IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 7, 1999
AUGUST 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk
GARY LEN ROLLINS, * C.C.A. # 03C01-9808-CR-00296
Appellant, * KNOX COUNTY
VS. * Honorable Ray L. Jenkins, Judge
STATE OF TENNESSEE, * (Post-Conviction/Aggravated Rape)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE M. JEFFRESS PAUL G. SUMMERS P. O. Box 2664 Attorney General & Reporter Knoxville, TN 37901 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
RANDALL EUGENE NICHOLS District Attorney General
G. SCOTT GREEN Assistant District Attorney P. O. Box 1468 Knoxville, TN 37901-1468
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge OPINION
The petitioner, Gary Len Rollins, appeals the trial court’s dismissal of his
petition for post-conviction relief. The petitioner contends that the trial court
erred in dismissing his petition on the following grounds:
(1) The indictment in his case was constitutionally defective because it did not allege a specific mens rea. (2) The petitioner received ineffective assistance of counsel at trial for counsel’s failure to depose a dying defense witness and failure to move for sanctions in response to “coached” testimony.
After a careful review of the record, we AFFIRM the judgment of the trial court.
Procedural History
On July 9, 1992, the petitioner was convicted of the aggravated rape of
his two-year-old son and was sentenced to fifteen years in prison. On January 9,
1995, the conviction and sentence were affirmed on direct appeal. See State v.
Gary Rollins, Sr., No. 03C01-9308-CR-00250 (Tenn. Crim. App. filed January 9,
1995, at Knoxville). Subsequently, the petitioner filed a petition seeking post-
conviction relief which the trial court denied, after an evidentiary hearing, on July
8, 1998. From this denial, the petitioner now appeals.
ANALYSIS
Defective Indictment
The petitioner has relied exclusively upon the holding of a panel of this
Court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.
filed June 25, 1996, at Nashville), rev’d., 954 S.W.2d 725 (Tenn. 1997), to assert
that his indictment was insufficient and defective. As acknowledged by
petitioner, after the filing of the instant petition but before the trial court’s ruling,
the Tennessee Supreme Court reversed the Hill decision in State v. Hill, 954
-2- S.W.2d 725 (Tenn. 1997). While that decision involved indictments after the
Sentencing Reform Act of 1989, its analysis extends to indictments under the
1979 Act as well. See Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998). The
indictment in the instant case and that in Dykes are substantially similar.
Therefore, we conclude the indictment is not defective.
Ineffective Assistance of Counsel
Next, the petitioner contends that his trial counsel was ineffective for
failing to depose a dying defense witness and failing to move for “some type of
sanction” in response to the coached testimony of a trial witness. This Court
reviews a claim of ineffective assistance of counsel under the standards of
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the
burden to prove that (1) the attorney’s performance was deficient, and (2) the
deficient performance resulted in prejudice to the defendant so as to deprive him
of a fair trial. See Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990).
Further, the petitioner’s burden of proof in all post-conviction cases filed
after May 10, 1995, is by clear and convincing evidence, see Tenn. Code Ann. §
40-30-210(f), and reviewing courts must indulge a strong presumption that
counsel’s conduct falls within the range of reasonableness and must evaluate
the performance from counsel’s perspective at the time of the alleged error, see
Strickland, 466 U.S. at 695. The petitioner must show that there is a reasonable
probability that but for counsel’s error, the result of the proceeding would have
been different.
Finally, the trial judge’s findings of fact on post-conviction hearings are
conclusive on appeal unless the evidence preponderates otherwise. See Butler,
-3- 789 S.W.2d 898, 899; Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.
1995). The trial court’s findings of fact are afforded the weight of a jury verdict,
and this Court is bound by the trial court’s findings unless the evidence in the
record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App.
1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court
may not reweigh or reevaluate the evidence, nor substitute its inferences for
those drawn by the trial judge. See Henley, 960 S.W.2d at 578-79; Massey v.
State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of
witnesses and the weight and value to be given to their testimony are resolved
by the trial court, not this Court. See Henley, 960 S.W.2d at 579; Black, 794
S.W.2d at 755. The burden of establishing that the evidence preponderates
otherwise is on the petitioner. See Henley, 960 S.W.2d at 579; Black, 794
S.W.2d at 755.
Petitioner first asserts that trial counsel was ineffective in his failure to
depose a potential defense witness before that witness died, admittedly,
unexpectedly. Regarding this failure, the trial court at the evidentiary hearing
heard and accredited testimony from petitioner’s trial counsel and made the
following finding:
Now it boils down to clairvoyance. Was it ineffective for Mr. Talman to anticipate the imminent death of Mr. Knuckles when the petitioner/defendant did not, even though much closer to him? Now consider further the fact that even if deposed what would be the efficacy of that testimony, if admitted, when shown that all he could testify to would be that if present all the time the defendant feels is of important, he saw or heard nothing. This may place this in proper [perspective]. The issue is without merit. . . .
Petitioner has failed to demonstrate any error in the trial court’s reasoning
or conclusion. The petitioner acknowledged that the witness died unexpectedly
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 7, 1999
AUGUST 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk
GARY LEN ROLLINS, * C.C.A. # 03C01-9808-CR-00296
Appellant, * KNOX COUNTY
VS. * Honorable Ray L. Jenkins, Judge
STATE OF TENNESSEE, * (Post-Conviction/Aggravated Rape)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE M. JEFFRESS PAUL G. SUMMERS P. O. Box 2664 Attorney General & Reporter Knoxville, TN 37901 MICHAEL J. FAHEY, II Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
RANDALL EUGENE NICHOLS District Attorney General
G. SCOTT GREEN Assistant District Attorney P. O. Box 1468 Knoxville, TN 37901-1468
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS, Judge OPINION
The petitioner, Gary Len Rollins, appeals the trial court’s dismissal of his
petition for post-conviction relief. The petitioner contends that the trial court
erred in dismissing his petition on the following grounds:
(1) The indictment in his case was constitutionally defective because it did not allege a specific mens rea. (2) The petitioner received ineffective assistance of counsel at trial for counsel’s failure to depose a dying defense witness and failure to move for sanctions in response to “coached” testimony.
