        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                        OCTOBER SESSION, 1997           December 23, 1997

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
EDDIE CURT DAVIS,               )   C.C.A. NO. 03C01-9702-CR-00064
                                )
      Appe llant,               )
                                )
                                )   HAMILTON COUNTY
VS.                             )
                                )   HON . STEP HEN M. BE VIL
STATE OF TENNESSEE,             )   JUDGE
                                )
      Appe llant.               )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

KENNETH F. IRVINE, JR.              JOHN KNOX WALKUP
606 W. Main Street, Suite 350       Attorney General and Reporter
P.O. Box 84
Knoxville, TN 37901-0084            PETER M. COUGHLAN
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243-0493

                                    BILL COX
                                    District Attorney General

                                    BATES BRYAN, JR.
                                    Assistant District Attorney General
                                    Court Building
                                    600 Market Street
                                    Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                          OPINION

        The Petitioner, Eddie Curt Davis, appeals as of right pursuant to Rule 3 of

the Tenn essee Rules o f Appella te Proce dure from the trial court’s d enial o f his

petition for post-co nviction relief. On Nove mber 30 , 1990, a Ha milton Cou nty jury

found the Petitioner guilty of two counts of aggravated rape and one count of

aggravated sexual battery.                Th e trial court sentence d him to thirty years

imprisonment for each agg ravated rape a nd fifteen years for the aggravated

sexual battery. The fifteen-year sentence was ordered to run consecutive to the

concurrent aggravated rape sentences, resulting in an effective term of

imprisonment of forty-five yea rs. His co nviction s were affirme d by this Court on

August 26, 199 2, and the Tenn essee Supre me C ourt den ied perm ission to

appeal on December 28, 1992.1 The Petitioner filed a pro se petition for post-

conviction relief on January 7, 1993, which was amended with the assistance of

counsel on February 15, 1996. In the petition for post-conviction relief, he argues

that his due process rights were violated by conviction of an offense for which the

statute of limitations had expired and that he was denied effective assistance of

counsel at trial. 2 The trial court conducted an evidentiary hearing on April 1 and

May 20, 1996. On June 25, 1996, the trial court issued an order denying the

petition in pa rt and gra nting it in part. W e affirm the judgm ent of the tria l court.




        1
          See State v. Edd ie Cu rt Da vis, C.C.A. No. 03C01-9109-CR-00295, Hamilton County (Tenn.
Crim . App., Kn oxville, Aug . 26, 1992 ), perm. to appeal denied (Tenn. 1992).

        2
          The pro se petition also inc luded an issue co ncernin g the use of hears ay testim ony at trial.
The Petitioner chose not to pursue this issue at the post-conviction hearing. As such, we will not
address it in this opinion.

                                                     -2-
         To facilitate our discussion of the issues, we begin with a brief su mma ry

of the facts surrounding the offenses. On November 29, 1989, the Petitioner was

indicted by prese ntmen t on five cou nts of agg ravated ra pe. The alleged victims

were the minor children of his girlfriend, Rebecca Harris.3 The offenses were

alleged to have occurred between September of 1983 and January of 1989.

J.M., a young male, w as alleged to have be en pen etrated a nally and fo rced to

perform oral sex on the Petitioner. S.M., a you ng female , was alleged to h ave

been penetrated vaginally, forced to perform oral sex and to have oral sex

performed upon her.



         The Petitioner’s trial was held from November 28 to November 30, 1990.

At trial, both victims testified concerning several instances of sexual abuse. The

offenses were alleged to have occurred while the children’s mother, Rebecca

Harris, was at work. Given the young age of the victims, they were not able to

identify specific da tes on w hich the a buse h ad occ urred. Instead, they identified

the abuse mainly according to which house they were living in at the time of the

abuse. At the close of proof, the State elected to proceed on the presen tments

as charging that the offenses had occu rred betwee n Septem ber, 1984 an d July,

1986 in a house on McCahill Road in Red Bank.



         The State also presented exper t med ical test imon y at trial. D r. David

Tepper examined S.M. in August of 1989. At that time, S.M.’s hymen was not

intact. The examination of S.M. revealed evidence of repeated penetration of her

vagina. Dr. George Winterer examined J.M. in April of 1989. The examination



         3
          It is the policy of this Court no t to identify by nam e any m inor victim of sexu al offens es.
There fore, the vic tims in this case w ill be referred to as “J.M .,” “S.M.,” or “th e victims .”

                                                      -3-
of J.M. revealed nothing remarkable about his rectum and no evidence of

penetration. Dr. Winterer testified , howe ver, tha t his findings were not surprising

given the amount of time which had passed since the alleged penetration.



