                                                                                           09/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 17, 2018 Session

          NICHOLAS KEITH PHILLIPS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                         No. F76822    Royce Taylor, Judge


                             No. M2018-00058-CCA-R3-PC


In this State appeal, the State challenges the post-conviction court’s grant of relief to the
petitioner in the form of a new trial for his 2013 Rutherford County Circuit Court jury
convictions of two counts of rape of a child and two counts of aggravated sexual battery.
The State asserts that the post-conviction court erred by concluding that the petitioner
was deprived of the effective assistance of counsel at trial and that, but for counsel’s
deficient performance, the results of the petitioner’s trial would have been different.
Because the evidence preponderates against the findings of the post-conviction court, we
reverse the ruling of that court and vacate the order granting post-conviction relief.

      Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Vacated

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney General; and Hugh
Ammerman, Assistant District Attorney General, for the appellant, State of Tennessee.

Kevin R. Bragg, Murfreesboro, Tennessee, for the appellee, Nicholas Keith Phillips.

                                        OPINION

              A Rutherford County Circuit Court jury convicted the petitioner “of two
counts of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a
Class B felony,” and the trial court imposed “an effective [40]-year sentence to be served
at 100” percent release eligibility by operation of law. State v. Nicholas Keith Phillips,
No. M2013-02705-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, Jan. 27,
2015).
              At the petitioner’s trial, Rutherford County Sheriff’s Department dispatcher
Rachel Mullins testified that she answered the victim’s January 20, 2012, 9-1-1 call; the
12-year-old victim reported that the petitioner, her mother’s boyfriend, “had tried to rape
her” while she was napping. Id., slip op. at 2. The victim told Ms. Mullins that the
petitioner had placed his “‘thing’” on her leg and “told her, ‘[I] thought that’s what [you]
wanted.’” Id. Officer Dennis Ward responded to the victim’s call. Officer Ward
recalled “that the victim was crying and shaking” when “he asked her what was going
on.” Id. “The victim told him that she had gone into the back bedroom and was lying
with the appellant, who was rubbing her back. She felt his penis on her leg and saw a wet
spot on her jeans.” Id. When asked on cross-examination “if the victim’s mother seemed
shocked by the victim’s allegations,” Officer Ward responded, “‘I’m not sure shocked is
the exact word that I would use. Concerned, upset.’” Id. Officer Ward indicated that the
victim’s mother did “‘[n]ot necessarily’” appear to doubt the victim’s report of abuse. Id.

               The victim’s mother testified that on January 20, 2012, the petitioner
“telephoned and told her that the victim had locked him out of the house.” Id., slip op. at
3. “She tried calling the victim, but the victim would not answer the phone.” Id. When
she arrived home, the victim’s mother found a police officer in the living room “talking
with the victim ‘about different things, subjects like the planets and drawing pictures with
her and stuff.’” Id. The officer “would not allow the victim’s mother to speak with the
victim until a detective arrived.” Id. The victim’s mother exchanged text messages with
the petitioner but did not tell the police officers that she had done so. The victim’s
mother said that officials told her that the victim could not remain in the home that night,
so she drove the victim to a friend’s house. As they drove, she spoke with the petitioner
over the telephone, and the conversation was recorded by the petitioner’s “laptop
webcam” and played for the jury. The petitioner refused her suggestion that he go to the
police, saying, “‘Darling, I cannot go and talk to the officers . . . . The whole pants thing
has me scared [sh* *less], though, because she was grinding on me . . . . Yeah, I had an
erection because she kept touching my [di* *]!’” Id., slip op. at 3-4.

              During an interview with “a woman from DCS,” the victim’s mother “said
that the appellant owned a laptop computer and that, prior to this incident, he ‘had it in
my room for a while. And then he had it in [the victim’s] room for a while.’” Id., slip
op. at 4. She said that the petitioner must have taken the laptop to his mother’s house.
The victim’s mother testified that although the victim had only initially claimed that the
petitioner had rested his penis on her leg, “about two weeks later, the victim ‘finally came
out’ and told her about the vaginal penetration.” Id., slip op. at 5.

