            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 10, 2004 Session
                          Heard at University of Tennessee at Martin1

                    TIMOTHY JOHNS v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Shelby County
                              No. P-23804    W. Fred Axley, Judge



                       No. W2003-00677-CCA-R3-PC - Filed April 12, 2004


The petitioner appeals from the denial of his post-conviction petition. The petitioner had pled guilty
to rape of a child under age thirteen in exchange for a sentence of fifteen years at 100%. On appeal,
the petitioner claims that he received ineffective assistance of counsel. The petitioner also contends
that the post-conviction court erred by denying his request to call two witnesses and by denying his
request to make an offer of proof regarding the testimony of those witnesses. The post-conviction
court also excluded certain medical records of the victim. After thorough review, we reverse the
post-conviction court’s judgment and remand the case to the post-conviction court for a new hearing.
At the new hearing, the post-conviction court should admit the testimony of the petitioner’s two
witnesses and the victim’s medical records. Should the court exclude certain portions of the
testimony, offers of proof shall be allowed in accordance with Tennessee Rule of Evidence 103.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER ,
J., joined. JOE G. RILEY , J., filed a separate concurring opinion.

Chesney Falk McAfee, Memphis, Tennessee, for the appellant, Timothy Johns.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and William Bond, Assistant District Attorney
General, for the appellee, State of Tennessee.




        1
          This case was heard on the campus of the University of Tennessee at Martin as a special project of the
Tennessee Court of Criminal Appeals in furtherance of the educational process of students and faculty.
                                              OPINION

         Timothy Johns, the petitioner, was indicted for rape of his five-year-old daughter during a
time period between January 29, 1999, and February 2, 1999. The petitioner entered a plea of guilty
to the indicted charge of rape of a child in exchange for an agreed sentence of fifteen years at 100%.
A pro se petition for post-conviction relief was timely filed, and two amended petitions were
subsequently filed after appointment of post-conviction counsel. After an evidentiary hearing, the
post-conviction court denied the relief sought by the petitioner. The appeal of that denial raises three
issues:

       1. Whether counsel’s representation was so defective that the petitioner’s guilty plea
          was not voluntarily and intelligently made;
       2. Whether the post-conviction court erred in denying the petitioner’s effort to call
          two witnesses or allow an offer of proof of their testimony; and
       3. Whether the post-conviction court erred in disallowing introduction of certain
          medical records.

                                     Post-Conviction Hearing

        The petitioner testified that he was first contacted and questioned about the offense in
February of 1999. He denied any involvement at that interrogation. After his indictment, he was
arrested on May 20, 1999. At his initial appearance, he was appointed representation by the public
defender’s office but without a specific attorney. The petitioner first met with his assigned attorney
in June. At that meeting, he provided counsel with the names of witnesses and contact information
concerning the witnesses. These witnesses ostensibly would have known that during a portion of
the time the victim was raped, she was in the care of her godparents, Pamela and Rosco Coleman.
The petitioner stated that counsel promised an investigation would be conducted.

       The next meeting the petitioner had with counsel was on August 12th in the courtroom
lockup area. The petitioner had attempted unsuccessfully to contact his counsel in the intervening
time. The petitioner stated he was not contacted by any representative of the public defender’s office
between the meetings with his counsel. The petitioner did not see any discovery materials, and they
were not discussed. He stated that he was diagnosed as manic depressive and was taking Zoloft,
Mellaril, and Elavil, in combination. During his incarceration, he was also diagnosed with
gonorrhea.

        The petitioner stated that his plea of guilty was not voluntary but was only entered because
his counsel “told me that he has done all that he could do, that there was nothing else that he would -
that he could see as happening.”

       During cross-examination, it was established that the petitioner’s first contact with his
appointed counsel was June 28th. The witnesses he provided counsel had custody of the victim at
the time of the rape; however, she was also with the petitioner during part of the period of January,


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1999. On August 12th, the second meeting with counsel, the petitioner was advised that the State
had offered a fifteen-year sentence upon his plea of guilty. Counsel advised the petitioner to accept
the offer. The cross-examination referred to the transcript containing the questioning of the
petitioner in his waiver of trial by jury and request for acceptance of the guilty plea. The petitioner
agreed that he had answered the trial judge’s questions as reflected in the transcript but stated he did
not remember any of it.

       The petitioner’s counsel next attempted to call two witnesses purportedly to show facts
available but undiscovered due to trial counsel’s failure to investigate. One witness, the victim,
would allegedly deny the petitioner’s involvement in the crime. The other witness, the victim’s
grandmother, would testify that the victim’s statement given to the State investigators used
terminology which the victim did not use and that the victim and the petitioner had lived with her
without problems. The post-conviction court disallowed the witnesses and their offer of proof.

