Frederick Greene v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 7, 2015 Session
FREDERICK GREENE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 0905927 James C. Beasley, Jr., Judge
No. W2014-01216-CCA-R3-PC - Filed November 19, 2015
_____________________________
The petitioner, Frederick Greene, was convicted of first degree (premeditated) murder
and received a sentence of life imprisonment. The petitioner appeals the denial of his
petition for post-conviction relief. On appeal, he contends that he received ineffective
assistance of counsel. Following our 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
JOHN EVERETT WILLIAMS, delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROGER A. PAGE, J., joined.
Lance R. Chism, Memphis, Tennessee, for the Appellant, Frederick Greene.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy. P. Weirich, District Attorney General; and Stacy McEndree,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
On direct appeal, this court recited the facts from the petitioner‟s trial as follows:
Tikieta Williams testified that on February 11, 2009, she lived in a
house at 766 Rosemont in Memphis with her children and grandchildren.
She had previously been in a romantic relationship with [the petitioner],
and [the petitioner] moved into the house with Tikieta1 when she bought it
in the summer of 2007 after the pair lived for a few weeks with Marcus and
Lakeydra Brown, [the petitioner‟s] brother-in-law and sister, at a nearby
house on Rosemont. [The petitioner] lived at Tikieta‟s house for
approximately one year, in which time he would be there “on and off,”
staying for a few days at a time. By the summer of 2008, Tikieta and [the
petitioner] had ended their relationship, and [the petitioner] was no longer
welcome to stay at the house.
Tikieta testified that [the petitioner] came to her house unexpectedly
on the morning of February 11, 2009. He was not working and was
“moving around from place to place.” He asked to leave some of his clothes
at Tikieta‟s house, which Tikieta allowed, but she told him that he could
not stay there. One of Tikieta‟s friends later arrived at the house and gave
her and [the petitioner] a ride to a car dealership where Tikieta purchased a
car. Tikieta and [the petitioner] returned to her house, and she showed the
new car to her family. [The petitioner] played basketball by himself on the
patio at the rear of the house. The family eventually went inside the house
and sat in the living room together to socialize. From inside the house, a
large window looked out to the patio where [the petitioner] continued to
play basketball.
As was his daily custom, the victim arrived at the house around 8
p.m. to drop off his and Tikieta‟s fifteen-year-old son, Dierre Williams. The
victim parked his car in the driveway at the side of the house, and he
remained there while Dierre went in the back door of the house, which was
located close to the basketball goal where [the petitioner] was playing.
Once inside, Dierre asked if anyone could provide the victim with change
for a $100 bill. No one responded that they could, and Tikieta told Dierre to
ask the victim in. The victim came in through the back door, and Tikieta
informed him of a meeting they had to attend the next morning. After two
1
Because many of the witnesses share the same surname, we refer to them by their first names
for clarity. We mean no disrespect.
2
to three minutes, the victim exited the back door. Within one to two
minutes of the victim‟s exit, Bridgette Carmichael, one of Tikieta‟s
daughters, realized she had change and called the victim back in the house.
The victim returned inside the house, exchanged money with Ms.
Carmichael, and again went to the back door. As the victim began to step
out the door, [the petitioner] attacked the victim, grabbing the victim by
wrapping his arms around the victim‟s midsection and pushing him into the
house. When [the petitioner] did this, he said to the victim, “I told you not
to come back here.” As the two men were “tussling,” it appeared as though
[the petitioner] was punching the victim. [The petitioner] had pushed the
victim against a wall such that the victim was unable to fight back. In a
matter of seconds, everyone in the house ran to separate them. Once free of
[the petitioner], the victim picked up a small end table that was nearby as
though to throw it at [the petitioner]. Instead, the victim looked at the
children in the room and then set the table down. The victim walked out the
door and to his car, and several children followed him. [The petitioner]
remained inside. One of the children soon returned and said that [the
petitioner] had stabbed the victim. Tikieta went outside to the victim‟s car
and saw him face down in the passenger seat. He was breathing but
unresponsive, and Tikieta and others called 911 for help. [The petitioner]
left the house on foot when Tikieta went to the victim‟s car.
