             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                           October 12, 2004 Session

              JOHN HENRY SPARROW, III v. STATE OF TENNESSEE

                       Direct Appeal from the Circuit Court for Dickson County
                                No. CR6605     Robert E. Burch, Judge



                       No. M2004-00492-CCA-R3-PC - Filed December 10, 2004


This is an appeal as of right from a denial of post-conviction relief. The Defendant, John Henry
Sparrow, III, was convicted by jury verdict of attempted especially aggravated kidnaping and
received a twelve year sentence. This Court upheld the Defendant’s conviction on direct appeal.
See State v. John Henry Sparrow, III, No. M2000-03238-CCA-R3-CD, 2002 WL 560958 (Tenn.
Crim. App., Nashville, April 16, 2002) (not for citation).1 The Defendant subsequently filed a
petition for post-conviction relief, which was denied. The Defendant now appeals to this Court,
raising the single issue of ineffective assistance of counsel. We affirm the judgment of the post-
conviction court.


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


DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.


T. Lance Carter, Fayetteville, Tennessee, for the appellant, John Henry Sparrow, III.


Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; Dan Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.




         1
            “If an application for permission to appeal is hereafter denied by this Court with a ‘Not for Citation’
designation, the opinion of the intermediate appellate court has no precedential value.” Tenn. R. S. Ct. 4(F)(1).
           “An opinion so designated shall not be . . . cited by any judge in any trial or appellate court decision, or by any
litigant in any brief, or other material presented to any court, except . . . when the opinion is relevant to a criminal, post-
conviction or habeas corpus action involving the same defendant.” Tenn. R. S. Ct. 4(F)(2).
                                             OPINION


                                               FACTS


        The underlying facts of this case were described by this Court in the direct appeal opinion
as follows:


       On August 26, 1998, Carolyn Finch’s two granddaughters, Josie Shepherd and
       Kaitlyn Christian, were visiting her at her apartment in Dickson County, Tennessee.
       Josie was about to turn four years old; her cousin Kaitlyn was eight years old. In the
       afternoon, Josie and Kaitlyn went to the playground at the apartment complex. A
       short time later, the two girls came rushing back into the apartment, slamming the
       door behind them. Ms. Finch testified that the girls were very frightened, upset and
       confused. When Ms. Finch asked them what was wrong, they told her that a man had
       tried to get them to leave the playground and go into the woods to play with snakes
       and turtles. She testified that the girls told her that, as they ran up the stairs to the
       apartment, the man had tried to grab Josie’s foot. Ms. Finch subsequently contacted
       the police.

       Kaitlyn testified at trial, explaining that she had been sitting on the playground fence
       while Josie was on the swings when a strange man came up behind her. She jumped
       off the fence and ran to stand next to Josie. The man asked them if they wanted to
       play snakes. Kaitlyn testified that she said, “no, how do you play?” She stated that
       the man told her, “you go in the woods and find all the snakes you can.” She told the
       man that they didn’t play with snakes. She stated that Josie then said, “come on, let’s
       go inside.” Kaitlyn testified that they ran to the stairs leading up to their
       grandmother’s apartment and began going up the stairs. The man was “kind of
       jogging” toward the stairs, according to Kaitlyn, and when he got to the bottom of the
       stairs, commented, “I’m going to get you.” She explained that he reached up and
       grabbed at Josie’s ankle, but “barely touched it.” Kaitlyn grabbed Josie and ran with
       her up the remaining steps and into the apartment.

       Kaitlyn stated that she had never seen the man before and did not see him again. She
       was unable to identify him in court. She stated that the man at the playground had
       been wearing “a red Arizona T-shirt, a cap, [and] some baggy jeans.” She also stated
       that “his eyes looked like they had soot on them.”

       Dustin Owen testified that he saw the Defendant walk by him at the apartment
       complex on August 26, 1998. Mr. Owen explained that soon thereafter he saw the
       Defendant drive by. Some days later he saw the Defendant in the complex again,


                                                 -2-
      driving his car. He stated that the Defendant pulled in front of one of the buildings,
      turned around, and drove back out. He described the car as old and black with some
      sort of shade covering the back window.


