Post-Conviction Granted Because Defense Attorney Failed to Obtain Impeaching Evidence Against Witness

Note: The defendant/petitioner has since been reconvicted of aggravated sexual battery, and so, this blog post will not use the term “alleged.”

In White County, Tennessee, the last petitioner to win a post-conviction on appeal was a Spencer resident convicted of one count of rape of a child and two counts of aggravated sexual battery.  This case is all the more interesting because some people think that appellate courts are less likely to reverse cases involving sexual crimes than cases involving “normal” crimes, such as DUI, simple possession, etc.  There isn’t any hard evidence for this opinion (that I know of), but it does make sense.  At the very least, lawyers, judges, and the public should take notice when an appellate court reverses a sexual conviction.

This case hinged on the credibility of the witnesses.  At trial, all three victims claimed that their mother was away from home on the night in question.  One of the victims testified that her mother was snowed in overnight while visiting her father in prison, and on cross-examination, said that she was “certain” that her mother was away.  However, in a videotaped interview with the Department of Children’s Services, the victim had said that her mother was home when the incidents occurred.  Corroborating the victims’ testimony, the mother stated that she was away visiting her incarcerated husband on the night in question.

After the State’s proof, the defense presented three witnesses.  First, a nurse practitioner testified that she had examined the victims and saw no sign of injury.  However, on cross-examination she admitted that physical evidence was unlikely to remain unless the touching occurred over a prolonged period.  Next, the defendant’s girlfriend testified that, when she visited the victims’ house after the incidents, the victims did not appear to be afraid of the defendant.  Finally, the defendant denied touching the victims and being at the house the night the mother was away.

At the post-conviction hearing, a lieutenant showed that, according to Tennessee Department of Correction visitor logs, the mother did not see her husband on the night in question.  Further, trial counsel did not obtain these logs, despite the mother’s previous statement that she drove to Nashville to visit her husband in prison and was snowed in.  Counsel reasoned that the logs were unimportant because one of the victims said in her statement that her mother was home when the offense occurred.  However, counsel admitted that it would have helped to have records demonstrating the mother never visited her husband in prison.

The post-conviction court found that trial counsel did not think the TDOC records were necessary because the issue was “well-clouded.”  Further, the court found that counsel sought to impeach the adult witnesses with prior convictions and the children with the nurse practitioner’s testimony.  Further, the trial court stated that the absence of the records did not “erode its confidence in the [p]etitioner’s conviction.”  Thus, the court found that counsel’s performance was not deficient and that the petitioner was not prejudiced as a result of counsel’s representation.

On appeal, the Tennessee Court of Criminal Appeals noted that the prison visitation logs were essential to the defense because they would have contradicted the mother’s testimony and demonstrated that the offenses occurred outside the time relied upon by the State.  Importantly, the court found that the convictions rested solely on the credibility of the witnesses and the proof only marginally exceeded the standard required to convict.  These finding allowed the appellate court to distinguish this case from the general rule that the mere failure to employ additional modes of impeachment is not ineffective.  See Haymon v. State, No. W2005-01303-CCA-R3-PC (Tenn. Crim. App. July 10, 2016) (citing Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980)).  Since this case turned exclusively on the crediblity of the witnesses and the TDOC records would have “irrefutably impeached [the mother’s] crediblity,” the court could not say that counsel’s failure to obtain the records did not affect the outcome of the proceedings.  Accordingly, the court of criminal appeals reversed the petitioner’s convictions and remanded the case for a new trial.

Blanton v. State, No. M2011–1454-CCA-R3-PC (Tenn. Crim. App. Oct. 9, 2012)

P.S. The opinion was written by Judge Roger A. Page, now Justice Roger A. Page.

 

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