Tikieta testified that the victim did not have a weapon at the time of
the fight. [The petitioner], however, had a pocket knife that he would
always carry with him. She was not aware of any words being exchanged
between the victim and [the petitioner] while the victim was at the house,
and the victim did not say anything to [the petitioner] during the fight. The
victim also was not arguing with anyone else at the house.
Approximately one and a half years before this incident, [the
petitioner] and the victim had a verbal altercation. At a barbecue at
Tikieta‟s house, the two men “passed words” after the victim gave Tikieta
some money, but the altercation did not become physical. She did not see
or hear how the argument between the men started, but she recalled telling
the victim to leave the barbecue. Tikieta testified that they did not have any
further altercations before the day of the victim‟s death.
Tikieta reviewed a number of photographs, admitted as exhibits at
trial, that depicted the interior and exterior of her house and the relative
locations of the patio, the basketball goal, the back door, the area where the
fight occurred, and the victim‟s car.
3
On cross-examination, Tikieta acknowledged that she previously
testified that [the petitioner] had lived at her house as recently as two
months before the homicide. She maintained, however, that it had been
longer than two months. She conceded that she previously testified that the
altercation between the victim and [the petitioner] occurred seven months
before the homicide. Tikieta further acknowledged that she may have told
the police that the victim threw the table, but she maintained at trial that the
victim did not do so.
When [the petitioner] attacked the victim, Tikieta was sitting on a
couch and could see the back door. She was unsure how many times she
saw [the petitioner] punch the victim, and she did not realize that the victim
had been stabbed until after the fight. Tikieta identified a floor plan of the
house, which was admitted as an exhibit.
Bridgette Carmichael, Tikieta‟s daughter, testified that although she
was not biologically related to the victim, she knew him as a father. She,
along with her son and fiancé, lived at Tikieta‟s Rosemont residence for
approximately six to eight months until they moved out one month before
the homicide. [The petitioner] did not live at the residence during the time
Ms. Carmichael lived there, but he would sometimes visit. She testified that
she was not “comfortable” with [the petitioner] and that she would not have
lived there with him.
On February 11, 2009, Ms. Carmichael arrived at Tikieta‟s house
with her son and fiancé at approximately 3:30 p.m. No one else was at the
home until Tikieta arrived with [the petitioner] at approximately 5 p.m. She
was surprised to see [the petitioner] there, and she had not seen him since
she moved out of the house a month earlier. Ms. Carmichael‟s trial
testimony of the attack on the victim was consistent with that of Tikieta.
She further observed that [the petitioner] made a punching motion more
than once. As the family separated [the petitioner] and the victim, [the
petitioner] cut Dierre‟s hand. Ms. Carmichael did not see a knife, but she
testified that [the petitioner] “always had little pocket knives.” [The
petitioner] and the victim did not speak to each other before the fight.
On cross-examination, Ms. Carmichael testified that the previous
altercation between [the petitioner] and the victim occurred while [the
petitioner] lived at Tikieta‟s house, approximately six months before the
victim‟s death.
4
Mya Williams, one of Tikieta‟s daughters, testified that the victim
had been like a father to her all her life and that she would see him on a
daily basis. On the evening of the date in question, Mya was inside with her
family when the victim called Tikieta to tell her he would be there at
around 7:30 or 8 p.m. When the victim and Dierre arrived, Mya went
outside to the victim‟s car. [The petitioner] was outside playing basketball
at the time. Dierre went inside, and Mya stayed outside with the victim.
Dierre soon returned, and the victim and Dierre went inside the house. Mya
remained outside, and she did not hear the victim and [the petitioner] speak
to each other. She soon heard screaming, and she ran to the house, where
she saw everyone grabbing [the petitioner]. [The petitioner] had a
“medium-sized little pocket knife,” and “he was getting ready to fold it
back up and put it in his sleeve.” [The petitioner] said, “I told you I was
going to get that nigga.” The victim walked out the door, and Mya followed
him to his car. The victim got in his car and reached to start it, but his arm
fell back down to his side. Dierre and Mya asked the victim what was
wrong, and the victim said, “I‟m hit.” Mya opened the victim‟s shirt and
realized that he had been stabbed. Dierre moved the victim to the passenger
side of the car and tried to start the car to take the victim to the hospital.