      Jessica Wood testified that she saw the Defendant talking to Kaitlyn while Kaitlyn
      was sitting on the playground fence. She stated that he was wearing a red hat and a
      red shirt. About one or two weeks later, she saw the Defendant at the complex again,
      when he drove in, turned around, and drove back out. He was wearing a black
      cowboy hat and a black shirt. She looked at the car’s license plate number,
      memorized it, and wrote it down. She gave the number to the police, and
      remembered it at trial as 5DD452.

      Michael Hugel testified that he had seen the Defendant coming up from the woods
      near the complex a couple of times. Tracy Fuller testified that she saw the Defendant
      near the woods at the same time Kaitlyn and Josie were in the playground.

      On September 3, 1998, Detective John Patterson stopped the automobile the
      Defendant was driving because the brake lights weren’t working, and because the car
      matched the description of the one reported in connection with this incident. The car
      was a black Nissan with window louvers in the rear hatchback. The license plate
      number was 50DV452. Detective Patterson did not question or arrest the Defendant
      but did ask him where he lived. The Defendant told him where he lived, adding that
      he lived with his fiancé, Edith Smith. Ms. Smith subsequently gave the police
      consent to search their apartment. During the search, the police recovered a red tee-
      shirt with the word “Arizona” on it, and a black cowboy hat.

      Detective Patterson also showed a photographic lineup containing a photograph of
      the Defendant to several of the witnesses. Detective Patterson testified that Dustin
      Owen and Michael Hugel identified the Defendant in the lineup. However, Tracy
      Fuller and Jessica Wood did not identify the Defendant from the lineup.

        On September 3, 1998, Detective Stewart Goodwin met with the Defendant and took his
written statement. The statement reads as follows:
      On the way from work in Ashland City at about 5:00 p.m. I decided to check out the
      apartments in Charlotte on Route 48. I had rode through before checking them out.
      I parked my car in front of the building on the right. I walked down to the office to
      ask about lease info. but no one was there. So I decided to walk through the apts. to
      see what I could. I noticed several kids playing outside, but especially two young
      girls climbing a fence around the playground and jumping off the other side toward
      the woods. I then spoke to the children in a loud voice saying “don’t jump off that
      fence because you may get hurt, break a leg or arm or something.” One girl said

                                               -3-
         “why.” I asked if they had other games to play that were less dangerous. They asked
         “like what.” I said I used to play a game called snake, would you like to play. They
         said how do you play. I said one person is the snake has to cover their eyes and count
         to 10 while the others (turtles) have to run and hide. [T]he snake then tries to catch
         or tag the turtles. The girls showed no interest in the game.

         I then asked while I was looking around if they had ever seen any snakes. One girl
         replyed [sic] that “My daddy has caught snakes.” I then asked what he did to them.
         She replied “He killed them.” I said that was crazy. The little girl said “I’m crazy.”
         I said “How crazy are you?” She said “I would do anything.” I said “thats pretty crazy
         allright.” Then I started walking back around the apartment to go to my car. I saw the
         girls going home toward the front of the apartment. We passed again in the breezway.
         One of the girls kicked her leg at me from up above me in a playful gesture. So I
         returned playfully by swiping at her leg and sticking my toung[sic] out at her. [T]he
         two then ran up the rest of the stairs and slammed the apt. door. I kept walking to my
         car and left to go home. Yesterday, I turned around in the apt. parking lot to see other
         rental property I had passed about 3 miles before.

         Edith Smith, who had been engaged to the Defendant in August 1998, testified on
         behalf of the Defendant. She explained that she and the Defendant had been living
         in Dickson at that time and that she had been interested in moving closer to Ashland
         City; hence, the Defendant’s interest in looking at the apartment complex.

         Nancy Sparrow, the Defendant’s mother, also testified on the Defendant’s behalf. She
         explained that, as a teenager, the Defendant had played a game called “snakes and turtles.”

Sparrow, 2002 WL 560958, at *1-3.

