms. Rule, other than being
told that his only option was to serve fifteen years in prison at (85%) eighty-five percent. The only
physical evidence Petitioner saw was the victim’s medical record. Petitioner testified that he found
the record significant because it revealed that the accuser had a redundant hymen. During the trial,
he informed his attorney that he wanted to testify regarding the taped confession and his version of
the events that occurred on the day of the incident. Petitioner admitted at the post-conviction hearing
that he was aware that his prior convictions could be used to impeach his credibility during cross-
examination, but he believed that he had done nothing wrong in this case and insisted that he be
allowed to testify. Petitioner testified that his trial counsel advised him that if he testified it might
do more to hurt his case than to help and that his testimony was not part of her strategy. Petitioner
did not testify, and he did not inform the trial court that he wanted to testify.

        Laura Rule testified that she had been a full-time practicing attorney since October of 1990.
For at least the first eight years of her practice, seventy-five percent of her caseload consisted of
criminal defense work. At the time of the post-conviction hearing, she was the Blount County Staff
Attorney for Legal Aid of East Tennessee. At the time of Petitioner’s trial, Ms. Rule was primarily
practicing criminal law in Knox County and throughout East Tennessee. She regularly accepted
appointments to represent indigent clients. She was appointed to represent Petitioner in the summer
of 1998.

         Ms. Rule testified that she met with Petitioner on approximately four occasions. She talked
with Petitioner by telephone several times, and talked to his wife on a daily basis. She stated that
she met with Petitioner shortly after being appointed to represent him. She met with him again prior
to the suppression hearing, immediately after the suppression hearing, and prior to going to trial.
Despite having heard the tape previously, it was only after the suppression hearing that Petitioner
first told Ms. Rule that he believed that the audiotaped confession had been altered. Prior to the
suppression hearing, Petitioner told Ms. Rule that he was intoxicated the night that he gave his
statement, and that he had no recollection at all of anything on the tape, nor would he have
voluntarily given the statement. Consequently, Ms. Rule scheduled another meeting with Petitioner
to listen to the tape again and discuss Petitioner’s new found knowledge of what he said during the
taped confession.

         Petitioner admitted that he had confessed to sexual intercourse with the victim. He asserted
however, that certain other statements on the tape had been taken out of context or removed.
Petitioner explained that there were missing portions of the tape in which he stated that the victim
had seduced him and that he was unaware that she was only twelve years old. Petitioner wanted to
have an expert test the tape to determine if it had been materially altered. Petitioner never claimed
that his words had been changed inside the tape. He claimed only that certain statements explaining
his conduct had been removed.

        Ms. Rule explained to Petitioner that because he admitted that he had sex with a twelve-year-
old child, it did not matter that the other statements may have been removed because those omitted
statements were not exculpatory given the nature of the crime. She further explained that if the tape


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were tested and none of the omitted statements altered the incriminating statement, it would be worse
for Petitioner because then there could be an expert on the stand testifying that Petitioner raped the
child. Ms. Rule testified that Petitioner never denied having sex with the victim. Petitioner’s
position was always that he had sex with the victim, but she initiated the sex, and that once he
realized what he had done, he immediately stopped. Ms. Rule denied telling Petitioner that if he had
paid her, the tape could have been tested.

        Ms. Rule was notified of the victim’s medical exam and she shared the results with
Petitioner. She advised Petitioner that she did not think the report should be introduced at trial
because it contained statements which incriminated him in the rape of the victim. Ms. Rule
acknowledged that the statements in the report were consistent with the victim’s trial testimony, but
she did not want to reinforce that information to the jury in writing. She advised Petitioner that the
victim’s redundant hymen was insignificant because it did not prove that she had not had sex. This
was of particular importance because Petitioner had consistently maintained that the victim was
sexually active on a regular basis.

         The State made offers to settle with Petitioner on more than one occasion. Ms. Rule did not
remember the exact nature of the offers, but did recall the final offer made on the day of trial. That
offer was an agreement wherein Petitioner would plead to one count of child rape and serve fifteen
years, and the second count of child rape would be dismissed. She and Petitioner discussed what the
proof would show at trial and Petitioner gave a qualified acceptance. He wanted to remain out of
jail until his wife gave birth to their child. The State would not agree to the arrangement.

         On the day of trial, Petitioner informed Ms. Rule that he wanted to hire a new attorney. The
new attorney was not present but Ms. Rule notified the trial court of Petitioner’s wishes and they
proceeded to trial. According to Ms. Rule, it was absolutely Petitioner’s decision whether to take
the stand at trial. She advised Petitioner that he had an absolute right to testify. She advised him that
if he testified the jury would be made aware of his prior convictions. Ms. Rule told Petitioner that
the outcome of the trial would largely depend on whether the jury believed him. She also told
Petitioner that she thought his testimony would do more damage than good. Ms. Rule advised
Petitioner that she was prepared to do a direct examination if he chose to testify. Petitioner elected
not to testify. Ms. Rule obtained a private investigator to interview all the people Petitioner wanted
interviewed both for trial and for the sentencing hearing. None of the evidence recovered from these
witnesses amounted to a defense, and none of these witnesses testified at trial.

