            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                               AT KNOXVILLE
                                                                   January 14, 2000

                           NOVEMBER 1999 SESSION               Cecil Crowson, Jr.
                                                              Appellate Court Clerk




ROGER CLAYTON DAVIS,               *
                                       C.C.A. No. 03C01-9902-CR-00076
      Appellant,                   *
                                       McMinn County
v.                                 *
                                       Honorable Stephen M. Bevil, Judge
STATE OF TENNESSEE,                *
                                       (Post-Conviction)
      Appellee.                    *




FOR THE APPELLANT:                     FOR THE APPELLEE:

Julie A. Rice                          Paul G. Summers
P. O. Box 426                          Attorney General & Reporter
Knoxville, TN 37901-0426
(On Appeal)                            Ellen H. Pollack
                                       Assistant Attorney General
Thomas E. Kimball                      425 Fifth Avenue North
Assistant Public Defender              Nashville, TN 37243-0493
110½ East Washington Avenue
Athens, TN 37303                       Jerry N. Estes
                                       District Attorney General

                                       William W. Reedy
                                       Assistant District Attorney General
                                       130 Washington Avenue, N.E.
                                       P. O. Box 647
                                       Athens, TN 37371-0647
                                       District Attorney General




OPINION FILED: _____________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                        OPINION


       The petitioner, Roger Clayton Davis, appeals as of right from the McMinn County

Criminal Court’s dismissal of his petition for post-conviction relief wherein he claimed

ineffective assistance of counsel in his 1988 trial, which resulted in his convictions of five

counts of rape and one count of aggravated kidnapping. Based upon our review, we affirm

the trial court’s dismissal of the petition.



                              PROCEDURAL BACKGROUND

       The petitioner is presently serving consecutive sentences totaling eighty-five years

in the state penitentiary as a Range I standard offender. The offenses for which he was

convicted occurred in January 1987. Petitioner appealed his 1988 conviction by the

McMinn County jury, and this court affirmed the conviction but remanded for resentencing.

See State v. Roger Clayton Davis, No. 170, 1989 WL 112748 (Tenn. Crim. App., Knoxville,

Sept. 29, 1989), perm. app. denied (Tenn. 1990).



       Following his resentencing, petitioner appealed the judgment of the trial court

sentencing him to one hundred forty years. That sentence was modified by this court to

eighty-five years as a Range I standard offender. See State v. Davis, 825 S.W.2d 109

(Tenn. Crim. App. 1991), perm. app. denied (Tenn. 1992). Petitioner filed his first post-

conviction relief petition on January 4, 1993. This court sustained the trial court’s dismissal

of his petition without a hearing. See Roger Clayton Davis v. State, No. 03C01-9308-CR-

00265, 1993 WL 523654 (Tenn. Crim. App., Knoxville, Dec. 16, 1993), perm. app. denied

(Tenn. 1994). Petitioner filed a second petition for post-conviction relief on June 20, 1994,

which was dismissed by the trial court without a hearing. On appeal to this court, we held

“that the petition alleges a colorable claim for relief and that the trial court improperly

dismissed the petition without first appointing an attorney, allowing appropriate

amendments, and then determining if an evidentiary hearing was warranted.” Roger

Clayton Davis v. State, No. 03C01-9409-CR-00323, 1995 WL 509422, at *1 (Tenn. Crim.

App., Knoxville, Aug. 29, 1995).



                                               2
       Following a remand to the trial court of the petitioner’s second petition for post-

conviction relief, a hearing was held on January 5, 1999. The second petition for post-

conviction relief was dismissed by order of the post-conviction court on January 22, 1999.

Petitioner timely appealed to this court, and it is this appeal which we now review.



                                           FACTS

       The opinion of this court following the petitioner’s direct appeal of his conviction set

out the facts of the case:

              On a cold January evening the victim was walking along the
              streets of Knoxville from her place of residence at a family
              crisis center approximately one mile to her former apartment,
              when she accepted the appellant’s offer to drive her to the
              apartment. The victim protested immediately when Appellant,
              whom she did not know, did not drive in the direction of her
              destination. He drove to a trailer at a construction site in
              McMinn County, where he forced her to disrobe. Then, he
              drove her, naked and bound, to a convenience store, where
              she escaped by crawling through the car window and obtaining
              refuge inside the store while the appellant was buying beer.
              En route to the trailer, at the trailer and in the convenience
              store parking area, the appellant physically forced the victim to
              perform five separate acts of fellatio.