        At the March 2000 jury trial the State also called as a witness victim Josie Shepherd,2 then
approximately five years old. The record reveals that when placed on the witness stand, the child
was unable to respond to any questions asked of her and began to cry. The trial judge excused the
child and instructed the jury to disregard the fact that the witness was called.

       At the post-conviction hearing, both the Defendant’s former fiancé, Ms. Edith Griffith,3 and
his mother, Ms. Nancy Sparrow, testified that they spent very little time with the Defendant’s trial
counsel and were never asked if they knew why the Defendant was at the apartment complex

         2
           The record on appeal contains several inconsistencies pertaining to the spelling of the youngest victim’s name.
The trial judge, in his memorandum denying post-conviction relief, refers to her as “Jody Shepherd” while the post-
conviction hearing transcript and the Appellant’s brief refer to her as “Josie Sheppard.” W e use “Josie Shepherd,”
consistent with the spelling used in the direct appeal opinion.

         3
             Ms. Edith Griffith was previously known as Ms. Edith Smith.

                                                           -4-
playground talking to small children. Ms. Griffith admitted to testifying at trial that she and the
Defendant wanted to move to a different apartment complex, but stated that the Defendant’s trial
counsel never asked about--or presented to the jury--the fact that she had two handicapped children,
they lived in cramped quarters with no nearby playground facilities or other children, and she and
the Defendant wished to move to a new apartment complex with a proper play area and suitable
neighborhood children who could befriend her special-needs children. She also testified that she
specifically asked the Defendant to inspect the apartments where the crime occurred to determine
their suitability for her children’s needs. Ms. Nancy Sparrow testified that she also knew her son
and Ms. Griffith were looking for a new apartment complex primarily because of the children’s
needs, and were interested in the apartments where the offense occurred, but that the Defendant’s
trial counsel never asked her about these facts. Ms. Sparrow further testified that the Defendant’s
trial counsel had never before met with her until the day of the trial when she was unexpectedly
called as a witness.

         The Defendant’s father, Johnny Sparrow, testified at the post-conviction hearing concerning
his observations at the trial when Josie Shepherd was put on the witness stand. He stated that when
the five-year-old was questioned by the State she started crying. Mr. Sparrow further stated: “When
that happened, my heart dropped to the floor. I felt right then and there that they were going to
convict my son. I looked at the jurors faces, and I could see that they felt the emotion that I felt from
the girl crying. I wanted to cry myself.” Ms. Debbie Smith, the Victim-Witness Coordinator for
the District Attorney’s Office, testified that prior to the day of the trial she interviewed the child and
took her to the courtroom for familiarization with the surroundings. Ms. Smith stated that the child
did not exhibit any difficulty during the interview or display nervousness prior to being called to
testify.

         The Defendant’s trial counsel, the father and son legal team of Dale and Kenneth Quillen,
both testified at the post-conviction hearing. Dale Quillen, a 47-year veteran of the practice of law,
testified that in preparing the case for trial he had not learned about the two handicapped children
living with the Defendant and his fiancé, the cramped quarters, or lack of playground facilities. He
stated that he did not know that both Ms. Griffith and Ms. Sparrow could have testified of these
facts, thereby providing an explanation as to why the Defendant was at the apartment complex
playground. He also stated that he considered the failure to learn this information and present it to
the jury a “serious omission” and concluded that, in his opinion, it prejudiced the Defendant. He
further testified that he and his son were “over confident” and therefore did not zealously advocate
for their client as they should have.

         Mr. Kenneth Quillen, trial co-counsel, also testified that he did not know about the facts to
which Ms. Griffith and Ms. Sparrow could have testified. He further testified that when the crying
child was removed from the courtroom at the trial he failed to preserve the juror’s reaction for the
record, and also failed to raise the issue on direct appeal. Mr. Kenneth Quillen conceded that Ms.
Griffith did testify at trial that they were unhappy with their current living arrangement and had
expressed interest in the very apartment complex where the offense occurred. During the course of
his testimony, Mr. Kenneth Quillen admitted several times that he made mistakes which he believed


                                                   -5-
prejudiced the Defendant. When questioned by the State concerning other evidence presented at trial
which strongly supported the jury’s verdict of guilt, Mr. Kenneth Quillen remarked that “juries make
mistakes,” and, that in this case, “I think an innocent man was convicted.”