         Mr. Russell Greene was appointed to represent Petitioner at his sentencing hearing, in his
motion for new trial, and in his motion for acquittal. He also started Petitioner’s direct appeal before
it was taken over by Mr. Gerald Gulley. Mr. Greene testified that he had been a licensed, practicing
attorney since 1997, and during that time his practice had been ninety-nine percent criminal defense.
Mr. Greene was appointed to represent Petitioner after the court granted Ms. Rule’s motion to
withdraw as counsel.




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        Mr. Greene and Petitioner discussed three issues to be raised in Petitioner’s motion for new
trial. The first was an allegation by Petitioner that the foreman of the jury polluted his trial because
of a prior relationship between Petitioner and the foreman. Mr. Greene was not able to uncover
evidence to support this allegation. The second issue was in regard to a rape kit which was
administered to the victim but never processed. The district attorney at the time cited Petitioner’s
confession as the reason the rape kit was never processed. The third issue dealt with Petitioner’s
allegations that his audiotaped confession had been materially altered. It was Petitioner’s contention
that the tape had been spliced and his answers to certain questions had been altered.

        Petitioner told Mr. Greene that the tape had been altered in that his answers were changed
and taken out of context. Petitioner also told Mr. Greene that he had been drinking and smoking
before giving his confession and that his memory was fuzzy regarding his answers to the detective’s
questions. Mr. Greene gave Petitioner a copy of the transcript of the audiotaped confession and had
him mark the transcript in the areas Petitioner thought were suspect. Petitioner’s marks were
significant and Mr. Greene tried but was unable to find someone local to examine the tape for
alterations. He finally found someone in Iowa who could examine the tape for approximately sixteen
hundred dollars. Mr. Green petitioned the court of criminal appeals for money to test the tape but
the court denied such an allowance. He then asked Petitioner’s father for the money and his father
also refused. It was never possible to test the tape because Petitioner could not come up with the
money. For this reason, the issue of the altered tape was not raised in the motion for new trial.

        Mr. Gerald Gulley testified that he had been a practicing attorney since 1989, doing a mixture
of civil and criminal work. From the late 1990's through 2001, he contracted with the Tennessee
Public Defender’s Conference to write appellate briefs for indigent criminal defendants. Mr. Gulley
was appointed to handle Petitioner’s appeal. Mr. Gulley spoke with Mr. Greene about the issues
raised in the motion for new trial. He went to the Northeastern Correctional Complex to meet with
Petitioner in 2001. During the post-conviction hearing, Mr. Gulley testified that he explained to
Petitioner that the issues Petitioner could raise on direct appeal were limited to those issues raised
in the motion for new trial, thus the altered tape could not be argued on appeal. He explained to
Petitioner that the best place to pursue that issue was in a post-conviction hearing. A sentencing
challenge was the only non-frivolous issue Mr. Gulley felt Petitioner could legitimately raise on
direct appeal.

III. Standard of Review

         Petitioner asserts that trial counsel was ineffective in that she did not investigate his claims
that the audio recorded confession was materially altered; that she did not advise Petitioner to testify
in order to rebut the State’s evidence; and that she failed to use the medical record which revealed
the accuser’s hymen remained “redundant” or intact after the incident.

        To sustain a petition for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See T.C.A. § 40-30-110(f)
(1995); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). The post-conviction court’s findings of


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fact are conclusive on appeal unless the evidence preponderates otherwise. See State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). We afford those findings of fact the weight of a jury verdict, and this
Court is bound by the post-conviction’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 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, 766-67 (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.

        For a petitioner to successfully overturn a conviction based on ineffective assistance of
counsel, the petitioner must establish that counsel’s performance was deficient, and that the
deficiencies in performance were prejudicial and “actually had an adverse effect on the defense.”
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To be
deficient, the services rendered must be below the range of competence demanded of attorneys in
criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936-37 (Tenn. 1975). Defense counsel “must
perform at least as well as a lawyer with ordinary training and skill in the criminal law and must
conscientiously protect his client’s interests, undeflected by conflicting considerations.” Beasley v.
United States, 491 F.2d 687, 696 (6th Cir. 1974).

        In reviewing whether counsel’s performance was deficient, a “fair assessment of attorney
performance requires that every effort 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. In order to establish prejudice, the
petitioner must show that a reasonable probability exists that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

        It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697. We review the post-conviction court’s factual findings underlying a claim of ineffective
assistance of counsel under a de novo standard with a presumption that those findings are correct,
unless the preponderance of the evidence establishes otherwise. Burns, 6 S.W.3d at 461. However,
the post-conviction court’s conclusions of law, such as whether counsel’s performance was deficient
or whether that deficiency was prejudicial, are reviewed under a de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001) (citations omitted).

