IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED OCTOBER 1998 SESSION December 10, 1998
Cecil W. Crowson RICKY EARL MELVIN, ) Appellate Court Clerk ) NO. 01C01-9707-CR-00264 Appellant, ) ) Davidson County v. ) ) Honorable Thomas H. Shriver, STATE OF TENNESSEE, ) Judge ) Appellee. ) (Post-Conviction)
For The Appellant: For The Appellee:
Marian C. Fordyce John Knox Walkup (at trial) Attorney General and Reporter 129 Second Ave., North Nashville, TN 37201-1901 Daryl J. Brand Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Judson W. Phillips Nashville, TN 37243-0493 (on appeal) 315 Deaderick St., Ste. 2395 Victor S. Johnson III Nashville, TN 37238 District Attorney General
Kymberly Haas Assistant District Attorney General Washington Sq., Ste. 500 222-2nd Ave., North Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Ricky Earl Melvin, appeals the dismissal of his petition for post-
conviction relief by the Davidson County Criminal Court. Having been convicted of
seven counts of aggravated rape and serving an effective sentence of sixty-five years in
the Department of Correction, the petitioner contends he received ineffective assistance
of counsel. After a careful review of the record, we affirm the judgment of the trial court.
PROCEDURAL HISTORY
After his first trial ended with a hung jury, the petitioner was convicted at his
second trial on seven counts of aggravated rape. The convictions were based upon
numerous incidents involving two females under thirteen years of age. He received an
effective sentence of eighty-five years. Upon appeal to this court, the sentence was
reduced to an effective term of sixty-five years. See State v. Melvin, 913 S.W.2d 195
(Tenn. Crim. App. 1995). Permission to appeal was denied by the Tennessee Supreme
Court.
The petitioner timely filed a petition for post-conviction relief alleging ineffective
assistance of counsel. After an evidentiary hearing, the trial court dismissed the
petition.
CONTENTIONS OF PETITIONER
The sole issue in this appeal is whether the petitioner was deprived of effective
assistance of counsel at his trial. The petitioner contends trial counsel was ineffective
in the following respects:
1. failing to challenge the testimony of the nurse practitioner;
2. failing to utilize the testimony of Dr. Irene Ratner;
3. failing to interview other possible suspects;
2 4. failing to have a victim examined by an expert;
5. failure to seek funding for an investigator; and
6. failing to conduct an adequate investigation of the facts and witnesses.
POST-CONVICTION HEARING
The only witness to testify at the post-conviction hearing was the petitioner’s trial
counsel, Thomas T. Overton. A summary of pertinent portions of his testimony follows.
At the trial a nurse practitioner testified as to a victim’s physical findings that
were consistent with sexual abuse. Overton interviewed the witness prior to trial.
Although he did not recall whether he filed a motion in limine to prohibit the testimony,
there was no legal basis to do so.
The petitioner’s family retained the services of Dr. Irene Ratner for an evaluation.
Overton decided not to utilize Dr. Ratner at trial. Overton felt her testimony would likely
be inadmissible. Furthermore, he feared her testimony might be damaging because
she concluded the petitioner could not be excluded as a possible child sex abuser.
Overton testified that he made efforts to contact other possible suspects but was
unsuccessful. Nevertheless, he argued to the jury that other family members could
have been responsible for the alleged crimes.
Although Overton had the petitioner evaluated by Dr. Ratner, he did not ask for
funding for any other experts to evaluate one of the victims. Overton believed that
testimony on child sex abuse syndrome would have been inadmissible. Furthermore,
the alleged abuse had taken place years earlier. The victim had intercourse since that
time; therefore, an examination would not prove useful.
3 Overton testified that he spent over one hundred hours in preparation for the
petitioner’s trial. He investigated the facts himself and did not seek funding for an
investigator.
TRIAL COURT’S FINDINGS
The trial court found that Overton rendered competent representation. It found
that Overton was thoroughly prepared for trial and had conducted a proper
investigation. The trial court found that the decision not to utilize Dr. Ratner was a
proper tactical decision. It further found the failure to secure an expert to perform an
examination on one of the victims was reasonable due to the lapse of time since the
alleged abuse. The trial court further found the testimony of the nurse practitioner was
properly admitted. In conclusion, the trial court found the petitioner had failed to
establish ineffective assistance of counsel.
STANDARD OF REVIEW
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. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064; 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).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence demanded
of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The petitioner must
overcome the presumption that counsel’s conduct falls within the wide range of
4 acceptable professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.
Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v.
Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). Therefore, in order to prove a
deficiency, a petitioner must show that counsel’s acts or omissions were so serious as
to fall below an objective standard of reasonableness under prevailing professional
norms. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2065; Henley v. State,
960 S.W.2d at 579; Goad v. State, 938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment . . . requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S.
Ct. at 2065.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED OCTOBER 1998 SESSION December 10, 1998
Cecil W. Crowson RICKY EARL MELVIN, ) Appellate Court Clerk ) NO. 01C01-9707-CR-00264 Appellant, ) ) Davidson County v. ) ) Honorable Thomas H. Shriver, STATE OF TENNESSEE, ) Judge ) Appellee. ) (Post-Conviction)
For The Appellant: For The Appellee:
Marian C. Fordyce John Knox Walkup (at trial) Attorney General and Reporter 129 Second Ave., North Nashville, TN 37201-1901 Daryl J. Brand Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Judson W. Phillips Nashville, TN 37243-0493 (on appeal) 315 Deaderick St., Ste. 2395 Victor S. Johnson III Nashville, TN 37238 District Attorney General
Kymberly Haas Assistant District Attorney General Washington Sq., Ste. 500 222-2nd Ave., North Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Ricky Earl Melvin, appeals the dismissal of his petition for post-
conviction relief by the Davidson County Criminal Court. Having been convicted of
seven counts of aggravated rape and serving an effective sentence of sixty-five years in
the Department of Correction, the petitioner contends he received ineffective assistance
of counsel. After a careful review of the record, we affirm the judgment of the trial court.