After a careful review of the record, we AFFIRM the judgment of the trial court.
Procedural History
On July 9, 1992, the petitioner was convicted of the aggravated rape of
his two-year-old son and was sentenced to fifteen years in prison. On January 9,
1995, the conviction and sentence were affirmed on direct appeal. See State v.
Gary Rollins, Sr., No. 03C01-9308-CR-00250 (Tenn. Crim. App. filed January 9,
1995, at Knoxville). Subsequently, the petitioner filed a petition seeking post-
conviction relief which the trial court denied, after an evidentiary hearing, on July
8, 1998. From this denial, the petitioner now appeals.
ANALYSIS
Defective Indictment
The petitioner has relied exclusively upon the holding of a panel of this
Court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.
filed June 25, 1996, at Nashville), rev’d., 954 S.W.2d 725 (Tenn. 1997), to assert
that his indictment was insufficient and defective. As acknowledged by
petitioner, after the filing of the instant petition but before the trial court’s ruling,
the Tennessee Supreme Court reversed the Hill decision in State v. Hill, 954
-2- S.W.2d 725 (Tenn. 1997). While that decision involved indictments after the
Sentencing Reform Act of 1989, its analysis extends to indictments under the
1979 Act as well. See Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998). The
indictment in the instant case and that in Dykes are substantially similar.
Therefore, we conclude the indictment is not defective.
Ineffective Assistance of Counsel
Next, the petitioner contends that his trial counsel was ineffective for
failing to depose a dying defense witness and failing to move for “some type of
sanction” in response to the coached testimony of a trial witness. This Court
reviews a claim of ineffective assistance of counsel under the standards of
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the
burden to prove that (1) the attorney’s performance was deficient, and (2) the
deficient performance resulted in prejudice to the defendant so as to deprive him
of a fair trial. See Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990).
Further, the petitioner’s burden of proof in all post-conviction cases filed
after May 10, 1995, is by clear and convincing evidence, see Tenn. Code Ann. §
40-30-210(f), and reviewing courts must indulge a strong presumption that
counsel’s conduct falls within the range of reasonableness and must evaluate
the performance from counsel’s perspective at the time of the alleged error, see
Strickland, 466 U.S. at 695. The petitioner must show that there is a reasonable
probability that but for counsel’s error, the result of the proceeding would have
been different.
Finally, the trial judge’s findings of fact on post-conviction hearings are
conclusive on appeal unless the evidence preponderates otherwise. See Butler,
-3- 789 S.W.2d 898, 899; Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.
1995). The trial court’s findings of fact are afforded the weight of a jury verdict,
and this Court is bound by the trial court’s findings unless the evidence in the
record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App.
1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court
may not reweigh or reevaluate the evidence, nor substitute its inferences for
those drawn by the trial judge. See Henley, 960 S.W.2d at 578-79; Massey v.
State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of
witnesses and the weight and value to be given to their testimony are resolved
by the trial court, not this Court. See Henley, 960 S.W.2d at 579; Black, 794
S.W.2d at 755. The burden of establishing that the evidence preponderates
otherwise is on the petitioner. See Henley, 960 S.W.2d at 579; Black, 794
S.W.2d at 755.
Petitioner first asserts that trial counsel was ineffective in his failure to
depose a potential defense witness before that witness died, admittedly,
unexpectedly. Regarding this failure, the trial court at the evidentiary hearing
heard and accredited testimony from petitioner’s trial counsel and made the
following finding:
Now it boils down to clairvoyance. Was it ineffective for Mr. Talman to anticipate the imminent death of Mr. Knuckles when the petitioner/defendant did not, even though much closer to him? Now consider further the fact that even if deposed what would be the efficacy of that testimony, if admitted, when shown that all he could testify to would be that if present all the time the defendant feels is of important, he saw or heard nothing. This may place this in proper [perspective]. The issue is without merit. . . .
Petitioner has failed to demonstrate any error in the trial court’s reasoning
or conclusion. The petitioner acknowledged that the witness died unexpectedly
-4- and yet would argue that this Court hold trial counsel ineffective for failing to
foresee the death. Further, the efficacy of the witness’ testimony is dubious: (1)
the witness’ testimony would not have been that the offenses did not occur, but
rather, in a context of an alibi defense, that he simply did not see them occur,
and (2) some similiar testimony was already introduced through alternate
witnesses. Accordingly, we conclude that the petitioner has failed to
demonstrate that his trial counsel was ineffective and that prejudice resulted.
Second, petitioner argues that trial counsel was ineffective in failing to
make a motion for sanctions in response to allegedly “coached” testimony at trial.
Trial counsel vigorously cross-examined the “coached” witness at trial in front of
the jury as well as raising the issue on direct appeal. Failure to make a motion
for sanctions simply does not constitute ineffectiveness when trial counsel
pursued the reasonable strategy of exposing the witness before the jury by
cross-examination. Further, it is entirely unclear what prejudice the petitioner
even alleges. Therefore, we conclude that trial counsel was not ineffective.
Accordingly, we conclude, on both ineffectiveness claims, that the
evidence does not preponderate against the trial court’s findings.
CONCLUSION
The judgment of the trial court is AFFIRMED.
______________________________ JOHN EVERETT WILLIAMS, Judge
CONCUR:
-5- _______________________________ JOSEPH M. TIPTON, Judge
_______________________________ ALAN E. GLENN, Judge
-6-