       The State also offered testimony from medical and law enforcement

personnel regardin g statem ents m ade to the m by the victims. These statem ents

echoed the victims’ testimony at trial concerning the instances of sexual abuse.

In addition, th e moth er of the victim s, Rebe cca Ha rris, testified ab out statem ents

made to her by her children concerning the sexual abuse. Harris also testified

that the Petitioner admitted to her that he had had sex with the victims.



       Although the Petitioner did not testify at trial, he offered te stimony from

several witnesses, all of who m were his relatives. These witnesses testified that

they never noticed anything unusual about the Pe titioner’s relationship with the

victims. The witnesses also indicated that they, not the Petitioner, babysat the

victims while Rebecca Harris was at work.



       After considering the proof, the jury acquitted the Petitioner of the charges

involving J.M., specifically the allegations that the Petitioner anally raped J.M. and

forced J.M. to perform o ral sex upon h im. The jury found the Petitioner guilty as

charged of vaginally raping S.M . and forcing her to p erform ora l sex upon him.

The jury found the Petitioner g uilty of the lesser included offense of aggravated

sexual battery with regard to the charge that he performed oral sex upon S.M.



       On January 7, 1993, the Petitioner filed a pro se petition for post-conviction

relief, arguing that his conviction for agg ravated sexua l battery violated his due

                                           -4-
process rights and that defense counsel was ineffective. Counsel was appointed

and amended the petition on February 15, 1996. Through the amended petition,

the Petitioner argued that his trial attorney, Hank Hill, rendered ineffective

assistance of counsel in a number of ways:

        (1) That counsel failed to inves tigate the c ase fully an d failed to
        interview all potential defense witnesses;
        (2) that counsel failed to present expert medical evidence to rebut
        the State’s medical proof concerning the physical condition of S.M.;
        (3) that counsel failed to emphasize the inconsistencies in the
        testimony of the victims;
        (4) that counsel refused to allow him to testify at jury-out hearings;
        and,
        (5) that counsel failed to raise several viable issues on direct
        appe al. 4

The Petitioner also argued that the statute of limitations for aggravated sexual

battery had e xpired prior to h is bein g cha rged. A s such , he co ntend ed tha t his

conviction for that offense violated his due process rights.



        The trial court conducted an evidentiary hearing on the petition for post-

conviction relief on April 1 and May 20, 199 6. On M ay 20, 19 96, the S tate

conceded that the Petitioner had been improperly convicted of aggravated sexual

battery after the sta tute of limitatio ns had expired. A ccording ly, the trial court

granted the po st-con viction p etition in that reg ard an d vaca ted the Petition er’s

conviction for the aggravated sexual battery of S.M. This ruling is not challenged

in this appeal and, therefore, we will not address the statute of limitations issue

in this opinion.




        4
          The Petitioner did not pursue allegations number four and five, that counsel refused to allow
him to testify and that counsel failed to raise viable issues on direct appeal, in this appeal from the trial
court’s order granting his petition in part and denying it in part. Thus, we will not address those
allegations in this opinion.

                                                    -5-
      At the post-conviction hearing, the Petitioner testified that defense counsel

conducted plea bargaining negotiations and received an offer of thirty years. The

Petitioner declin ed this offer, maintaining that he was innocent. He stated that

he wanted to testify a t trial, but defense counsel advised against it given that he

had a prior criminal record which would have been admitted for impeachment

purposes. Had he testified at trial, he would have informed the jury abou t a

bicycle accident which S.M. had that caused her to bleed from her vaginal area.

He would also have tes tified that he w alked in o n J.M., S.M ., and their h alf-

brother while they were in b ed together w earing only their unde rpants.          In

addition, he would have testified that he heard Rebecca Harris screaming one

time that she had caught J.M. and S.M. doing “[s]tuff they don’t supposed to be

doing that’s sister and brother.” On cross-examination, the Petitioner admitted

that although defense counsel advised aga inst his testifying , the choic e as to

whether to testify was his to make.



      The Petitioner also offered the testimony of several relatives.           They

testified that defense counsel did not talk with them prior to the day of trial. Missy

Strickland, the Pe titioner’s niece, testified that S.M. had a bicycle accident which

caused her to bleed from her vaginal area . Diane Ellenbo ck and R obin W ebster,

the Petitioner’s siblings, both testified to suggestive behavior between Rebecca

Harris and the victims which they deemed inappropriate. Joann Dunning, the

Petitioner’s mother, echoed the testimony of Ellenbock and W ebster. These

witnesses and o ther re latives a ll testified that they witnessed S.M. masturbating

repeatedly.   They all also testified that they never witnessed any unusual

behavior between the Petitioner and the victims. On cross-examination, Dunning




                                         -6-
and Webster admitted that they had been called as witn esse s at the Petition er’s

trial.