PROCEDURAL HISTORY
After his first trial ended with a hung jury, the petitioner was convicted at his
second trial on seven counts of aggravated rape. The convictions were based upon
numerous incidents involving two females under thirteen years of age. He received an
effective sentence of eighty-five years. Upon appeal to this court, the sentence was
reduced to an effective term of sixty-five years. See State v. Melvin, 913 S.W.2d 195
(Tenn. Crim. App. 1995). Permission to appeal was denied by the Tennessee Supreme
Court.
The petitioner timely filed a petition for post-conviction relief alleging ineffective
assistance of counsel. After an evidentiary hearing, the trial court dismissed the
petition.
CONTENTIONS OF PETITIONER
The sole issue in this appeal is whether the petitioner was deprived of effective
assistance of counsel at his trial. The petitioner contends trial counsel was ineffective
in the following respects:
1. failing to challenge the testimony of the nurse practitioner;
2. failing to utilize the testimony of Dr. Irene Ratner;
3. failing to interview other possible suspects;
2 4. failing to have a victim examined by an expert;
5. failure to seek funding for an investigator; and
6. failing to conduct an adequate investigation of the facts and witnesses.
POST-CONVICTION HEARING
The only witness to testify at the post-conviction hearing was the petitioner’s trial
counsel, Thomas T. Overton. A summary of pertinent portions of his testimony follows.
At the trial a nurse practitioner testified as to a victim’s physical findings that
were consistent with sexual abuse. Overton interviewed the witness prior to trial.
Although he did not recall whether he filed a motion in limine to prohibit the testimony,
there was no legal basis to do so.
The petitioner’s family retained the services of Dr. Irene Ratner for an evaluation.
Overton decided not to utilize Dr. Ratner at trial. Overton felt her testimony would likely
be inadmissible. Furthermore, he feared her testimony might be damaging because
she concluded the petitioner could not be excluded as a possible child sex abuser.
Overton testified that he made efforts to contact other possible suspects but was
unsuccessful. Nevertheless, he argued to the jury that other family members could
have been responsible for the alleged crimes.
Although Overton had the petitioner evaluated by Dr. Ratner, he did not ask for
funding for any other experts to evaluate one of the victims. Overton believed that
testimony on child sex abuse syndrome would have been inadmissible. Furthermore,
the alleged abuse had taken place years earlier. The victim had intercourse since that
time; therefore, an examination would not prove useful.
3 Overton testified that he spent over one hundred hours in preparation for the
petitioner’s trial. He investigated the facts himself and did not seek funding for an
investigator.
TRIAL COURT’S FINDINGS
The trial court found that Overton rendered competent representation. It found
that Overton was thoroughly prepared for trial and had conducted a proper
investigation. The trial court found that the decision not to utilize Dr. Ratner was a
proper tactical decision. It further found the failure to secure an expert to perform an
examination on one of the victims was reasonable due to the lapse of time since the
alleged abuse. The trial court further found the testimony of the nurse practitioner was
properly admitted. In conclusion, the trial court found the petitioner had failed to
establish ineffective assistance of counsel.
STANDARD OF REVIEW
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. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064; 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).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence demanded
of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The petitioner must
overcome the presumption that counsel’s conduct falls within the wide range of
4 acceptable professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.
Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v.
Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). Therefore, in order to prove a
deficiency, a petitioner must show that counsel’s acts or omissions were so serious as
to fall below an objective standard of reasonableness under prevailing professional
norms. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2065; Henley v. State,
960 S.W.2d at 579; Goad v. State, 938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment . . . requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S.
Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. Goad v. State, 938 S.W.2d at 369; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958 S.W.2d at 149; Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
The trial judge's findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d at
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. 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). The burden of establishing that the evidence preponderates
otherwise is on the petitioner. Henley v. State, 960 S.W.2d at 579.
5 ANALYSIS
As to the testimony of the nurse practitioner, the petitioner has not shown that
the testimony was inadmissible. This court reached the same conclusion on direct
appeal. State v. Melvin, 913 S.W.2d at 200. Accordingly, the petitioner has failed to
establish prejudice.
The failure to utilize the testimony of Dr. Ratner was a tactical decision. We may
not second-guess this decision.
As to the alleged failure to develop other possible suspects, the petitioner has
not shown any deficiency on the part of counsel. Furthermore, he has not established
what else trial counsel could have done nor what he would have discovered.
As to the failure to have one of the victims examined by an expert, the petitioner
has failed to establish that an examination would have revealed any favorable
evidence. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In short,
the petitioner has failed to establish prejudice.
As to the alleged failure to secure the services of an investigator and properly
investigate the facts, the petitioner again falls short. The petitioner has failed to
establish that a further investigation would reveal favorable evidence. There is no
showing of prejudice.
6 The trial court’s findings of fact are conclusive unless the evidence
preponderates otherwise. The evidence does not preponderate against the findings of
the trial court. W e, therefore, conclude petitioner has failed to establish ineffective
assistance of counsel.
Based upon the foregoing, we affirm the judgment of the trial court.
______________________________ Joseph M. Tipton, Judge
CONCUR:
______________________________ Paul G. Summers, Judge
______________________________ Joe G. Riley, Judge