Overton v. State
| Decision Date | 28 March 1994 |
| Citation | 874 S.W.2d 6 |
| Court | Tennessee Supreme Court |
| Parties | John OVERTON, Appellant, v. STATE of Tennessee, Appellee. |
Charles S. Bloodworth, Asst. Public Defender, Clarksville, for appellant-applicant.
Charles W. Burson, Atty. Gen. and Reporter, Merrilyn Feirman, Asst. Atty. Gen., Nashville, for appellee-respondent.
John Overton appeals from the Court of Criminal Appeals' affirmance of the trial court's partial denial of his petition for post-conviction relief. Overton filed this petition, alleging that he had been denied the effective assistance of counsel guaranteed by the Sixth Amendment of the federal constitution, following his conviction on fifteen counts of sex offenses involving minors. 1 This case presents for our review three issues, two of which concern the appropriate statute of limitations for the prosecution of child sexual abuse cases, and one which concerns counsel's duty to object to erroneous jury instructions. The first statute of limitations issue is broad and may be stated as follows: whether the amendment extending the statutory period of limitations in child sexual abuse cases--Tenn.Code Ann. § 40-2-101(d), which took effect July 1, 1985--may be applied to offenses occurring before the effective date of the amendment whose statutory period of limitations had not expired as of that date. The other statute of limitations issue deals with the particular circumstances of this case, specifically Count 9, as discussed below. The jury instructions issue is also narrow, and it specifically concerns count 6, as discussed below.
John Overton was indicted on December 8, 1987, on fifteen counts of aggravated rape, rape, aggravated sexual battery, and sexual battery because of his alleged attacks on his two stepdaughters. The counts pertinent to this appeal, the statutory period of limitations applicable to those counts at the time the offenses were committed, and the date on which the period of limitations would have expired from a straightforward reading of the statutes, are as follows:
Count 1: Charged aggravated sexual battery [at that time, Tenn.Code Ann. § 39-2-606] of stepdaughter "L" between August 1980 and June 1981. Because that offense was punishable by incarceration for a period of 5-35 years, the statute of limitations was four years. The period of limitation expired, by its terms, in June 1985.
Count 4: Charged aggravated sexual battery of stepdaughter "T" between August 1978 and May 1979. The statute of limitation for this offense was four years. The period of limitation expired, by its terms, in May 1983.
Count 5: Charged aggravated sexual battery of stepdaughter "T" between August 1978 and May 1979. The statute of limitations for this offense was four years. The period expired, by its terms, in May 1983.
Count 6: Charged aggravated rape [at that time, Tenn.Code Ann. 39-2-603(a)(4) ] of "T" between August 1978 and May 1979. Because that offense was punishable by incarceration for life at that time, the statute of limitations was unlimited. Tenn.Code Ann. § 40-201 (1975 replacement); Tenn.Code Ann. § 40-2-101(a) (1982 replacement).
Count 7: Charged sexual battery [at that time, Tenn.Code Ann. § 39-2-607, 39-2-604(a) ] of "T" between August 1983 and June 1984. Because that offense was punishable by incarceration for a period of less than five years, the statute of limitations for this offense was two years. The period of limitations expired, by its terms, in June 1986.
Count 8: Charged sexual battery of "T" between August 1983 and June 1984. The statute of limitations for this offense was two years. The period of limitation expired, by its terms, in June 1986.
Count 9: Charged rape of "T" between August 1983 and June 1984. Because that offense was punishable by incarceration for 5-20 years, the statute of limitations was four years. The period of limitation expired, by its terms, in June 1988.
