Tidwell v. State

• Decision Date: 13 May 1996
• Citation: 922 S.W.2d 497
• Parties: Jesse S. TIDWELL, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Supreme Court

Page 497

922 S.W.2d 497

Jesse S. TIDWELL, Appellant, v. STATE of Tennessee, Appellee.

Supreme Court of Tennessee.

May 13, 1996.

Rehearing Denied July 8, 1996.

Jesse Spence Tidwell, pro se.

Charles W. Burson, Attorney General & Reporter, Michael E. Moore, Solicitor General, Gordon W. Smith, Associate Solicitor General, Nashville, Dan W. Cook, Assistant District Attorney General, Charlotte, for Appellee.

BIRCH, Justice.

The appellant, Jesse S. Tidwell, appeals the trial court's denial of his petition for post-conviction relief. At issue is whether his trial counsel's failure to require the prosecutor to elect the particular offenses upon which convictions would be sought deprived him of his constitutional right to the effective assistance of counsel. ¹ We have carefully examined the trial and post-conviction transcripts and have thoroughly considered the contentions of both parties. For the reasons discussed below, we find that counsel's performance failed to satisfy the criteria established in Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975) and in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant has made the requisite showing of prejudice for all but the incidents on which the testimony at the original trial was detailed and specific.

On October 7, 1987, a jury convicted Tidwell of forty-two offenses: ² fourteen counts each of rape, ³ incest, ⁴ and contributing to the delinquency of a minor. ⁵ The appellant is currently incarcerated under a sentence which was reduced by the Court of Criminal Appeals on direct appeal to an effective sentence of seventy-five years in the Department of Correction.

In light of our resolution of this cause, we will recount only those facts necessary for understanding the issue and its analysis. The record shows that sexual activity between the appellant and his daughter, born April 1, 1972, began in Dickson County in December 1985. This activity, which included cunnilingus, fellatio, and vaginal intercourse, continued for fourteen months--ending January 1987.

The victim testified that this sexual activity with her father occurred approximately once a week. She was unable, in the main, to ascribe a particular act to a specific time, whether by date or other reference. There were, however, two discrete incidents that the victim identified with particularity. She specifically recalled having engaged in vaginal intercourse with the appellant in late December 1985 shortly after the family had moved to Dickson County. She remembered that this incident occurred while she was out of school on Christmas break. She recalled also having engaged in vaginal intercourse with the appellant in April 1986. She testified that this incident occurred one evening after the appellant had taken the victim's mother to the house of the victim's grandfather. She recalled that the appellant had drunk vodka and had shown pornographic films to her on that occasion.

In a confession introduced into evidence at trial, the appellant admitted having engaged in sexual intercourse with the victim, and he told investigators that the last such incident occurred in January 1987, three days before his arrest on these charges. The appellant offered no proof.

As stated, the issue before us concerns the effective assistance of counsel. The appellant contends that his trial counsel failed to request the trial court to order the prosecutor to elect the offenses upon which he would rely for convictions. That failure, the appellant insists, deprived him of the effective assistance of counsel as guaranteed by our state and federal constitutions.

At the hearing on the post-conviction petition, appellant's trial counsel was questioned about his reason for not requesting the State to elect offenses. He gave the following response:

The two indictments and all the multi-counts against him were not date-specific nor were they place-specific. They alleged blank day of a certain month and in Dickson County. Upon cross-examination of his daughter, of the young girl, I asked for specifics in each particular month. My recollection is she could only give specifics on one particular month, at which time I thought it would be best, at that time, to leave it as such rather than even attempt to ask for an election. In hindsight that was probably wrong.

At the conclusion of the proof, the post-conviction court denied relief without filing written findings of fact and conclusions of law; the court did, however, comment on the record. One such comment is reproduced below:

Now then, ... I see a witness on the witness stand, Mr. Tidwell, who I have observed and listened to very carefully. As they say, I have observed his manner and demeanor on the witness stand. I specifically find, and I so state for the appellate record that I do not believe Mr. Tidwell is a credible witness. I don't believe him.

Initially, our standard of review is dictated by several well-established legal principles. In Tennessee, effective assistance of counsel is determined by the criteria established in Baxter v. Rose. This Court's holding in Baxter requires that the advice given, or the services rendered by the attorney, be within the range of competence demanded of attorneys in criminal cases. 523 S.W.2d at 936. The federal rule, enunciated by the United States Supreme Court in Strickland v. Washington, provides as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or [ ] sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. at 2064.

Additionally, in post-conviction proceedings, the defendant has the burden of proving the claims raised in the petition by a preponderance of the evidence. Wade v. State, 914 S.W.2d 97, 101 (Tenn.Crim.App.1995); Bratton v. State, 477 S.W.2d 754 (Tenn.Crim.App.1971). Findings of fact made by the trial court are conclusive on appeal unless the evidence preponderates against the judgment. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn.1990). Accordingly, we are bound to affirm the judgment unless the evidence in the record preponderates against the trial court's findings. See Black v. State, 794 S.W.2d 752, 755 (Tenn.Crim.App.1990).

As we stated earlier, the allegations of ineffective assistance of counsel are based upon counsel's failure to seek from the trial court an order requiring the prosecutor to elect the sexual acts upon which the State would rely for convictions. The appellant argues that there was no assurance of jury unanimity in the sense that each juror agreed upon a single, discrete, identifiable act to correspond to each count beyond a reasonable doubt because the victim testified to numerous sexual encounters, absent an election.

In Burlison v. State, 501 S.W.2d 801, 804 (Tenn.1973), we held that it is "the duty of the trial judge to require the State, at the close of its proof-in-chief, to elect the particular offense of carnal knowledge upon which it would rely for conviction, and to properly instruct the jury so that the verdict of every juror would be united on the one offense." Burlison enumerated three fundamental reasons for requiring election in cases in which there is evidence of numerous instances of unlawful sexual conduct: (1) to enable the defendant to prepare for and defend against the specific charge[s]; (2) to protect the defendant from double-jeopardy by individualization of the issue; and (3) to ensure unanimity of verdict so that the jury's verdict may not be a matter of choice between offenses--some jurors convicting of one offense and others of another offense--all within the same count. 501 S.W.2d at 803.

In our view, the first reason, to enable the defendant to prepare for and defend against the specific charge[s], could have been resolved with a request for a bill of particulars. Tenn.R.Crim.P. 7(c). Here, however, the post-conviction court was satisfied that trial counsel had obtained sufficient discovery, albeit by other means.

The second reason, to protect the defendant from double-jeopardy by individualization of the issue, has no application here because the appellant is already protected. See State v. Hardin, 691 S.W.2d 578, 580-81 (Tenn.Crim.App.1985) ("[T]he indictments and proof are sufficient to protect [the defendant] from further prosecution for acts of this nature committed against this victim within the times alleged in the indictments.").

The third reason is the one that troubles us in this case. The indictments as returned contain fifty-six counts--fourteen each of aggravated rape, statutory rape, incest, and contributing to the delinquency of a minor. ⁶ Each count charges the commission of a specific offense on the "___" day of a named month. Thus, it is quite evident that there is no apparent means to differentiate among various counts of the same offense. Additionally, the indictments provide no means to enable a fact-finder to match a specific conduct to a specific count.

We have recognized the third Burlison reason as the most significant of the three because its purpose is to ensure a unanimous verdict. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.1993). The indictment in this case, drafted as we have described, puts unanimity at serious risk. In Shelton, we stated:

[I]n Jamison v. State, 117 Tenn. 58, 94 S.W. 675 (1906) the Court carefully acknowledged that "each unlawful act of carnal knowledge is a separate, substantive...