Davis, 1989 WL 112748, at *1. On November 8, 1987, while the petitioner was being held

in the Loudon County Jail prior to his trial on the kidnapping and rape charges, he escaped

on his black Yamaha motorcycle and ran into a police car that was stopped to block his

escape. He was taken by helicopter to Fort Sanders Regional Medical Center for

evaluation and treatment. He subsequently claimed that he suffered from amnesia as a

result of the accident. The Fort Sanders Regional Medical Center report stated: “The

patient had an obvious fracture of the left hip and of the right wrist and of the left hand.

Multiple lacerations about the left ear with some blood in the ear as well as some other

lacerations. The patient was seen by Dr. Finelli, neurosurgeon, and received a thorough

neurological work up.”




                                              3
                                         ANALYSIS

       Petitioner presents the following allegations to support his petition for post-

conviction relief based on the claim of ineffective assistance of counsel:

              1.   Failure of counsel to take any remedial action based
                   on petitioner’s medical condition;

              2.   Failure of counsel to request a change of venue;

              3.   Failure of counsel to determine which of petitioner’s
                   prior convictions might be used to impeach him in
                   order that he might make an informed decision
                   whether to exercise his right to testify at trial;

              4.   Failure of counsel to call witnesses in his behalf; and

              5.   Failure of counsel to investigate the victim’s
                   background for the purpose of substantiating
                   petitioner’s claimed defense that the victim was a
                   prostitute who solicited him.



       In order to determine the competence of counsel, Tennessee courts have applied

standards developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905

(Tenn. Crim. App. 1997), perm. app. denied (Tenn. 1998) (noting that the same standard

for determining ineffective assistance of counsel that is applied in federal cases also

applies in Tennessee). The United States Supreme Court articulated the standard in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which is

widely accepted as the appropriate standard for all claims of a convicted petitioner that

counsel’s assistance was defective. The standard is firmly grounded in the belief that

counsel plays a role that is “critical to the ability of the adversarial system to produce just

results.” Id. at 685, 104 S.Ct. at 2063. The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance
              was deficient. This requires showing that counsel made errors
              so serious that counsel was not functioning as the “counsel”
              guaranteed the defendant by the Sixth Amendment. Second,
              the defendant must show that the deficient performance
              prejudiced the defense. This requires showing that counsel’s
              errors were so serious as to deprive the defendant of a fair
              trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. at 2064. The Strickland court further explained the meaning of

“deficient performance” in the first prong of the test in the following way:

              In any case presenting an ineffectiveness claim, the
              performance inquiry must be whether counsel’s assistance

                                              4
               was reasonable considering all the circumstances. . . . No
               particular set of detailed rules for counsel’s conduct can
               satisfactorily take account of the variety of circumstances
               faced by defense counsel or the range of legitimate decisions
               regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S.Ct. at 2065. Petitioner must, therefore, establish that “the advice given

or the service rendered was not within the range of competence demanded of attorneys

in criminal cases[.]” Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.), perm.

app. denied (Tenn. 1991).



        As for the prejudice prong of the test, the Strickland court stated: “The defendant

must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694, 104 S.Ct. at 2068; see also Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994)

(holding that petitioner failed to establish that “there is a reasonable probability that, but for

counsel’s errors, the outcome of the proceedings would have been different”).



       Finally, the Strickland court stated what it deemed a critical point:

               Most important, in adjudicating a claim of actual
               ineffectiveness of counsel, a court should keep in mind that the
               principles we have stated do not establish mechanical rules.
               Although those principles should guide the process of decision,
               the ultimate focus of inquiry must be on the fundamental
               fairness of the proceeding whose result is being challenged.

Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Courts need not approach the Strickland

test in a specific order or even “address both components of the inquiry if the defendant

makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.



       By statute in Tennessee, the petitioner at a post-conviction relief hearing has the

burden of proving the allegations of fact by clear and convincing evidence. See Tenn.

Code Ann. § 40-30-210(f) (1997). A petition based on ineffective assistance of counsel

is a single ground for relief, therefore all factual allegations must be presented in one claim.

See Tenn. Code Ann. § 40-30-206(d) (1997). “A bare allegation that a constitutional right

has been violated and mere conclusions of law shall not be sufficient to warrant any further

                                                5
proceedings. Failure to state a factual basis for the grounds alleged shall result in

immediate dismissal of the petition.” Id.; see also Cone v. State, 927 S.W.2d 579, 581

(Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996) (holding petitioner’s claim that

issues raised in a second petition were “novel” failed as “vague and conclusory”).



