McKaughan v. State, W2018-01035-CCA-R3-PC

COY MCKAUGHAN v. STATE OF TENNESSEE

No. W2018-01035-CCA-R3-PC

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

October 2, 2019 Session

January 13, 2021

Appeal from the Criminal Court for Shelby County

No. 10-00690

James M. Lammey, Judge

The Petitioner, Coy McKaughan, filed a post-conviction petition in the Shelby County Criminal Court seeking relief from his conviction of aggravated sexual battery and accompanying twelve-year sentence in the Tennessee Department of Correction. The post-conviction court denied the petition, and the Petitioner appeals. On appeal, the Petitioner contends that (1) his trial counsel was ineffective, (2) his appellate counsel was ineffective, (3) his due process rights were violated by the State's withholding evidence in violation of Brady v. Maryland, (4) his due process rights were violated by the State's assembling a "rigged grand jury foreperson," (5) the State violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Tennessee Constitution, and (6) he was denied his constitutional right to a "full and fair" post-conviction hearing. Upon review, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER, J., joined. THOMAS T. WOODALL, J., not participating.

Joseph A. Crone, Memphis, Tennessee, for the Appellant, Coy McKaughan.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

The Petitioner was charged with the aggravated sexual battery of his six-year-old stepdaughter. Specifically, the indictment alleged that on September 3, 2009, the Petitioner unlawfully and intentionally engaged in sexual contact with the victim, who was less than thirteen years of age, in violation of Tennessee Code Annotated section 39-13-504.

At trial, C.M., the victim's mother, testified that the victim was born on November 15, 2002. When the victim was four years old, C.M. and the Petitioner married, and they later had a daughter.

On September 3, 2009, the victim's friend came to their home for a visit. The girls rode bicycles together, and the victim had a bicycle accident that caused injuries to her right side, head, and knee. That night, C.M. drove the victim's friend home. When C.M. returned, the victim and her sister were in bed. C.M. went into her daughters' room and saw the girls lying on a daybed, with one girl on each end of the bed. Both girls fit on the bed because they were "very small." The Petitioner was lying on his side behind the victim, and a blanket was draped across them. C.M. saw the Petitioner's hand moving underneath the blanket, as if he were rubbing the victim between her legs. C.M. asked the Petitioner what he was doing, and the Petitioner "looked at [her] like a deer in headlights." The victim looked terrified. C.M. took both of the children to her bedroom and shortly thereafter, she took the girls to the front yard and called 911. While they were outside, a neighbor drove into his driveway. C.M. said that she did not know what the Petitioner would do if he came out of the house, so she asked the neighbor if he and his wife would watch the children.

C.M. said that when the police arrived, they questioned her and the victim separately. Around 6:30 a.m. the following morning, the victim was examined at the Child Advocacy Center.

C.M. identified the victim's blanket, nightgown, and underwear that were taken by the police. She acknowledged that some "drawings" on the blanket were not present before it was taken by the police.

On cross-examination, C.M. acknowledged that she and the Petitioner had "[s]erious discussions" about the Petitioner adopting the victim. C.M. said that the adoption was the Petitioner's idea, that he wanted the victim to call him "daddy," and that he was the only father the victim had ever known. The Petitioner had not "follow[ed] through" with the adoption.

The victim testified that a few months prior to her seventh birthday, she was living in a house with her mother, her sister, and the Petitioner. She said that the Petitioner gave her a "bad touch," and she pointed toward her vagina. She said that the touching happened in "a bunch of rooms" at their home and that it happened "more than once." The Petitionertold her not to tell anyone. The victim said that her mother walked into the victim's bedroom during one incident. The victim explained that she was lying on her bed and that the Petitioner came into her room and stood beside the bed. The victim said that she was underneath her princess blanket and that the Petitioner "rubbed [her] in a circular pattern" on top of her underwear. C.M. made the victim go to the neighbor's house across the street.