       The Defendant testified at the post-conviction hearing that during the course of one of several
lengthy meetings he had with Dale Quillen, he informed his counsel in detail of his reason for
checking out the playground facilities at the apartment complex where the offense occurred.
Specifically, the defendant testified that he told his trial counsel:

       [W]e were living in a cramped area. I told him that they [Ms. Griffith’s children]
       were mentally challenged. That we were looking for a place for them to go where
       they could play. The place we were living didn’t have any place for them to go.
       They couldn’t go out and play. The apartment manager where we were at wouldn’t
       allow them out by themselves. There was no facilities for them there; and I wanted
       to get closer to work because I was working in Ashland City.

The Defendant also testified that he was advised by his counsel not to testify at the trial because of
his prior criminal record.

        In February of 2004, the court issued an order denying post-conviction relief. In a
memorandum accompanying the order, the court stated that with regard to the reason why the
Defendant was at the crime scene, “[m]ost of this evidence was, in fact, before the jury.” The court
found that the additional evidence that could have been provided by Ms. Griffith and Ms. Sparrow
was “cumulative.” The court further found that the failure of the child-witness to testify was
unforseen, and properly handled when the judge excused the witness and instructed the jury to
disregard her appearance in court, adding that “[t]his Court presumes that the jury followed that
instruction.” Thus, the court found that the child’s appearance in court did not affect the outcome
of the trial. After stating its findings of fact and conclusions of law, the trial court concluded that
“the issue of ineffectiveness of counsel is without merit” and denied post-conviction relief. The
Defendant timely appealed to this Court.

                                            ANALYSIS
        In his appeal from denial of post-conviction relief, the Defendant argues that he received
ineffective assistance of counsel at his trial. The Defendant asserts that his trial attorneys were
constitutionally deficient in two specific areas of his trial which led to actual prejudice: (1) his
counsel failed to fully investigate the factual matters of the case and failed to elicit critical
information from their own witnesses concerning the Defendant’s reason for being at the crime
scene, and (2) his counsel failed to note for the record the reaction of the jurors to the crying five-
year-old witness and failed to argue this issue on direct appeal. We disagree.




                                                 -6-
        I. 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). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of 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 v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         II. Ineffective Assistance of Counsel
         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This


                                                  -7-
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

                A. Inadequate investigation and witness preparation
        The Defendant asserts that both Edith Griffith and Nancy Sparrow knew information that was
“particularly relevant,” and had they been properly questioned by trial counsel “there is a reasonable
probability that the result would have been different.” The Defendant points to evidence suggesting
that his trial counsel failed to adequately investigate the facts of the case, failed to properly
interrogate and question the Defendant’s own witnesses, and most significantly, failed to elicit and
present to the jury the critical information concerning the Defendant’s explanation for why he was
talking to children at the playground of the apartment complex. The record reveals that neither Ms.
Griffith nor Ms. Sparrow had met the Defendant’s trial counsel prior to the day they were placed on
the witness stand, and neither was informed ahead of time that they would be asked to testify. Trial
counsel did not discuss with Ms. Griffith what she was to testify about during trial, and never even
asked Ms. Sparrow what she knew about the case before putting her on the stand. At the post-
conviction hearing both Dale and Kenneth Quillen stated that they were deficient in their
investigation and witness preparation, and that their failure to present the information that the two
witnesses knew to the jury was not a strategic move but rather a “serious omission” on their part.
They further stated that they believed their deficient representation did in fact prejudice the
Defendant.