IV. Analysis

        Petitioner first claims that trial counsel was ineffective because she failed to investigate
Petitioner’s claims that his audio confession was materially altered. Ms. Rule testified that in her
opinion it was not the best strategy to have the tape tested. She explained that although Petitioner


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claimed some of the statements in the tape had been altered, he could not deny his statement
admitting he had sex with the victim. Ms. Rule further explained that given the nature of the crime,
the allegedly altered statements would not be mitigating in light of the admission. Those statements
included Petitioner’s assertions that he was unaware of the victim’s age, and that the victim actually
seduced him. It was Ms. Rule’s testimony that she felt that if the tape was tested and Petitioner’s
admission was unaltered, it would be detrimental to his case to have an expert on the stand testifying,
in effect, that Petitioner raped the child.

         After a review of the trial transcript, the post-conviction court found that only Petitioner
raised claims regarding the authenticity of the tape. The court noted that on different occasions
Petitioner told two different attorneys that he was so intoxicated that he could not remember his
confession to the investigating officer. The post-conviction court found that Ms. Rule’s decision not
to test the tape did not fall below the obligations of counsel as set forth in Strickland v. Washington.
The fact that Ms. Rule’s trial strategy was not favorable to Petitioner is not indicative of deficient
performance. It was a strategic and tactical choice not to test the tape, and we will not attempt to
second-guess counsel’s course of action. See State v. Martin, 627 S.W.2d 139, 142 (Tenn. Crim.
App. 1981) (“This, too, is a matter of strategy, and tactics upon which we will not attempt to ‘second
guess’ counsel.”); see also Strickland, 466 U.S. at 690. Based on our review, we conclude that the
evidence does not preponderate against the post-conviction court’s finding that trial counsel rendered
effective assistance in this regard. Petitioner is not entitled to relief on this issue.

         Petitioner next argues that trial counsel was ineffective in not advising Petitioner to testify
in order to rebut the audio taped confession offered by the State. Petitioner contends that without
his testimony or any physical evidence to rebut the taped confession, the State’s evidence was left
unchallenged and the jury had no choice but to convict him. Ms. Rule testified that she told
Petitioner that it was his choice whether to testify at trial. She admitted that she told Petitioner it
would do more harm than good because it would raise issues regarding Petitioner’s credibility due
to his prior criminal record. Ms. Rule told Petitioner that she was prepared to conduct a direct
examination if he wanted to testify. Petitioner admitted that trial counsel did not instruct him not
to testify, but that she implied that if he did testify he would be convicted. He stated that he
understood that he could testify, but thought that it was trial counsel’s ultimate decision because she
was the attorney and knew about the law. Petitioner never informed the trial court of his desire to
testify or of any limitation trial counsel placed on his right to testify.

         The post-conviction court found insufficient proof to show that Petitioner was forcefully
denied his right to testify. The court found the proof indicated that it was Petitioner’s choice not to
testify due to his prior criminal record. As stated above, “questions of credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in evidence are matters entrusted
to the trial judge as the trier 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, 22-23 (Tenn. 1996). The post-conviction court accredited the testimony of trial counsel. The
evidence in the record does not preponderate against the post-conviction court’s credibility
determination. The petitioner has not proven by clear and convincing evidence that Ms. Rule was


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ineffective by denying him the right to testify on his own behalf. We parenthetically note that
Petitioner’s trial occurred in April of 1999, prior to the release of the decision in Momon v. State,
which requires a jury-out hearing, on the record, indicating that Petitioner knowingly and voluntarily
waives his fundamental constitutional right to testify. Momon v. State, 18 S.W.3d 152, 161-62.

        Finally, Petitioner claims that trial counsel was ineffective in that she did not use the
available medical record which revealed that the victim had a redundant hymen after the incident.
Petitioner asserts that the redundant hymen would have served as corroborative evidence to his claim
that he did not penetrate the victim. Ms. Rule asserted that she did not use the medical record
because it contained statements incriminating Petitioner in the rape of the victim. She also explained
that a redundant hymen is not conclusive as to whether a woman has had sex. Additionally,
Petitioner had consistently maintained that the victim was sexually active and he never denied having
sexual intercourse with the victim. Ms. Rule reasoned that it would be more detrimental to give the
jury a sheet of paper which contained written statements from the victim that she was raped by
Petitioner, than to withhold the fact of the redundant hymen. Ms. Rule testified that she did not want
to give the jury something that would enforce Petitioner’s guilt upon the jury.

        The post-conviction court, by its finding of effective assistance of counsel, implicitly found
that the decision to withhold the medical record from evidence was not indicative of deficient
performance by trial counsel. Again, it was a reasoned, strategic decision, and one Ms. Rule
undertook in an apparent effort to protect Petitioner’s interests. She declined to use the medical
record as evidence in an effort to prevent giving the jury written evidence confirming Petitioner’s
guilt. Such a tactical decision will not be second-guessed or undermined by this Court. See State
v. Martin, 627 S.W.2d at 142. As such, we find that the evidence does not preponderate against the
post-conviction court’s findings that Ms. Rule was not ineffective in failing to introduce the medical
record into evidence.

                                          CONCLUSION

       We conclude the evidence presented by Petitioner does not preponderate against the post-
conviction’s finding that trial counsel’s performance was not deficient and did not fail to comply
with the obligations of counsel under Strickland v. Washington. Accordingly, the judgment of the
post-conviction court is affirmed.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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