Joshua Paul Lewis v. State of Tennessee, E2016-01993-CCA-R3-PC

Background

Joshua Paul Lewis was convicted by a Cumberland County jury of two counts of rape of a child and one count of attempted rape of a child; effective sentence 25 years; convictions affirmed on direct appeal.
At issue was a December 9, 2009 custodial interrogation in which Lewis signed a waiver and a written confession; Lewis claimed he had been maced earlier, was under the influence, and requested counsel during interrogation.
The trial court denied Lewis’s suppression motion; the confession and waiver were admitted and read to the jury; the victim (then nine) testified describing multiple sexual acts.
Lewis filed a pro se post-conviction petition alleging ineffective assistance of counsel based on counsel’s alleged failures: not introducing evidence of Lewis’s prior request for counsel, not investigating or calling witnesses to alleged police abuse, not introducing the victim’s forensic-interview video, and not calling the forensic medical examiner.
At the post-conviction hearing counsel testified about strategic reasons for his choices (e.g., not introducing forensic interview/video because it contained multiple detailed allegations and would be “damning,” and a medical examiner would not contradict oral-sex allegations); the post-conviction court found counsel credible, rejected Lewis’s testimony, and denied relief.

Issues

Issue	Lewis’s Argument	State/Counsel’s Argument	Held
Failure to introduce evidence Lewis requested counsel during interrogation	Lewis says he asked for an attorney and was denied; counsel should have presented this at suppression/trial	Counsel and record: Lewis did not timely raise this at suppression; counsel unaware of unambiguous request; no proof presented at post-conviction	Denied — post-conviction court credited counsel; no clear-and-convincing proof of deficiency or prejudice
Failure to introduce evidence of physical abuse (macing/assault) during arrest/interrogation	Lewis says he was beaten and maced and counsel should have proved/introduced it at suppression/trial	Counsel: Lewis told him of being maced but not that abuse occurred during the interview; counsel would have raised it if substantiated; Lewis failed to produce witnesses	Denied — court credited counsel; Lewis failed to produce corroborating witnesses; no prejudice shown
Failure to locate/call witness to the alleged abuse	Lewis: witness could corroborate post-arrest abuse; counsel failed to follow up	Counsel: unaware the witness actually observed abuse; Lewis failed to present that witness at post-conviction	Denied — petitioner must present missing witnesses at post-conviction to show prejudice; he did not
Failure to introduce the victim’s forensic-interview video	Lewis: counsel erred by withholding potentially exculpatory/inconsistent interview evidence	Counsel: strategic decision—video was detailed and inculpatory (multiple incidents, other victims); introducing it would harm defense and open door to damaging testimony	Denied — trial strategy was reasonable; court will not second-guess informed tactical choices
Failure to call forensic medical examiner	Lewis: examiner’s testimony or medical findings might undermine prosecution	Counsel: medical exam would not rebut oral-sex allegations and might repeat damaging victim statements; expert would not help on attempted-penetration claim	Denied — counsel’s tactical rationale accepted; no prejudice shown

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
Melson v. State, 772 S.W.2d 417 (Tenn. 1989) (application of ineffective-assistance standards in Tennessee)
Fields v. State, 40 S.W.3d 450 (Tenn. 2001) (post-conviction findings of fact are conclusive unless evidence preponderates)
Momon v. State, 18 S.W.3d 152 (Tenn. 1999) (credibility and weight of testimony are for trial court)
Henley v. State, 960 S.W.2d 572 (Tenn. 1997) (standards for reviewing factual findings in post-conviction proceedings)
Burns v. State, 6 S.W.3d 453 (Tenn. 1999) (effective assistance of counsel principles)
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) (competence standard for criminal counsel)
House v. State, 44 S.W.3d 508 (Tenn. 2001) (reasonableness and deference to counsel’s tactical choices)
Goad v. State, 938 S.W.2d 363 (Tenn. 1996) (review of counsel performance)
Nichols v. State, 90 S.W.3d 576 (Tenn. 2002) (prejudice standard under Strickland)
Burger v. Kemp, 483 U.S. 776 (counsel need not provide perfect representation)
Cronic, 466 U.S. 648 (context for evaluating counsel’s performance when representation fails)
Denton v. State, 945 S.W.2d 793 (Tenn. Crim. App. 1996) (defendant not entitled to perfect representation)
Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App. 1980) (failed strategy alone does not establish ineffective assistance)