The victim explained that when she said "this happened a lot of times," she meant "[k]issing." She recalled that a few days before the incident, the Petitioner gave her a "grownup kiss" that was "not a good touch." The victim said that she did not want the Petitioner to kiss her like that or to touch her vagina, but she was afraid to tell him to stop. The victim said that she had told C.M. about the Petitioner's kissing her before C.M. caught the Petitioner touching her. C.M. had told the victim that the Petitioner "would never do that to [her]."

Millington Police Officer Trudie Carter testified that she spoke with the victim at a neighbor's house on the night of the complaint. The victim told Officer Carter

that she was lying in her bed, and her dad got into her bed with her and got underneath her covers with her; and he started kissing her like he would kiss her mother. . . . And she said, "Well, then he started to touch me," and she lifted up her nightgown and showed me her vaginal area. . . . And she said that he was using his two fingers - she demonstrated he used two fingers - his index finger and his middle finger and moving them around in a circular motion. . . . And she said that he also pulled the skin apart down there. And I asked her if he had done this over her underwear or under; and she said it was over.

Dr. Karen Lakin testified that on September 4, 2009, she examined the victim at the Memphis Child Advocacy Center. During her examination and interview of the victim, Dr. Lakin learned that the victim had been in a bicycle accident. Dr. Lakin saw a healing abrasion on the victim's forehead and her right knee. Dr. Lakin said that the victim

disclosed in the interview that her step-father was touching her private area ["]on the front["]; and motioned with her index finger a circular pattern.

She also disclosed that he kissed her ["]like he kisses mama["].

She disclosed that he told her it was ["]their secret["]; but she told him it was ["]his and mama's secret["].

The patient did state that [the touching] had happened before.

Dr. Lakin said the victim was frightened and "tearful" during the interview. During her examination of the victim, Dr. Lakin noticed irritation and redness on the left side of the victim's genital area. Dr. Lakin explained that the asymmetrical redness was not "something typical that you would see just for no reason at all" and that "it may be from some type of sexual assault, but there are other reasons that you may see it as well." The victim also had an area of abrasion just below the bottom of the hymen. Dr. Lakin took photographs of the injuries, and the photographs were shown to the jury to explain the victim's injuries. The victim weighed thirty-two pounds and was one hundred and eight centimeters tall at the time of the examination.

Claire Prince testified that she was a social worker with the Child Advocacy Center. On September 4, 2009, she interviewed the victim. The victim told Prince that the Petitioner had touched the victim with one finger on the outside of her underwear. The victim said that the incident C.M. saw was the first time the Petitioner had touched her in that manner. The victim mentioned that the Petitioner had stuck his tongue in her mouth.

The parties stipulated that on September 3, 2009, the Millington Police Department collected the victim's pink blanket, her nightgown, and her underwear. The three items were submitted to the Tennessee Bureau of Investigation's (TBI) crime laboratory to be tested for semen or other bodily fluids, but none were found.

Morgan Jones testified for the Petitioner. Jones said that the Petitioner told him on two occasions that he was thinking about divorcing C.M. and resuming a relationship with his ex-wife. Jones said that on the night of September 3, 2009, he was at the Petitioner's house. The Petitioner had been drinking heavily and was "almost passed out" when Jones left.

Bubba Williams testified that for six months prior to the offense, he noticed that the Petitioner and C.M. were having marital problems. The Petitioner told Williams that he was consulting an attorney for advice about whether he should adopt the victim.

Todd Parsons said the Petitioner told him that he was considering leaving C.M. and resuming a relationship with his ex-wife. Parsons was at the Petitioner's residence on the night of September 3, 2009. When Parsons left, the Petitioner was "inebriated."

The Petitioner testified that after he and C.M. married, they began having problems. She became distant, they stopped sleeping in the same bed, and they took turns sleeping on the couch.

The Petitioner said that on the night of the offense, he drank six "big old mugs" of beer. After the guests left and the children had gone to bed, the Petitioner went to the living room, sat on the couch, and turned on the television. The children got out of bed and told him they were hungry or thirsty. The Petitioner went to the...