       Finally, we note that when post-conviction proceedings have included a full

evidentiary hearing, the trial judge’s findings of fact and conclusions of law are given the

effect and weight of a jury verdict, and this court is “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 the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App.), perm. app. denied (Tenn. 1990).



                            A. Petitioner’s Mental Condition

       First, petitioner asserts that, while he was at the Tennessee State Prison in

Nashville prior to his trial, he was treated for attempted suicide and severe depression; he

was given multiple medications on a daily basis; and no medications were provided for him

during the time he was held in the McMinn County Jail at the time of his trial. He claims

to have brought this situation to the attention of counsel, but counsel failed to request a

continuance or request that he be provided with his medications.



       The only testimony introduced at the hearing to show that the petitioner lacked

capacity to stand trial because of depression or other medical problems was the testimony

of the petitioner’s mother and ex-wife. Petitioner’s mother testified that during the trial her

son “just wasn’t his self” and that “he didn’t act like he hardly recognized me. . . . He just

stared, and I take it it’s from the concussion that he had, or the medication they had him

on or something. He was not my son.” The petitioner’s ex-wife also testified that when she

saw him prior to the trial, “he wasn’t the same.”



       The petitioner’s appointed counsel, whose legal service is the subject of this petition

for post-conviction relief, testified to the following during the hearing on this matter:


                                              6
                Q [by General Reedy]. Okay. Now, memory loss or failure to
                recall certain events that occurred sometime in the past is one
                condition we can be familiar with, and I think everybody in the
                general population is familiar with people who make those
                claims, but as to what was played here by some of his family
                members that he was disoriented, that he was not aware of the
                events around him, not able to identify persons, just “out of it.”
                Did you ever observe any of that before, during or after Mr.
                Davis’ accident?

                A. I never made that observation, General, but I did know this
                much: that this issue that was raised here today would come
                back to revisit at some future point, and so I took the
                precaution of filing a motion for a mental evaluation because
                I knew I would some day be put in the position of having to
                explain why there was not much of a defense to offer a jury
                based on this claim of amnesia. So I filed a motion for a
                mental evaluation which resulted in the evaluation which has
                been tendered I believe as Exhibit Number One.

The exhibit to which counsel referred is an outpatient psychiatric evaluation completed by

Dr. William M. Regan, a staff psychiatrist at the Middle Tennessee Mental Health Institute,

and Dr. Samuel N. Craddock, a licensed clinical psychologist. That report, prepared

following an evaluation of the petitioner on June 17, 1988, includes the following:

                Mr. Davis’ professed inability to recall certain incidences
                appears selective. He contends he does not recall prior
                serious charges, the event that led to his present charge or
                escaping from jail. However, interspersed among these
                periods of forgetting, Mr. Davis is able to recall information
                which places him in a favorable light. . . . Based upon the
                above observations and Mr. Davis’ comments, he is
                considered competent to stand trial. He does not appear to
                have a mental illness or to lack the capacity to assist his
                attorney if he so chooses. He is felt capable of following
                courtroom testimony and aiding in his own defense.

We conclude that the petitioner has failed to show that counsel had any credible basis for

seeking a continuance or taking any other corrective action based on the petitioner’s

mental state.

                                     B. Change of Venue

       Second, the petitioner alleges that counsel’s failure to seek a change of venue was

an error of such magnitude as to constitute ineffective assistance of counsel. The

petitioner’s trial counsel did attempt to determine whether an impartial jury could be

obtained in McMinn County. Counsel filed a motion requesting that he be allowed to

conduct individual voir dire and attached various articles that had appeared in local tabloids

with respect to the pretrial publicity. The trial court held that its ruling would depend upon



                                                7
the responses of the prospective jurors. On voir dire, the trial court inquired of the panel:

“Do any of you folks know anything about these alleged crimes? Have you heard anything

about it? Have you read anything in the papers about it?” The only response was the

statement by one prospective juror who stated, “I’ve read about it in the papers.” Upon

further questioning by the trial court, the prospective juror stated that she could disregard

the news report and base her decision “solely and alone upon the evidence” presented at

trial. State v. Roger Clayton Davis, No. 170, 1989 WL 112748, at *1-2 (Tenn. Crim. App.,

Knoxville, Sept. 29, 1989). The trial court denied the motion for individual voir dire, and

there were no further questions of the jury concerning pretrial publicity. This court held,

“There is no showing that a significant possibility existed that the prospective jurors had

been exposed to potentially prejudicial material, mandating individual voir dire.” Id. at *2.