             The victim testified that on the evening of January 20, 2012, she and “her
brother were watching a movie in the living room, and the [petitioner] was playing his
Xbox in her mother’s bedroom.” Id., slip op. at 5. After her mother “left the home to pay
                                             -2-
taxes,” she “went into her mother’s bedroom to watch the [petitioner] play and sat on the
bed.” Id., slip op. at 5-6. The victim said that the petitioner then “turned off the Xbox,
turned off the light, and asked the victim, who was wearing jeans and a shirt, if she
wanted him to rub her legs.” Id., slip op. at 6. The victim replied in the affirmative and
lay on her stomach. The petitioner, who was fully clothed, then “rubbed her ‘thighs and
below’ over her clothes.” Id. When the petitioner rubbed her buttocks, the victim
initially “‘thought it was an accident’” but nevertheless “rolled onto her side ‘to see if he
wouldn’t do it again.’” Id. The petitioner then pulled her onto her back and “unbuttoned
her pants, put his hand inside her jeans and underwear, and put his finger inside her
vagina.” Id. The victim testified that she pretended to sleep because “she felt ‘[w]eird’
and ‘[u]ncomfortable’ and . . . did not know what to do.” Id. (alteration in original). The
victim “said that the [petitioner] took his hand completely out of her pants for ‘[p]robably
about a couple of seconds’ and that he ‘put it in again.’” Id. (second alteration in
original). The petitioner “put his finger inside her for a second time and then took his
hand out of her pants again,” and “she heard him making sounds ‘like something felt
good.’” Id. At that point, “she sat up, and . . . saw his ‘thing’ on her leg. She said that
she could not see if he was clothed but that she could see his ‘private.’” Id.

               “The victim testified that she got up, told the [petitioner] to stop, and ran”
to the petitioner’s mother’s house next door. Id. When she realized that the petitioner’s
mother was not home, she “ran into the field behind the duplex and toward a friend’s
house” before the petitioner “caught her and said, ‘[P]lease stop. I thought that’s what
you wanted.’” Id. (alteration in original). She then ran “into the house, locked the door,
and called 911.” Id.

             “The victim said she did not reveal the penetration initially because she was
afraid she would get in trouble for not stopping the [petitioner] sooner than she did.” Id.

               The victim admitted during cross-examination “that she was jealous of the
attention her mother gave the [petitioner],” “that she did not like him,” and that “[s]he
often thought that if the [petitioner] was not involved with her mother, her mother would
spend more time with her.” Id., slip op. at 7. “She also acknowledged that sometime
prior to this incident, she hid in her mother’s bedroom closet while her mother and the
[petitioner] were intimate.” Id.

               Following the petitioner’s arrest, the police “executed a search warrant on
the [petitioner’s] parents’ home and collected the [petitioner’s] red computer.” Id., slip
op. at 8. “Matt Stephenson, a special agent with the United States Secret Service,
testified as an expert in electronic crimes recovery that he received the [petitioner’s] red
laptop computer from the RCSD and ‘pull[ed] the data off’ the computer’s hard drive.”
Id., slip op. at 9. He said that “[t]he computer had an ‘active’ webcam and ‘a piece of
                                             -3-
software that support[ed] video type play.’” Id. Agent Stephenson played three of the
videos obtained from the petitioner’s laptop for the jury.

                The petitioner’s stepfather testified on the petitioner’s behalf that “he
‘didn’t like the vibe [he] got’ from the victim’s family, that the victim’s mother was ‘a
little uppity,’ and that the victim appeared to have ‘issues.’” Id. (alteration in original).
He said that after receiving a handmade greeting card from the victim in December 2011,
“he told his wife never to leave him alone with the victim.” Id. During cross-
examination, the petitioner’s stepfather identified the card the victim had given him;
“[i]nside the card, the victim had written, “Dear Mr. Richard, I hope your life will be last-
longing and enjoyable! I think you are very nice and fun to be with! Hope you have a
nice weekend!’” Id. He said that he had told the petitioner that “there’s something
wrong with” the victim.