         The Petitioner’s defense attorney from trial, Hank Hill, testified at the post-

conviction hearing. Hill stated that he began practicing law in 1978 and became

an initial member of the public defender’s office in Hamilton County when it was

established in 1989. Hill recalled speaking with the Petitioner several times prior

to trial. H ill stated that either he or his investigator, Alan Miller, interviewed the

State ’s witnes ses a nd eve ry pote ntial witness suggested by the Petitioner.

According to Hill, Miller visited the various homes lived in by the Petitioner and

the victims over the yea rs alleged in the pre sentments. Hill spoke with the

medical expert who had conducted the examination of S.M., Dr. Tepper, and

asked him about the possibility of a bicycle accident causing the tearing of S.M .’s

hymen. Dr. Tepper responded that the state of S.M.’s hymen was not consistent

with a bicycle injury.



         The Petitioner maintained his innocence and Hill, given his investigation

of the case, decided to put forward a defense that although S.M. may have been

penetrated, it was not th e Petitioner who had d one so. Hill recalled tha t there

were insinuations of sexual abuse of S.M. by her half-brother who lived in Ohio.

Thus, Hill testifie d that h e did not feel a n eed to attem pt to co ntradic t Dr. Te pper’s

testimony about th e condition of S.M.’s hymen through the use of a defense

expert.



         On cross-examination, Hill freely admitted that he was overburdened with

cases during the time that he investigated and tried the Petitioner’s case . Hill

                                             -7-
testified that his caseload was well in excess of the American Bar Association

guidelines. Acco rding to Hill, the newly-established public defender’s office

simp ly did no t have th e reso urces with which to hire enou gh staff m embe rs to

main tain reasonable workloads. Hill admitted that the Petitioner would have

receive d mo re atten tion from a retain ed atto rney th an he receive d from Hill.



      In spite of his excessive caseload, however, Hill testified that the Petitioner

received quality representation. Hill did not believe that the outcome of the trial

would have been different had he not been overburdened with work. He stated

that he spoke with the Petitioner as much as he needed to and fully investigated

the case. He testified that he w as able to develop enoug h eviden ce to put forth

the Petitioner’s theory at trial, namely that another individual had been

responsible for any sexual abuse of the victims.



      After considering the evidence presented at the post-conviction hearing,

the trial cou rt entered detailed find ings of fac t and con clusions of law. In short,

the trial court did not find the Petitioner’s proof to be persuasive and instead

accredited Hank Hill’s testimony in all respects. With respect to the allegation

that defense counsel failed to investigate the cas e adequa tely, the trial court

found that either Hill or his investigator had interviewed all potential witnesses,

that Hill had conducted thorough discovery, and that Hill was prepa red for trial.

The trial court found further that the defense theory that someone other than the

Petitioner was responsible for any sexua l abus e of the victims was re ason able

and, given that theory , there wa s no ne ed to presen t expert m edical tes timony to

contradict the State’s medical proof of penetration of S.M. In addition, the trial




                                          -8-
court accredited Hill’s testimony that the Petition er was fre e to testify if he wished

to do so.



       From the evidence presented at the post-conviction hearing and a review

of the trial transcript, the trial court conc luded that H ill’s repre senta tion fell w ithin

the range o f comp etence dema nded o f attorneys in crimina l cases. The tr ial

court therefore denied the petition for post-conviction relief on ineffective

assistance of counsel grounds. It is from this order of denial that the Petitioner

now appeals. O n appe al, he con tends tha t the trial court e rred in findin g that

defense counsel adequately investigated the case and presented a competent

defense.



       In determining whether or not c ouns el prov ided e ffective a ssista nce a t trial,

the court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W .2d 930 (Tenn. 1975).           To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable re sult. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849 S.W.2d

744, 747 (T enn. 1993 ); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy this second prong the petitioner must show a reason able pro bability that,

but for cou nsel’s unrea sona ble error, the fact finder would have h ad rea sona ble

doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable




                                             -9-
probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



       When review ing trial counsel’s action s, this co urt sho uld no t use th e ben efit

of hindsight to second-guess trial strategy a nd criticize c ounse l’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the tim e it was m ade in ligh t of all facts an d circum stance s. Strickland,

466 U .S. at 690 ; see Cooper, 849 S.W.2d at 746.



       W e note that under the Post-Conviction Procedure Act applicable to the

present case, a petitioner bears the burden of proving the allegations in his or her

petition by a preponderance of the evidence. See McBe e v. State, 655 S.W.2d

191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial

court in post-con viction hearings are conclusive on appeal unless the evidence

preponderates against th em. See State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App . 1983).