        We indulge a “strong presumption that counsel’s conduct falls within a wide range of
professional conduct” that is “demanded of attorneys in criminal cases.” Barr v. State, 910 S.W.2d
462, 464 (Tenn. Crim. App. 1995). However, the deference we afford to attorneys’ strategic and
tactical choices “only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. Sate, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992); see also McBee v. State, 655 S.W.2d
191, 193 (Tenn. Crim. App. 1983) (holding that appellate courts “do not sit to second guess strategic
and tactical choices made by trial counsel,” but when those choices are “uninformed because of
inadequate preparation, a defendant is denied effective assistance of counsel.”). While not an
inclusive list, this Court has previously observed that a defense attorney is “obliged to confer with
his client, advise him of his rights, protect his rights, investigate the facts, and develop all substantial
defenses.” State v. Swanson, 680 S.W.2d 487, 490 (Tenn. Crim. App. 1984). Furthermore, our
supreme court declared that “[f]ailure to conduct a reasonable investigation constitutes deficient
performance,” Burns, 6 S.W.3d at 462, and that a defense attorney is duty-bound to “investigate all
apparently substantial defenses available to the defendant and must assert them in a proper and
timely manner.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001).

        In this case, the Defendant has established his trial counsel’s inadequate investigation and
deficient witness preparation by clear and convincing evidence. After advising their client not to


                                                    -8-
take the stand himself, the Defendant’s trial counsel called only two witnesses, Ms. Griffith and Ms.
Sparrow. Counsel failed to properly inquire as to what these witnesses knew, failed to give them
proper notice that they would be called to testify, failed to discuss what their testimony would be on
the stand, and failed to have them explain to the jury the reason the Defendant was talking to
children on the playground.

         There is disagreement in the record as to whether trial counsel knew the details about Ms.
Griffith’s two children and their need for more suitable living arrangements. Both attorneys testified
that they did not know of Ms. Griffith’s children and their needs, while the Defendant testified that
he fully advised his counsel of these pertinent facts. Nevertheless, the Defendant’s trial counsel
provided deficient representation under either scenario: if their client did not inform them of these
facts, then their investigation was not “reasonable” and therefore “constitutes deficient performance,”
Burns, 6 S.W.3d at 462; however, if they were informed of these facts, they failed to pursue the
obvious explanation for why the Defendant was at the crime scene talking to children and assert it
“in a proper and timely manner,” House, 44 S.W.3d at 515. In sum, we find that the Defendant’s
trial counsel provided deficient representation by failing to fully investigate the facts of the case,
failing to properly interview and prepare their own witnesses, and for failing to elicit important
testimony from the witnesses and present it to the jury in a proper and timely manner.

         However, our inquiry does not stop at a finding of deficient representation, for it is well
settled that to establish ineffective assistance of counsel the Defendant “bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad,
938 S.W.2d at 369 (emphasis added). Despite his trial counsel’s errors, the Defendant has failed
to establish prejudice by demonstrating “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Id. at 370.
          In order to “establish prejudice, the evidence stemming from failure to prepare a sound
defense or present witnesses must be significant,” though it need not follow that the “trial would
have otherwise resulted in acquittal.” State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn Crim. App.
1991). The trial court found the evidence not elicited from the two witness to be merely
“cumulative.” The trial court discredited the Defendant’s argument that had the jury known he had
a reason for being at the apartment playground, they would have decided in his favor. Rather, the
court concluded:

       Most of this evidence was, in fact, before the jury. At the trial, Edith Smith (now
       Griffith) testified that, prior to the event, she told Petitioner that she would like to
       live in the apartments in question (transcript, page 110). She also told the jury that
       she had small children. (transcript, page 111). The information which Petitioner
       insists should have been presented was cumulative. This Court cannot find by a
       preponderance of the evidence that it would have changed the outcome nor called
       into question the reliability of the result. [Internal citations refer to trial transcript].

       Both this Court and our supreme court have consistently upheld trial court rulings denying
post-conviction relief where the petitioner alleges ineffective assistance of counsel due to failure to


                                                   -9-
present testimony determined to be cumulative in nature. See Nichols v. State, 90 S.W.3d 576, 601
(Tenn. 2002) (holding defense counsel did not perform deficiently for failing to present additional
mitigation witnesses at a penalty hearing where their testimony would have been cumulative to
evidence already presented at the sentencing hearing); Howard Eugene Buchanan v. State, No.
M2003-01815-CCA-R3-PC, 2004 WL 1114589, at *6 (Tenn. Crim. App., Nashville, May 19, 2004)
(holding defense counsel was not ineffective for failing to call a particular witness because his
“testimony was largely cumulative” to testimony that had already been presented).