               The petitioner filed a timely petition for post-conviction relief on December
20, 2016. He claimed entitlement to post-conviction relief on grounds that his conviction
was based on the use of unconstitutionally obtained evidence, that the State withheld
favorable evidence, that his convictions violated principles of double jeopardy, that the
grand and petit juries were unconstitutionally composed, and that he was deprived of the
effective assistance of counsel. Following the appointment of counsel, the petitioner filed
an amended petition for post-conviction relief, honing his grounds for relief into claims
his counsel performed deficiently by failing to provide him with a copy of the discovery
materials, failing to proceed on a timely-filed motion to suppress, failing to interview
witnesses prior to trial, failing to introduce evidence of the victim’s character for
untruthfulness, failing to investigate an allegation that a member of the petit jury was
aware of information gleaned during the presentation of the case to the grand jury, and by
failing to ask that the jury be sequestered. The petitioner also claimed that the State
engaged in witness tampering by permitting relatives of the victim to coach her during
her testimony and by permitting State’s witnesses to remain in the courtroom in violation
of the rule of sequestration; that the search warrant used to obtain his laptop computer
was invalid; and that the State failed to disclose prior forensic interviews of the victim
that “contained inconsistencies in her testimony which would have ultimately been
favorable to the [p]etitioner.” In his second amended petition for post-conviction relief,
the petitioner added a claim that his counsel performed deficiently by failing to file a
motion pursuant to Tennessee Rule of Evidence 412 regarding the victim’s prior sexual
conduct.

             At the August 29, 2017 evidentiary hearing, the petitioner testified that trial
counsel was appointed to represent him in December 2012 and that his trial occurred in
February 2013. He said that he did not feel that counsel had adequate time to prepare for
trial. The petitioner said that his total interaction with counsel prior to trial “was
                                             -4-
probably limited to about 30 minutes, 45 minutes at the most.” The petitioner
acknowledged that he rejected multiple plea offers from the State and maintained his
innocence throughout the proceeding.

               He testified that he tried “to bring up the search warrant issue” a number of
times but that counsel told him that it “was a non-issue at the time.” The petitioner said
that his previous counsel had filed a motion to suppress the evidence obtained pursuant to
the search warrant but that counsel did not act on the motion until the day of trial. At that
point, the trial court told counsel “something along the lines of too late” and denied the
motion.

               The petitioner testified that during the victim’s trial testimony, “[t]he DA’s
and the parents of the victim” would “shak[e] their head in the direction that they would
like their witness to testify in.” He said that he notified trial counsel, but trial counsel did
not object or otherwise question the witness about it. He said that he also repeatedly
advised counsel that the victim had a reputation for untruthfulness, but counsel “advised
that it would be in ill favor to go after the credibility of someone like that.” When he told
counsel about the victim’s previous sexual activity, counsel told him “there was no way
we could get that up on the stand.”

               The petitioner said that he became aware that counsel “had previously had a
stroke” and that, as a result, counsel “would lose focus and track of certain things.” He
said that “it was not well for [counsel] to speak in front of crowds like that.”

               During cross-examination, the petitioner testified that he had asked the trial
court to relieve counsel prior to trial “because [he] didn’t feel that [counsel] had [his] best
interest at heart.” He said that the State used the recording from his laptop, which was
“mostly just audio of [the petitioner] talking in the background,” to “cast [the petitioner]
in a negative aspect.” The petitioner agreed that the only recording from the laptop
introduced at trial was the audio from his telephone conversation with the victim’s
mother. During that conversation, the petitioner said that the victim had come onto him.
The petitioner acknowledged that a separate charge related to photographs and video
recordings of the victim in various states of dress on his laptop had been severed prior to
trial upon counsel’s motion.

              Trial counsel testified that he suffered a stroke in 2000 and that the stroke
caused him to have aphasia. He said that, other than the aphasia, his stroke had no impact
upon his representation of the petitioner. Counsel said that the petitioner maintained his
innocence and that he was eager to go to trial. Counsel recalled that he was appointed to
represent the petitioner at the end of October 2012 and that the trial was scheduled for
February 2013. During the three months before the trial, counsel visited the petitioner on
                                              -5-
“at least four” occasions for “an hour or more.” At some point, the State made a plea
offer that included a 10-year sentence, but the petitioner “couldn’t make a decision either
way.”

               Counsel acknowledged that the petitioner told him about the victim’s
previous sexual activity, but he said that the claim “was very hard to investigate” because
neither the victim nor her mother would consent to an interview. He said that he did not
file a Rule 412 motion prior to trial, explaining, “[T]he accusation was made against her.
She didn’t volunteer. It was made against her. . . . I was trying to be very careful and
walk on a very slim margin to get as close to it as I could to find out without going over
the edge.” Counsel admitted that he did not proceed on the motion to suppress filed by
the petitioner’s previous attorney until the day of trial, saying that he “honestly didn’t feel
like there was – that we had a good chance of getting that thing appealed – that proved.”
He conceded that the search warrant contained numerous errors and issues.