Additionally, the record includes a document dated July 21, 1988, signed by the petitioner,

which states, “The jurors seated are acceptable to me.”          Thus, it is apparent that both

petitioner’s trial counsel and the trial court were aware of and dealt appropriately with the

pretrial publicity; and, at the time of the trial, the petitioner did not object to the jury. Based

on this, we conclude that the petitioner has failed to show that counsel had any credible

basis for seeking a change of venue and therefore this allegation is without merit.



                             C. Petitioner’s Prior Convictions

       Third, the petitioner alleges that counsel’s failure to determine which of petitioner’s

prior convictions might be used to impeach him amounted to ineffective assistance of

counsel in that the petitioner was unable to make an informed decision concerning whether

he should testify at trial. The admissibility of evidence is a preliminary question for the

court. See Tenn. R. Evid. 104. Both the State and petitioner’s trial counsel noted that a

jury-out hearing was conducted by the trial judge concerning the admissibility of evidence

of prior crimes. The petitioner’s criminal record reflected convictions for receiving and

concealing stolen property (1977); false imprisonment (Florida, 1980); and escape (1982).

The record reflects that the 1980 Florida false imprisonment conviction arose from his

abduction and sexual assault upon an eighteen-year-old woman.




                                                8
       As for the petitioner’s decision not to testify, petitioner’s trial counsel testified to the

following:

              A. I explained to him the danger of taking the witness stand,
              and one of the things we had talked about was not only his
              prior conviction in Florida, but this claim of amnesia, and I told
              him that claiming amnesia would be a very dangerous step to
              take on the witness stand because it could result in the DA,
              which was you, General, who would call witnesses to testify
              that he was not in fact suffering from amnesia –

              Q.     In the person of the two –

              A.     Correct.

              Q.     Psychiatrists who offered that report.

              A. That’s correct. That remembering certain facts and not
              remember[ing] certain others would obviously create a bad
              impression in front of the jury. So with specific reference to
              this testimony on his own behalf we discussed that in detail.
              And not only this issue of amnesia, but also after we
              conducted a jury out hearing, and Judge Mashburn had ruled
              certain convictions inadmissible and certain convictions
              admissible, we made the decision not to testify, but it was one
              that was advised and one which we had discussed.

The court noted the following during the evidentiary hearing on the petition for post-

conviction relief:

              [I]t was indicated that one of his convictions would have been
              let in, the receiving and concealing, the other convictions
              Judge Mashburn kept out, which I find it was very appropriately
              done, but still there would have been a conviction, and with
              that and the amnesia issue, as I have talked about, and then
              the sudden recall of facts, it would have been very damaging
              to Mr. Davis’ credibility, and there was nothing further brought
              up by Mr. Davis of indicating any willingness to testify once that
              discussion was had.

Petitioner was granted a 404(b) hearing during the trial of his case, in accordance with the

Tennessee Rules of Evidence, and therefore was able to make an appropriately informed

decision concerning his right to testify. Later, as the trial progressed, he “changed his

mind” and decided that he wanted to testify in his own behalf. However, he stated during

the post-conviction hearing that he did not inform trial counsel that he had changed his

mind and wanted to testify. We conclude that this allegation is without merit.



                                D. Failure to Call Witnesses

       Fourth, the petitioner alleges that counsel failed to call witnesses in his behalf,



                                                9
specifically, counsel failed to call Joseph Corley. Corley testified at the post-conviction

hearing that he and the petitioner were co-workers. The trailer at the construction site

where the two men worked was the one in McMinn County where the petitioner took the

victim. A sawed-off shotgun was found under a mattress in the trailer by police. Mr.

Corley, an ex-husband of the petitioner’s mother, could have established in his testimony

that the petitioner, and any number of other individuals who worked at the construction site,

regularly entered the trailer and knew of the existence of the shotgun. The petitioner

alleges that this testimony would have been helpful to him. The post-conviction court

found that “the testimony would have been more damaging to the defendant than helpful

because the testimony would have shown that Mr. Corley as well as the defendant, and

anyone else that would have been [in] the trailer, would have known that the shotgun was

in the trailer. This testimony, the Court finds, would not have bolstered the claim of

consensual sexual conduct.” We agree with this statement. Additionally, we note that,

according to the rules of professional responsibility in effect in Tennessee at the time of

this trial, a lawyer could “[w]here permissible, exercise his professional judgment to waive

or fail to assert a right or position of his client.” Tenn. Sup. Ct. R. 8, DR 7-101(B)(1). 1



        In this case, defense counsel has been a licensed attorney since 1975, practicing

both as an assistant prosecutor for a number of years and later in private practice. As for

not calling the petitioner’s ex-stepfather to testify, that was a tactical decision made by a

clearly experienced attorney. Our supreme court has held that a reviewing court defers to

counsel’s trial strategy or tactical choices if they are informed and based upon adequate

preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). We conclude that this

allegation is without merit.



