Douglas W. Curtis Case

This is a petition for post-conviction relief filed by Petitioner, Mr. Douglas W. Curtis (“Petitioner”), on January 24, 2018, and opposed by Respondent, the State of Tennessee (“the State”). The Court heard the Petition on May 22, 2018, taking the matter under advisement. Mr. Curtis alleges that he received ineffective assistance of counsel in his trial and is, accordingly, entitled to post-conviction relief.

STATEMENT OF FACTS

Douglas W. Curtis was indicted on four counts of Rape of a Child, a Class A felony. This case arose after the victim, who was twenty-nine years old at the time of trial, came forward with allegations that the petitioner, her father, raped her when she was a young girl. At his trial, Petitioner was represented by John.

S. Colley III (herein after referred to as “trial counsel”). At trial, the State introduced evidence of a recording of a phone conversation between the victim and Petitioner, as well as testimony of the victim. On August 4, 2014, a hearing was held on the State’s Motion to exclude the opinion testimony of Mr. Tom Owen, an expert Petitioner’s trial counsel had hired to challenge the validity of the audio recording. Petitioner alleged the recording was not a true and accurate copy of the original and that certain pieces had been spliced. The Court ruled that both Mr. Owen and Mr. Douglas Lacy, the State’s expert, were qualified to testify as experts in the field of audio forensics. On August 17, 2014, the State and trial counsel for Petitioner, stipulated to the authenticity of the chain of custody of the recording.
The case was tried before a jury on August 19, 2014. The State introduced the recording as well as the victim’s testimony. At trial, the chain of custody of the recording was not challenged. Trial counsel decided not to call Mr. Owen to testify, both as a trial strategy and due to fear that Mr. Owen’s testimony would not add much or even be credible. Subsequently, Petitioner was found guilty on all four charges of Rape of a Child. Petitioner received a sentence of twenty years for each count, to be served consecutively for a total of eighty years. A Motion for a New Trial was filed and denied after a hearing. Petitioner appealed this matter on the basis of insufficiency of the evidence. The Criminal Court of Appeals affirmed the judgement of the trial court. On January 24, 2018, Petitioner filed his Petition for Post-Conviction Relief. The grounds for post-conviction relief asserted by Petitioner rests on the claim of ineffective assistance of counsel. Petitioner alleges trial counsel erred in several respects:
1. Stipulating to the authenticity of the chain of custody of the recorded phone call;
2. Failing to introduce testimony from an expert witness to challenge said call and failing to make any attempt at challenging the call at all;
3. Failing to establish an alibi for one of the counts of child abuse;
4. Failing to review the Bill of Particulars with Petitioner;
5. Failing to adequately advise Petitioner of the advantages and disadvantages of accepting the State’s offer to plea versus having a trial.
The hearing for this Petition for Post-Conviction Relief took place on May 22, 2018.
STANDARD OF REVIEW
Tennessee’s Post-Conviction Procedure Act permits a person in custody to petition for post-conviction relief within one year after entry of a final judgment. Tenn. Code Ann. § 40-30-102(a) (2017). Post-conviction relief may be granted 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.” Tenn. Code Ann. § 40-30-103 (2017). The petition “shall include allegations of fact supporting each claim for relief set forth in the petition and allegations of fact explaining why each ground for relief was not previously presented in any earlier proceeding.” Tenn. Code Ann. § 40-30-104(e) (2017). The Act further provides:
The petition must contain a clear and specific statement of all grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. Failure to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition.

Tenn.

Code Ann. § 40-30-106(d) (2017). At the hearing of a petition, “the petitioner shall have the burden of proving the allegations of fact by clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2017). “If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable . . . the court shall vacate and set aside the judgment . . . .” Tenn. Code. Ann. § 40-30-111 (2017).

Mr. Curtis alleges his constitutional right to effective assistance counsel under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution was abridged. See generally, U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9. The denial of a defendant’s Sixth Amendment right to counsel is also a denial of the defendant’s right to be heard by counsel under the Tennessee Constitution. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see also Tenn. Const. art. I, § 9. The Supreme Court of the United States has, for some time, maintained that “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)). When the accused is not accorded effective assistance of counsel, his conviction cannot stand. Goosby v. State, 917 S.W.2d 700, 707 (Tenn. Crim. App. 1995) (citing Harris v. State, 875 S.W.2d 662, 665 (Tenn.

1994)).
In Strickland, the United States Supreme Court articulated a two-pronged test for determining whether counsel’s representation was ineffective and, therefore, justifies the vacation of the conviction:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. A defendant claiming ineffective assistance of counsel "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. In Tennessee, the objective deficiency standard is “simply whether the advice given, or the services rendered by the attorney, are [sic] within the range of competence demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at 936. To show this, the petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Goosby, 917 S.W.2d at 704 (citing Strickland, 466 U.S. at 694).
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694. While merely showing that “the errors had some conceivable effect on the outcome of the proceeding” is insufficient to meet this burden, “a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.” Id. at 693. In bringing a petition for post-conviction relief, “[a] petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy by his counsel, and cannot criticize 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); see also Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (“It cannot be said that incompetent representation has occurred merely because other lawyers, judging from hindsight, could have made a better choice of tactics.”).

Tennessee appellate courts have ruled several times that malfunctioning trial strategy does not form a sufficient basis for overturning a conviction on appeal. Even so, the Tennessee Supreme Court has stated while “[t]his court does not sit to second guess strategic and tactical choices made by trial counsel[,] when counsel's choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel.” Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting United States v. DeCoster, 487 F.2d

1197, 1201 (D.C. Cir. 1973)).
CONCLUSIONS OF LAW