              Counsel also admitted that the petitioner told him about inconsistencies in
the victim’s account of the offenses and that the forensic interviews and letters written by
the victim supported the petitioner’s claim. Counsel did not use any of these items to
impeach the credibility of the victim or her mother.

              Counsel testified that he had the charge related to the photographs of the
victim on the petitioner’s laptop severed from the other charges. He admitted, however,
that he did not object to the admission of the video recording of the laptop at trial, saying
that he thought it would be helpful for the jury to “hear something that he was
proclaiming his innocence throughout the entire matter.”

              In the written order granting post-conviction relief, the post-conviction
court found that trial counsel failed “to proceed on a timely filed Motion to Suppress; to
devote the necessary time and effort to zealously defend [the petitioner]; and[] to attempt
to impeach the credibility of the two key witnesses at trial. These errors resulted in
prejudice toward the [p]etitioner.” The court observed that “there are several issues that
render [counsel’s] overall performance deficient, but they are all connected by a singular
thread: lack of preparation.” The court determined that the time that counsel “allocated
to this case was simply not enough to gain a full understanding of the facts and
accompanying legal issues.” The court pointed to counsel’s claim for attorney fees as
evidence of his allocating insufficient time to the petitioner’s case. The court noted that
the claim indicated that counsel spent a total of 26.4 out-of-court hours on the petitioner’s
case and that 10 “of those hours came within two days before trial began” such that
counsel spent only 16.4 hours on the petitioner’s case during the 15 months preceding the
trial. The post-conviction court found that the record contained “hundreds of pages of
discovery, multiple statements from multiple witnesses, and 31 hours of audio/visual
                                              -6-
discovery,” and concluded that “[e]ven the most charitable of calculations show that
[counsel] spent a mere 5.1 hours with these audio-visual files.” The court also noted that
counsel “spent a total of 26.4 hours on a case that would take 30.5 hours at trial.”

              The post-conviction court acknowledged “the deference due counsel when
reviewing trial strategies and allocation of time and resources” but concluded that “there
is no (winning) strategy that calls for an attorney being ill-prepared.” The court
determined that counsel’s lack of preparation resulted in his failing to timely challenge “a
key piece of evidence, the red laptop, and thus his oral Motion [to Suppress] was denied
out-of-hand by the trial judge.” The court observed that counsel failed to comply with
the State and local rules for filing a motion to suppress and that counsel acknowledged
when raising the issue on the day trial was set to begin that he “‘just saw [the search
warrant] this morning’” despite having had 15 months to prepare. (alteration in original).
The court also noted that during the discussion of the motion, the district attorney
remarked, “‘I’m a little confused that [counsel] doesn’t know what the evidence is on the
morning of trial.’” The court concluded that the motion to suppress was not “a longshot,”
observing that when defense counsel in the severed charge related to the photographs and
video recordings on the laptop “timely filed a Motion to Suppress” the evidence obtained
during the execution of the search warrant, “the State simply dismissed the charges.”

               The post-conviction court also found that counsel’s “performance in the
cross-examination of” the victim’s mother was deficient, noting that counsel failed to
“properly impeach” the victim’s mother “with a letter she wrote that was extremely harsh
to the victim, and flatly contradicted the victim’s testimony” and then “never introduced
this letter into evidence at trial.” The court observed that counsel “did refresh her
memory, but when she gave testimony that contradicted the letter, [counsel] simply
moved on.” The post-conviction court acknowledged that “it is always difficult to predict
how a jury will respond to any given piece of evidence,” but found that “[t]he fact that
the letter undercut the twin pillars of the” credibility of the victim and her mother “makes
not introducing it under those circumstances deficient performance.”