After being convicted on all counts, Overton filed his petition, alleging that counsel was constitutionally ineffective for two principal reasons: (1) for failing to raise the defense of the statute of limitations with respect to the above-mentioned counts; and (2) for failing to object to an erroneous jury instruction regarding aggravated rape--count 6. After hearing oral argument on the petition, the post-conviction court held that Overton's trial counsel had rendered ineffective assistance of counsel by failing to raise statute of limitations defenses with respect to counts 1, 4, 5, 7 and 8. The post-conviction court dismissed the convictions on these counts; however, it refused to grant the requested relief as to counts 6 and 9. The court held that because count 6--aggravated rape--carried a possible punishment of incarceration for life, and hence afforded the State unlimited time in which to bring an indictment, counsel was not deficient in failing to raise a statute of limitations defense. As to count 9, the post-conviction court noted that the four year statutory period of limitations would have expired if the offense had occurred between August 1983 and December 7, 1983. The court held, however, that because only 3 years and 7 months elapsed from the last possible date the offense could have occurred (June 1984) to the return of the indictment (December 8, 1987), the count was not facially vulnerable to a statute of limitations defense, and counsel was therefore not constitutionally ineffective for failing to raise the defense. The post-conviction court also rejected Overton's second argument: that counsel's failure to object to the trial court's omission of the elements of "force" and "resistance" from its instructions on the law of aggravated rape, when these elements were required by the law at the time the offense was committed, and when no proof of force was submitted by the State, deprived him of the effective assistance of counsel. The court stated that the instructions, when considered in their entirety, were adequate. Overton appealed to the Court of Criminal Appeals.
In affirming the judgment of the post-conviction court, the Court of Criminal Appeals first noted the standard for testing the constitutional effectiveness of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): that the defendant must show (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. In regard to count 9, the Court stated that even if counsel had been negligent in failing to raise the statute of limitations defense, Overton had failed to show that the offense occurred on or before December 7, 1983, or four years before the indictment was returned, and had therefore failed to prove that he was prejudiced by the error. As to the jury instruction issue on count 6, the Court held that the issue had been waived. Overton filed a Rule 11 application with this Court, which was granted.
Before we address the specific issues in regard to counts 6 and 9, we believe it necessary to address the broad question of the retroactivity of the 1985 amendment to the statute of limitations in child sexual abuse cases. This issue, which is of paramount importance to both prosecutors and the defense attorneys involved in these types of cases, has never been the subject of a direct holding by this Court. 2 We note that if the amendment can be applied retroactively, counts 7, 8 and 9 would be revived, and Overton's argument with regard to count 9 would be rendered moot.
In 1985 the Legislature chose to extend the statutory period for prosecuting child sexual abuse cases until either (1) the minor reached the age of majority or (2) until four years had passed from the time the offense was committed, whichever was later. 1985 Tenn.Pub.Acts 1094, now codified as Tenn.Code Ann. § 40-2-101(d). The statute, by its terms, did not indicate if the extended period of limitation was to be applied to offenses occurring before the effective date of the statute--July 1, 1985--whose applicable period of limitations had not expired as of the effective date. Several appellate decisions since the passage of the amendment have, however, spoken to the issue of the retroactivity of the amendment. The first of the decisions, State v. Tidwell, 775 S.W.2d 379 (Tenn.Cr.App.1989), involved the prosecution of the defendant on 45 counts of unlawful sexual contact with minors which had allegedly occurred from 1981 to 1986. Although the primary issue in the case was whether the defendant had concealed the facts of the crime so as to toll the statute of limitations, see Tenn.Code Ann. § 40-2-103, the Court of Criminal Appeals did address the applicability of the 1985 amendment to the case. The Court stated:
This statute [§ 40-2-101] would only be applicable to the offenses charged in Count 24, statutory rape, which is alleged to have occurred on August 15, 1986, and Count 41, crime against nature, which is alleged to have occurred in July of 1985. The offenses charged in the remaining counts of the presentment occurred before the enactment of the statute; and the date for the prosecution of these offenses would not be affected.
The next decision dealing with this issue, State v. Henry, 834 S.W.2d 273 (Tenn.1992), contained similar language regarding the retroactivity of the amendment. In Henry the defendant was indicted in February 1987 for, inter alia, committing incest with his granddaughter between April 1, 1981, and June 30, 1981; a second indictment charged that the defendant had committed incest with the granddaughter between July 1, 1981, and September 30, 1981. Because at that time incest was punishable by a term of imprisonment not to exceed 21 years, the statutory period of limitations for the...
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