       Applying the Strickland standard to the case sub judice, we believe that the

Petitioner has failed to establish that defense counsel’s representation was

constitution ally deficient. The Petitioner testified at the post-conviction hearing

that defense counsel failed to interview all potential defense witnesses and failed

to investigate the case fully. In support of his contentions, the Petitioner offered

the testim ony of s evera l relatives who s tated th at they w ere no t intervie wed by

defense counsel until the day of trial. In contrast, defense counsel testified that

either he or his investigator interviewed all witnesses suggested by the Petitioner

and that he investigated all relevant aspects of the case.

                                           -10-
      After hearing all of the evidence and evaluating credibility, the trial court

accredited the testimony of the Petitioner’s defense counsel, Hank Hill. Thus, the

trial court found that the evidence did not support the Petition er’s allegations of

ineffective assistance of counsel for failure to investigate. The trial cou rt was in

a much better position to evaluate the credibility of the witnesses than this C ourt.

The trial court found Hank Hill’s testimony to be p ersuasive an d therefore

concluded that the Petitioner had not established that Hill’s representation was

cons titutiona lly deficient. From the record before us, we cannot conclude that the

evidence preponderates against the trial court’s findings.



      On appeal, the Petitioner also contends that the trial court erred in finding

that defense counsel presented a competent defense.             With regard to the

allegation in the post-conviction petition that defense counsel failed to present

medical evidence to rebut the State’s medical proof concerning the physical

condition of S.M., we conclude that the Petitioner has not carried his burden of

establis hing that defense counsel’s representation was deficient. At trial, the

State presented expert testimony that the condition of S.M.’s hymen indicated

that she had been repeatedly penetrated. Defense counsel testified that he did

not challenge this testimony because the defense the ory was not that S.M. had

not been penetrated, but rather that the P etitioner had not pe netrated her.

Moreover, the Petitioner’s complaint that proof of a bicycle accident causing an

injury to S.M .’s vagin al area was n ot brou ght forth at trial is unfounded. Our

reading of the trial transcript indicates that this issu e was raised during the

testimony of D r. David Tep per.




                                        -11-
       The Petitioner also alleged that defense counsel presented an incompetent

defense in that he fa iled to emp hasiz e the in cons istenc ies in the testimony of the

victims and their mother. The trial record, however, is replete with examples of

cross-examination by defense cou nsel fo cusin g on in cons istenc ies in th eir

testimony. For example, defense counsel repeatedly questioned S.M. about the

number of instances of sexual abuse, often resulting in conflicting answers.

Furthermore, defense counsel effectively emphasized the fact that the mother of

the victims, Rebecca Harris, gave conflicting answers as to when and how she

initially discover ed the se xual abu se. We therefore conclude that the Petitioner

has failed to carry h is burden of dem onstra ting tha t defen se co unse l’s

representation was constitutionally deficient with regard to the presentation of a

competent defense.



       W e note th at on a ppea l, the Pe titioner ra ises an issue n ot pres ented in his

petition for post-conviction relief. He conten ds that the trial court at the post-

conviction hearing improperly restricted his examination of witnesses and

presentation of evidence. In particular, he complains that the trial court restricted

his cross-e xamina tion of Ha nk Hill with re gard to Hill’s questioning of the S tate’s

witnesses about inconsistencies in their testimony. Moreover, he complains that

the trial court restricted his own testimony about what he wo uld have tes tified to

at trial had he chosen to testify. Furthermore, he complains that the trial judge

impro perly interjected himself in the post-conviction hearing by questioning the

Petitioner’s witnesses.



       It is well-established that rulings on the admissibility of evidence and the

propriety and form of examination of witnesses are entrusted to the sound

                                          -12-
discretion of the trial court. See, e.g., State v. Hutchison, 898 S.W.2d 161, 172

(Tenn. 1994), cert. denied, 116 S.C t. 137, 133 L.Ed.2d 84 (199 5); State v. Harris ,

839 S.W .2d 54, 72 (Tenn . 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122

L.Ed.2d 746 (1993). Such rulings will not be reversed on appea l absent an

abuse of that discre tion. See State v. Caughron, 855 S.W.2d 526, 541 (Tenn.

1993), cert. denied, 510 U.S. 57 9, 114 S.C t. 475, 126 L.Ed .2d 426 (199 3).