               Similarly, the post-conviction court found that counsel’s “cross-
examination of the victim was also deficient,” noting “that the victim had given multiple
statements, via letters, that amounted to multiple versions of the testimony she was giving
at trial.” The court concluded that counsel should have asked the victim about the letters
“and then moved the letters into evidence for impeachment purposes” and been prepared
“to redact the letters as needed upon ruling by the court.” “Instead,” the post-conviction
court found, counsel “explained that he was merely attempting to refresh the victim’s
recollection with these letters, and did not intend to introduce them at all.” The court
characterized counsel’s approach as “a grave error because, again, this was the key
witness in the trial.” The post-conviction court found that counsel should have done
                                            -7-
“everything in his power to attack the credibility of this witness, and there is seldom a
better way of doing this than via a prior inconsistent statement by the witness in
question.” The court concluded that the victim’s age did “not justify or legitimize”
counsel’s “unreasonable decision not to impeach a witness with prior inconsistent
statements.”

               The post-conviction court found that counsel’s “performance in
representing the [p]etitioner was unquestionably outside the range of professionally
accepted competent representation and deficient.” The court concluded that “the impact
of errors” in this case was not “difficult to discern or gauge.” The court held that, had
counsel timely moved to suppress the laptop, “properly impeached the credibility of the
State’s two key witnesses at trial,” and “bothered to spend the requisite time with the
discovery for a case of this magnitude, this would have been a completely different trial.”
The court stated that “[t]he volume and enormity of these errors, without question, give
rise to the reasonable probability that the result of the [p]etitioner’s trial would have been
different.”

              In this timely appeal, the State asserts the post-conviction court erred by
granting relief, pointing out that a large part of the court’s ruling was based upon a
typographical error in trial counsel’s claim for attorney’s fees and that the court applied
an incorrect standard when reviewing the petitioner’s claim that counsel performed
deficiently by failing to timely argue the motion to suppress. The petitioner concedes
that the court’s ruling contains “an error in calculation” but argues that the error is not
fatal to the court’s conclusion that counsel failed to prepare and that the lack of
preparation prejudiced the petitioner. The petitioner also asserts that the post-conviction
court did not apply an incorrect legal standard when evaluating the claims for relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

              Before a petitioner will be granted post-conviction relief based upon a
                                             -8-
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “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.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

               When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

               As an initial matter, we note that the post-conviction judge was not the
same judge who presided over the petitioner’s trial. Although the State did not produce
the trial record as an exhibit at trial, the State asked the post-conviction court to review
the trial record, which, it observed, was still in the possession of this court. The post-
conviction court’s order indicates that the court did, in fact, review the trial record before
issuing its order. Because this court does maintain the original copy of the trial transcript
as a part of the record from the petitioner’s direct appeal and because the post-conviction
court relied upon the transcript in formulating its decision, we will take judicial notice of
our own records to assist in our review. See State v. Lawson, 291 S.W.3d 864, 869
(Tenn. 2009).

                                    Lack of Preparation

              The post-conviction court found that trial counsel’s handling of the
petitioner’s case was deficient in a number of ways and determined that the “singular
                                             -9-
thread” connecting each of counsel’s deficiencies was “lack of preparation.” As prima
facie evidence of counsel’s failure to adequately prepare himself, the post-conviction
court cited trial counsel’s claim for attorney fees, which, according to the court, indicated
that counsel had devoted only 16.4 hours to working on the petitioner’s case over the
course of 15 months. As the parties agree, the post-conviction court’s conclusion in this
regard is based upon an erroneous notation in the claim form that indicates that counsel
was appointed to represent the petitioner in November 2011. Both the petitioner and trial
counsel testified, however, that counsel was not appointed to the petitioner’s case until
late November or early December 2012.

              The claim form does, however, indicate that counsel spent only 16.4 out-of-
court hours on the petitioner’s case. The post-conviction court concluded that that
amount of time was insufficient to review the “seemingly hundreds of pages of discovery,
multiple statements from multiple witnesses, and 31 hours of audio/visual discovery.”
The post-conviction court does not suggest, and the petitioner did not present any
evidence to support a conclusion, that counsel’s alleged failure to review the entirety of
the discovery materials led to counsel’s overlooking a critical piece of evidence or other
fact that might have altered the outcome of the petitioner’s trial. It is not enough to say
that counsel should have devoted more time to the discovery materials, which is certainly
the case here, but the petitioner must show that counsel’s failure to review the materials
prejudiced the petitioner. In our view, the petitioner has failed to establish any prejudice
stemming from counsel’s failure to devote sufficient time to the review of the discovery
materials. He presented no evidence that counsel overlooked, no witness that might have
been discovered, and no portion of any of the audio or visual discovery that might have
undermined the outcome of his trial.