        Trial counsel stated that he first met with the petitioner on June 28, 1999. At that time, the
only item counsel had in his file was a copy of the indictment of the petitioner on which counsel
made notes from their conversation. Counsel stated he did not recall that the names given him were
witnesses but “who his relatives were and where he was living[.]” Subsequently, counsel filed a
motion for discovery and received the materials in response. He did not recall whether he shared the
discovery material with the petitioner.

      Counsel’s next meeting with the petitioner was on August 12th, and the State’s offer was
conveyed to the petitioner. Counsel, when asked if the petitioner requested a trial, stated as follows:

       To the best of my recollection that he did not want a trial, and I don’t know his exact
       words. I’d have to paraphrase, but the gist of it was he wanted to enter a guilty plea
       and get it over with.

Counsel stated the petitioner never requested an investigation or for him to contact anyone.

        On cross-examination, counsel stated that his time log reflected a one-half hour meeting with
the petitioner on June 28th, filing for discovery on June 29th, a phone call and letter to the district
attorney’s office, and receipt of discovery materials. The file did not reflect nor did counsel recall
having contacted any individuals noted in his interview notes. The file did not reflect that any
investigation was undertaken by the public defender’s office or any attempts to contact the petitioner
other than the contacts in court. Counsel’s time sheet reflected one hour on August 12th, which
included talking with the petitioner and the district attorney, completion of guilty plea forms, and
entry of the plea.

        A supervisor from the public defender’s office testified that it was their policy to “attempt
investigation” in all Class A and B felony cases “where possible.” If none were conducted, a notation
should be entered explaining the reason.



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        The petitioner attempted to introduce medical records which purported to show that the
victim was examined for sexual abuse on June 18th allegedly committed by another, while the
petitioner was in custody. These records were disallowed.

                                               Analysis

         On appeal, the petitioner contends that the post-conviction court erred by denying his request
to call two witnesses and by denying his request to make an offer of proof regarding the testimony
of those witnesses. The post-conviction court denied the petitioner’s request to call the victim and
the victim’s grandmother because it found that the testimony from those witnesses was irrelevant
as to whether Counsel was ineffective. The court stated:

               What the petitioner seems to be traveling on is that had [Counsel] or
               his investigator asked the questions or pursued the investigation with
               these two, they would have determined number one, it never
               happened. We’re–at the time we’re in a guilty plea stage, that’s a far
               piece from where it is that it never happened or that she didn’t use
               these kind of terms. And I say that this is not the vehicle for that.

Following this ruling, the petitioner’s counsel asked the post-conviction court, “Can I put on an offer
of proof, your Honor?” The post-conviction court replied, “I don’t see the need to. I’m telling you
now, it’s not the law. So that’s denied.”

         The general rule is that “‘assuming an offer of proof has been seasonably made, it is error for
the trial court to refuse to permit counsel to state what evidence he is offering.’” Alley v. State, 882
S.W.2d 810, 815-16 (Tenn. Crim. App. 1994) (quoting 89 A.L.R., Offer of Proof–Ruling–Error, §
2 at 283 (1963)). Tennessee Rule of Evidence 103 provides as follows:

               (a) Effect of Erroneous Ruling. Error may not be predicated upon
               a ruling which admits or excludes evidence unless a substantial right
               of the party is affected, and

               (1) Objection. In case the ruling is one admitting evidence, a timely
               objection or motion to strike appears of record, stating the specific
               ground of objection if the specific ground was not apparent from the
               context; or

               (2) Offer of Proof. In case the ruling is one excluding evidence, the
               substance of the evidence and the specific evidentiary basis
               supporting admission were made known to the court by offer or were
               apparent from the context.




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                Once the court makes a definitive ruling on the record admitting or
                excluding evidence, either at or before trial, a party need not renew an
                objection or offer of proof to preserve claim of error for appeal.

                (b) Record of Offer and Ruling. The court may add any other or
                further statement which shows the character of the evidence, the form
                in which it was offered, the objection made, and the ruling. It shall
                permit the making of an offer in question and answer form.

This Court explained, “Consequently, though not explicitly stated [in Tennessee Rule of Evidence
103], it is apparent that courts are required, in appropriate circumstances, to allow offers of proof
when the evidence is excluded so as to enable consideration of the issue on appeal.” Alley, 882
S.W.2d at 815-16. In Alley, this Court held that it is error for a trial court to refuse to grant an offer
of proof in certain circumstances. Id. at 816. This Court stated:

                In circumstances in which it is obvious from the record that the
                proffered evidence could, under no circumstances, be relevant to the
                issues, a trial court’s refusal to grant an offer of proof is not error.
                However, if the obvious incompetence or irrelevance is not readily
                apparent from the record, it is error to exclude any reasonable offer
                which demonstrates the relevance and general import of the excluded
                evidence.