         In this case, while the Defendant’s trial counsel failed to fully and clearly present the
Defendant’s explanation for why he was at the apartment complex playground talking to small
children, the key facts comprising his reason for being at the crime scene were presented to the jury.
Moreover, the “critical, relevant information” the Defendant now claims was never elicited from the
witnesses would not have resolved many of the questions the State presented to the jury. While the
omitted information may have suggested a more plausible explanation for the Defendant’s presence
at the playground, it fails to answer questions raised by the victims’ testimony that the Defendant
asked them to leave the playground and go into the woods to play “snakes and turtles.” Likewise,
it fails to account for Michael Hugel’s testimony that he saw the Defendant coming up from the
woods near the apartments several times. Most importantly, it fails to provide an explanation for
why the Defendant chased the children, threatened them, and tried to grab the fleeing three-year-old
victim by the ankle.

       The post-conviction court determined that the omitted testimony would not have changed the
outcome of the trial or called into question the reliability of the result, thus, the Defendant was not
prejudiced. We are unable to conclude that the trial judge erred in reaching this conclusion.
Accordingly, we find that the Defendant has not demonstrated by clear and convincing evidence that
he was prejudiced by his trial counsel’s deficient investigation or witness preparation.

                 B. Failure to preserve for the record and argue on appeal the issue of the child-
                 witness
         The Defendant claims his trial counsel provided ineffective assistance of counsel because
they failed to preserve for the record the jury’s reaction to the crying child-witness at trial, and also
for failing to argue the child-witness issue on direct appeal. We disagree.

         We note that the issue of possible prejudice to the jury due to the child-witness crying was
adequately preserved in the record through defense counsel’s motion for mistrial and the trial court’s
instructions to the jury. Counsel interrupted the trial proceedings, entered a motion for mistrial, and
stated for the record: “. . . I think it prejudiced the jury to see this beautiful little girl there in her
mother’s arms . . . .” After his motion for mistrial was denied and the witness was dismissed,
Counsel requested the trial court instruct the jury to disregard the child’s appearance, which the court
did, stating for the record: “It became obvious when [the child] came into the courtroom she was not
going to be able to testify, so she didn’t testify. . . . So as far as you are concerned, she gave no
evidence.” We find that the Defendant’s trial counsel provided representation that was not deficient



                                                   -10-
with regard to the issue of preserving for the record the child-witness’ crying in court as well as the
defense’s opinion that it “prejudiced the jury.”

        We also note that the post-conviction court found that the trial court properly dismissed the
child as soon as it became apparent she could not testify and instructed the jury to disregard the
child’s appearance. The post-conviction court correctly noted that the jury is presumed to have
followed the court’s instructions, thereby precluding any prejudice against the defendant.

             At the post-conviction hearing Mr. Kenneth Quillen testified that he and his father made
the strategic decision to not appeal the issue of the child-witness crying. This Court has stated that
failure to preserve or assert all arguable issue on appeal is not ineffective assistance of counsel,
because failure to do so may be part of counsel’s strategy of defense. See Swanson, 680 S.W.2d at
492. Moreover, it has long been established that this Court “will not attempt to second guess
counsel” on matters of “strategy and tactics.” State v. Martin, 627 S.W.2d 139, 142 (Tenn. Crim.
App. 1981). Therefore, we find the Defendant has failed to demonstrate that his trial counsel’s
failure to argue on appeal the issue of the crying child-witness was either deficient representation or
that it led to prejudice. The Defendant’s claim of ineffective assistance of counsel is without merit.

                                         CONCLUSION
       Finding no error, we affirm the judgment of the post-conviction court denying the defendant
post-conviction relief.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                 -11-