                                    Motion to Suppress

               The post-conviction court also found that counsel’s failure to prepare led
him to make the “incredibly severe” error of failing “to timely file a Motion to Suppress a
key piece of evidence, the red laptop, and thus his oral Motion was denied out-of-hand by
the trial judge.” As proof of prejudice flowing from counsel’s failure to timely move to
suppress the laptop, the post-conviction court observed that defense counsel appointed to
represent the petitioner on “other charges stemming from the same laptop obtained by the
same search warrant” had filed a timely motion to suppress and that “on the day the
motion was to be heard, the State simply dismissed the charges.”

             That the State dismissed related charges on the same day a motion to
suppress was to be heard is, in our view, irrelevant to the petitioner’s claim. The State
could have chosen to dismiss the charges for any number of reasons that had nothing to
do with the merit of the motion to suppress. Instead, in order to prevail on a claim that
                                            -10-
his counsel was ineffective for failing “to litigate a Fourth Amendment claim
competently,” a post-conviction petitioner “must also prove that his Fourth Amendment
claim is meritorious and that there is a reasonable probability that the verdict would have
been different absent the excludable evidence in order to demonstrate actual prejudice.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Stated differently, whether counsel
rendered deficient services that prejudiced the petitioner on this matter depends entirely
on the merit of the underlying motion.

               At the evidentiary hearing, the petitioner testified that he asked trial counsel
on more than one occasion about the motion to suppress his red laptop that had been filed
by his previous counsel. Counsel testified that he did not attempt to litigate the motion
until the day of trial and that the motion was denied as untimely at that point.
Apparently, the thrust of the motion was an attack upon the search warrant executed at
the home of the petitioner’s parents. Neither the motion nor the search warrant was
presented as evidence at the evidentiary hearing. Indeed, the petitioner presented no
proof at the evidentiary hearing as to the grounds supporting the motion to suppress. As
a result, he did not establish that the motion would have been meritorious.

                Moreover, even were we to assume that counsel’s failure to timely argue
the suppression motion was deficient performance, we cannot say that suppression of the
red laptop would have affected the outcome of the petitioner’s trial. Only three videos
obtained from the laptop were played during the petitioner’s trial. One was the recorded
conversation between the petitioner and the victim’s mother. During the recorded
conversation, the petitioner told the victim’s mother that he could not “‘go and talk to the
officers. . . . The whole pants thing has me scared [sh* *less], though, because she was
grinding on me. . . . Yeah, I had an erection because she kept touching my [di* *]!’”
Nicholas Keith Phillips, slip op. at 3-4. The victim’s mother had already testified to the
contents of that conversation before the recording was played. In another recording, the
petitioner described to his mother how to use the webcam on the computer. In the final
recording, which was, importantly, played at the petitioner’s own request, the victim sits
in front of the computer playing a video game. The petitioner apparently wanted to play
that recording to show what the victim was wearing at the time of the offenses. Even
without this proof, the evidence presented by the State would have been sufficient to
support the petitioner’s convictions. The victim testified that the petitioner rubbed her
buttocks with his hand, placed his penis on her leg, and placed his fingers inside her
vagina. Although her account of the offenses evolved over time, the jury was aware of
these inconsistencies and still chose to accredit her version of events.




                                             -11-
                                    Cross-Examination

                The post-conviction court concluded that trial counsel failed to adequately
cross-examine the victim’s mother, specifically finding that trial counsel should have
utilized a letter to impeach her trial testimony. The “letter,” which was introduced as an
exhibit at the evidentiary hearing, is a single type-written page that is neither signed nor
addressed to any person. Based upon the language used, it appears to have been written
by the victim’s mother. In the letter, the victim’s mother indicates that the victim was
jealous of her mother’s relationship with the petitioner, that the victim had been viewing
pornographic websites, that the victim had engaged in “sexually inappropriate” behavior
with a friend, and that the victim had hidden in her mother’s closet while her mother and
the petitioner “were being intimate.” The court noted that trial counsel utilized the letter
when questioning the victim’s mother but concluded that counsel “never introduced this
letter into evidence at trial” and that “he never even properly impeached” her with the
contents of the letter.