       The record from th e pos t-conv iction h earing revea ls that at one point when

the Petitioner was cross-examining Hank Hill about whether he had emphasized

to the jury certain in consiste ncies in R ebecc a Harris’ s tateme nts, the trial co urt,

in response to an objection by the assistant district attorney general, commented

as follows:

              W ell, I just -- I don’t -- I’m not going to let you go into this
       entire case and ask him [Hank Hill] about everything that you might
       have done differently or you think that he should have done. You
       know, we’ll be here for the rest of six months if you go thro ugh th is
       entire case an d say, well, when you asked this qu estion , shou ldn’t
       you have asked a different question, or did you look at this, and go
       through every finite detail of this case.
              The question is whether or not -- an d Mr. H ill has am ply
       stated several tim es that he did everyth ing he felt h e could d o to
       represent this client and thought he got a fair trial, and he felt like
       even if he had had more time and more assistance, it wouldn’t have
       made any difference, and whether -- the test as to whether or not he
       was effective ly repre sentin g him is not whether he would have done
       everything the way some other lawyer might have done it, but was
       whether or not he rendered assistance that was within the range of
       competence deman ded by attorn eys in crim inal ca ses a t this
       particular tim e, and tha t’s the issue before th e Cou rt.

The Petitioner agree d with th e trial co urt’s statements and then continued cross-

examination of Hank Hill by asking him about inconsistencies in Dr. Tep per’s

testim ony at tr ial.




                                           -13-
       From these circumstances, we cannot conclude that the trial judge abused

his discretion in controlling the examination of Hank Hill. The Petitioner was

allowed to raise as an issue tha t Hill was ineffective for failing to emphasize the

inconsistencies in Rebecca Harris’ testimony. With this issue in mind, the trial

court reviewed the trial transcripts containing Harris’ testimony prior to ruling on

the post-c onvictio n petitio n. Thu s, it appea rs that the P etitioner wa s, in fact,

permitted to raise the issue and that the trial court possessed and reviewed the

evidence necessary to rule upon the issue.



       With regard to the complaint that the trial court improperly restricted the

Petitioner’s own testimony about what he would have testified to at trial had he

chosen to testify, we conclude that the issue provides no basis for relief for the

Petitioner. At the p ost-co nviction hearing, the Petitioner testified that he heard

Rebecca Harris screaming that she had caught S.M. and J.M. doing “[s]tuff they

don’t suppose d to be doing th at’s sister and brothe r.” At that point, the trial court

cut off the Petitioner’s testimony, noting that he was testifying to hearsay

evidence which wou ld not have been admitted at trial. On appeal, the Petitioner

challenges the trial court’s restriction of his testimony, arguing that the hearsay

evidence would have been admissible pursuant to the excited utterance

exceptio n. See Tenn. R . Evid. 803(2).



       Regardless of the propriety of the trial court’s restriction of the Petition er’s

testimony at the post-conviction hearing, we do not believe that this issue

provides relief for the Petitioner. The testimony at issue in the post-conviction

hearing related to what the Petition er would have tes tified to had he cho sen to

testify at trial. Th e Petitio ner initia lly claim ed in h is post-conviction petition that

                                           -14-
defense coun sel pre ssure d him not to testify. On cro ss-exam ination at th e post-

conviction hearing, however, the Petitioner admitted that defen se co unse l mere ly

advised him not to testify because of his prior record and that the decision as to

whether to testify was his to make. The Petitioner chose not to testify at trial.

Thus, the su bstan ce of w hat he would have te stified to at trial had he chosen

differen tly does not su pport h is claim of ineffe ctive as sistan ce of c ouns el.



       With regard to the complaint that the trial judge improperly interjected

hims elf in the post-conviction hearing by questioning the Petitioner’s witnesses,

we conclude tha t the trial court did not err. The Petitioner challenges the fact that

the trial judge asked additional questions of some of the Petitioner’s witnesses

at the po st-con viction h earing . The P etitione r’s argument ignore s the p rinciple

that the trial cour t has disc retion to inte rrogate w itnesses . See Tenn . R. Evid.

614(b). Our review of the record indicates that the trial court’s questions were

relevant and did not exhibit an unfair bias. Thus, we conclude that the trial judge

did not abuse his discretion by posing limited questions to some of the

Petitioner’s witnesses at the post-conviction hearing.



       For the reasons set forth in the discussion above, we conclude that the

Petitioner has failed to dem onstrate that the trial court erred in denying the

petition for pos t-conv iction re lief on ineffective assistance of counsel grounds.

We therefore affirm the ju dgme nt of the trial co urt.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



                                           -15-
CONCUR:



___________________________________
GARY R. WADE, JUDGE



___________________________________
JERRY L. SMITH, JUDGE




                             -16-