                        The reason for such a rule is quite clear. When a party
                contends that the trial court erred in excluding testimony, the need for
                a description of that testimony is compelling. Absent such a showing,
                an appellate court cannot determine whether the exclusion was error,
                and if error is found, whether the error is harmless. . . .

                If the record of a post-conviction proceeding does not contain all
                evidence that this court may find admissible, we cannot determine
                whether the evidence preponderates against the trial court’s findings.
                Nor can we determine whether the trial court erred in excluding
                evidence that may arguably be relevant to issues raised in the post-
                conviction proceeding.

Id. at 816-17. While there are a number of ways of making an offer of proof, “the better practice”
is for trial counsel to present the actual testimony at issue in question and answer form. Id. at 817
(citing Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 804 (Tenn. 1975)); Neil P. Cohen, et
al., Tennessee Law of Evidence, § 1.03[5][d] at 1-24 (4th ed. 2000).

       The petitioner contends that Counsel was ineffective because he advised the petitioner to
plead guilty without conducting a thorough investigation of the crime and interviewing key


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witnesses. The petitioner argues that his guilty plea was involuntary because of this ineffective
assistance of counsel. The petitioner further argues that, had Counsel properly investigated the crime
and interviewed witnesses, Counsel would have discovered facts that would have helped the
petitioner’s defense and then could have advised the petitioner accordingly. According to the
petitioner’s brief, the victim would have testified that the petitioner was not the one who molested
her. Also according to the petitioner’s brief, the victim’s grandmother was expected to testify that
the victim was not afraid of her father, that during the years he had custody of the victim there were
never any problems, and that, at the time of the rape, the victim was living with her aunt and had
been doing so for a month. The victim’s grandmother also was expected to testify that the victim’s
statement taken by the police was inconsistent with the language the victim herself used at the time
to refer to her private areas. The petitioner stated that “[t]he witnesses’ testimony was expected to
touch on several more issues than set out in this section of the brief, but since there was no proffer
allowed, what the witnesses’ testimony would have been is speculative.”

        Following the analysis set forth in Alley, this Court must determine whether the excluded
evidence was obviously incompetent or irrelevant so as to allow the denial of the offer of proof.
Alley, 882 S.W.2d at 817. We conclude that the excluded testimony is not obviously incompetent
or per se irrelevant because the testimony was directly related to the petitioner’s ineffective
assistance claim. The petitioner contends that Counsel was ineffective because he advised petitioner
to plead guilty after failing to investigate the crime and interview key witnesses, so the testimony of
the victim and the victim’s grandmother was relevant to show what Counsel would have discovered
had he interviewed these witnesses. The testimony of those witnesses may well establish that
Counsel was ineffective because of his failure to properly investigate the crime before advising the
petitioner to plead guilty. Since the testimony is not obviously incompetent or irrelevant, the post-
conviction court should have allowed counsel to make the requested offers of proof. Absent a record
of the proposed testimony from the two witnesses, we are unable to say that the exclusion was
harmless.

        The post-conviction court also excluded the medical records of the victim’s visit to
LeBonheur Children’s Hospital on June 18, 1999, because it found that the medical records were
irrelevant. We believe the post-conviction court abused its discretion by excluding the medical
records because the records are relevant to show what Counsel would have discovered had he
conducted a proper investigation of the crime. Apparently, the records indicate that the victim made
allegations of sexual abuse against a person in one of the households listed in counsel’s notes. The
petitioner was in jail at this time. Based upon the information contained in the medical records,
Counsel may have advised the petitioner differently regarding the decision to either plead guilty or
go to trial. Therefore, we conclude that the post-conviction court erred by excluding the medical
records.

                                             Conclusion

       We conclude that the petitioner is entitled to a new hearing in order to determine whether he
received ineffective assistance of counsel. We reverse the post-conviction court’s judgment and


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remand the case to the post-conviction court for a new hearing. At the new hearing, the post-
conviction court should admit the testimony of the petitioner’s two witnesses and the victim’s
medical records. Should the court exclude certain portions of the testimony, offers of proof shall be
allowed in accordance with Tennessee Rule of Evidence 103. The post-conviction court shall allow
the parties to introduce proof or argue both as to deficiency and prejudice, and the post-conviction
court shall make further findings as to both.




                                                      ____________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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