                Initially, it is not clear from the record that the document in question would
have been admissible had counsel sought its introduction into evidence at trial. The
entirety of the letter is hearsay, and the petitioner presented no evidence to suggest that
the letter would have fit within an exception to the rule excluding hearsay. The record
does not establish that the letter would have been admissible as a prior inconsistent
statement pursuant to evidence rule 613 because its contents are not inconsistent with the
witness’s trial testimony. The victim’s mother admitted that she had initially believed the
petitioner’s version of events and doubted that version provided by the victim, that she
thought the victim’s version of events was “odd” and “strange,” and that the victim
repeated her allegations “in a completely normal tone of voice.” During cross-
examination, she acknowledged that the victim provided multiple versions of her story
and “couldn’t keep her stories straight.” Moreover, the victim’s mother readily admitted
at trial that she did not believe the victim initially and “that the victim was jealous of her
relationship with the [petitioner].” Nicholas Keith Phillips, slip op. at 4.

             Although counsel did not attempt to introduce the letter into evidence, he
questioned the witness with its contents, and she admitted having made the statements
contained within the letter. Thus, even assuming for the sake of argument that the letter
did qualify as a prior inconsistent statement, the letter itself would not have been
admissible because “[e]xtrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless and until the witness is afforded an opportunity to explain or deny
the same.” Tenn. R. Evid. 613(b); see State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998)
(confirming that “extrinsic evidence remains inadmissible until the witness either denies
or equivocates as to having made the prior inconsistent statement”); see also Tenn. R.
Evid. 803(26), Advisory Comm’n Comments (“To be considered as substantive evidence
                                            -12-
the statement must first meet the traditional conditions of admissibility which include the
procedural aspects of inconsistent statements as addressed in Rule 613. This reference
also makes clear that only prior inconsistent statements, and not consistent statements, are
within the ambit of this rule.”).

              Finally, although trial counsel did not attempt to introduce the letter into
evidence, he was able, through his questioning of the victim and her mother, to bring
most of the information in the letter to the attention of the jury. For example, in addition
to the admissions by the victim’s mother noted above, during cross-examination, the
victim herself admitted that she had hidden in her mother’s closet while her mother and
the petitioner were engaging in sexual relations. Under these circumstances, the
petitioner cannot establish that he was prejudiced by counsel’s handling of the letter.

              The post-conviction court also concluded that trial counsel’s cross-
examination of the victim was deficient because he failed to introduce into evidence
“multiple statements, via letters, that amounted to multiple versions of the testimony she
was giving at trial.” The primary problem with the post-conviction court’s ruling in this
regard is that the petitioner failed to present at the evidentiary hearing a single letter
written by the victim, let alone multiple letters written by the victim that were
inconsistent with her trial testimony. At trial, the victim acknowledged that she was
jealous of her mother’s relationship with the petitioner and that she had often thought that
her mother would spend more time with her if the petitioner were out of the picture. The
victim also admitted that she had told several different versions of the offenses over the
course of time. When trial counsel attempted to refresh her recollection with letters she
had written, the victim acknowledged having written the letters, and, when asked about
specific information contained therein, she fully acknowledged having made the
statements. Thus, for the reasons outlined above, the letters themselves would not have
been admissible. Additionally, other witnesses confirmed that the victim had given
multiple accounts of the offense prior to trial. Consequently, the petitioner did not
establish either deficient performance in counsel’s cross-examination of the victim or
prejudice flowing therefrom.

               The trial record in this case evinces some struggles of trial counsel, and,
accordingly, the post-conviction court’s frustration with trial counsel’s representation is
understandable. A post-conviction proceeding, however, is a collateral attack upon the
conviction judgments in which the petitioner bears a burden of proof as we have
illustrated above. A grant of post-conviction relief must be predicated upon the
fulfillment of this burden, which, in this case, the petitioner failed to accomplish.




                                            -13-
                                     Conclusion

             In sum, the evidence preponderates against the findings of the post-
conviction court that trial counsel performed deficiently and that his deficient
performance prejudiced the petitioner. Accordingly, we reverse the ruling of the post-
conviction court and vacate the order granting post-conviction relief.


                                                 _________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




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