        1
        Our Supreme Court has adopted the Code of Professional Responsibility to “assist and
guide lawyers in their relationships with clients and others.” Zagorski v. State, 983 S.W.2d 654,
658 (Tenn. 1998). Additionally, in Zagorski v. State, our Supreme Court stated:

                Generally, the client has exclusive authority to make decisions about
                his or her case, which are binding upon the lawyer if made within the
                framework of the law. . . . Counsel’s role in a criminal case is to
                assist the defendant in making a defense and to represent the
                defendant before the court.

Id. (citations omitted).

                                                 10
              E. Failure to Adequately Investigate and to Present Defense

        Fifth, the petitioner alleges that counsel failed to adequately investigate the victim’s

background in order to present evidence at trial that would support the petitioner’s claim

of consensual, paid-for sexual conduct. Specifically, the petitioner alleges that counsel

should have determined if the victim had a record of prostitution; should have called an

unnamed Knoxville law enforcement officer to testify that Magnolia Avenue, the street

where the petitioner encountered the victim, was a known area for prostitution; and should

have verified the victim’s claim that she was living at a shelter.



        The record shows that, while the petitioner testified as to the facts of the incident in

detail at the post-conviction hearing, 2 prior to the trial on his charges, he had provided

counsel with only a “general denial” with some indication that the victim was a prostitute.

Counsel’s handwritten notes from an interview with the petitioner on September 9,

1987—prior to his escape from jail, motorcycle accident, and claim of amnesia—were

admitted into evidence at the post-conviction hearing. According to those notes, the

petitioner stated that the victim told him she would like to ride naked and asked him to tie

her up and said that she had done this with her boyfriend before.



        The petitioner does not recognize the difficult position that his trial counsel was in

at the time of trial. Although prior to the trial, he had told counsel in general terms of his

version of the events, he was claiming, by trial time, that he was “unsure” of “what actually

happened.” Thus, although the petitioner now claims that his defense was that the victim

solicited him, he does not advance a theory as to how this defense could have been more

        2
         Petitioner testified at the post-conviction hearing that he and the victim got in a fight at the
trailer when the victim tried “to roll” him and announced she was not going to leave and would cry
rape. He put the naked victim and her clothes in his car and drove to the convenience store to get
them both a beer to “calm down.” While he was in the store, the victim came “storming in the place
saying that I tried to rape her.” The following is an exchange with the prosecutor:

                Q. She came running into the place where you were trying to buy
                her a beer that she said she wanted, and she was naked and she
                was screaming that you had raped her.

                A.    Yeah.

                Q.    And what happened next?

                A.    I turned around and walked out.

                                                   11
effectively presented, since he elected not to testify, both because of claimed amnesia, as

well as one of his prior convictions being used for impeachment purposes. Trial counsel

was faced with a positive identification of the petitioner and a victim who refused to talk

with him. Counsel did go to Knoxville to try to find a record on the victim of any prior

convictions for offenses of prostitution. He found none. The post-conviction court stated:

              [I]t appears to the Court, based on what I’ve heard, that he did
              the best job with what he had. He did attempt to investigate,
              he talked to the witnesses there at the convenience store, he
              went to Knoxville and tried to look up the record of this alleged
              victim to see whether or not she did have a record of
              prostitution and tried to do these things. . . . As everyone
              knows a person is not entitled by the constitution or the law of
              the land to a perfect trial and not entitled to a lawyer that can
              work magic, but a lawyer that can do the best job he can with
              the facts and the law, and he’s entitled to a fair trial and
              entitled to have every issue raised that can possibly, legally
              and ethically be raised in his behalf.

We agree with the post-conviction court in this regard and conclude that this allegation is

without merit.

                                      CONCLUSION

       In all his challenges to the effectiveness of his counsel, the petitioner has failed to

meet his burden of demonstrating that counsel’s performance was not within the range of

competence demanded of attorneys in criminal cases. It is, therefore, unnecessary for us

to consider any possible prejudice to the petitioner. For these reasons, we hold that the

petitioner’s ineffective assistance of counsel claim is without merit. We affirm the




                                             12
dismissal by the trial court of the petition for post-conviction relief.




                                            _____________________________________
                                            ALAN E. GLENN, JUDGE



CONCUR:




__________________________________
DAVID G. HAYES, JUDGE




___________________________________
JOE H. WALKER, III, SPECIAL JUDGE




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