Mya prevented Dierre from leaving and convinced him to wait for an
ambulance.
Mya testified that the victim was approximately two inches taller
than [the petitioner], and he outweighed [the petitioner] due to his “belly.”
[The petitioner] was younger than the victim.
On cross-examination, Mya testified that the victim still cared for
Tikieta. She had never seen [the petitioner] and the victim argue before.
Tommie Braddox testified that he lived at 760 Rosemont, next door
to Tikieta‟s house. He was at Tikieta‟s house visiting with the family at the
time of the victim‟s death. His account was substantially similar to that of
the previous trial witnesses. He testified that as the victim was leaving the
house after exchanging money with Ms. Carmichael, [the petitioner]
“ambushed” him. Mr. Braddox saw [the petitioner] punch the victim, and
he did not see anything in [the petitioner‟s] hand. [The petitioner] and the
victim had not been arguing before the fight began.
On cross-examination, Mr. Braddox testified that the victim only
came in the house one time. He testified that [the petitioner] had lived at
5
Tikieta‟s house but that he had not lived there recently before the date in
question. The previous argument between the victim and [the petitioner]
occurred in the summer of 2008.
Jarvis Williams testified that he lived at 760 Rosemont next door to
Tikieta‟s house. He was at Tikieta‟s house all afternoon and evening on the
date in question. He testified that [the petitioner] was inside the house until
Dierre arrived. At that time, [the petitioner] went to the back yard to play
basketball. In all other respects, Jarvis‟s direct testimony was consistent
with that of the other witnesses. He testified on cross-examination that [the
petitioner] lived at the house at the time of the victim‟s death and that he
had lived there since Tikieta moved there.
Officer Lee Potts of the Memphis Police Department testified that
when he arrived at the scene on the date in question, he saw a black male in
a car parked in the driveway. The man was face down in the passenger seat,
and he was unresponsive and not breathing. Officer Potts, who was
previously an emergency medical technician with the Memphis Fire
Department and a licensed nurse, determined that the victim was dead. He
called for an ambulance, directed his partner to secure the scene, and went
inside the house to learn what had happened.
Dr. Marco Ross of the Shelby County Medical Examiner‟s Office
testified that he performed an autopsy on the victim.2 He found three recent
wounds on the victim‟s body: an abrasion on the right side of the back, a
small scrape on the right side of the chin, and a stab wound on the abdomen
below and to the left of the belly button. The stab wound was three-fourths
of an inch long and four to five inches deep. The wound penetrated the
abdominal cavity, perforated the small intestine and the mesentery, and cut
the left common iliac artery. Dr. Ross found approximately two quarts of
blood in the abdomen as a result of the stab wound. He observed that both
ends of the wound on the skin had a “squared-off appearance,” and he
concluded that a knife blade had been inserted to the depth of the knife
handle. He explained, “Most knife blades, either single[-] or double-edged
blades, will usually terminate into, but the sharp part disappears and
becomes just a blunt part of blade just before it enters the handle area . . . .”
He estimated that the blade would have been three to six inches long. The
wound was consistent with one that a pocket knife might cause in a single
2
Because Dr. Ross was unavailable at trial, a video recording of his deposition testimony was
played for the jury.
6
thrust. It was inconsistent with multiple thrusts of a knife. A toxicology test
revealed that marijuana was present in the victim‟s body. Based on Dr.
Ross‟s observations, he determined that the victim‟s cause of death was a
stab wound to the abdomen and that the manner of death was homicide. A
copy of Dr. Ross‟s autopsy report and several photographs depicting the
victim‟s wounds were admitted as exhibits at trial.
On cross-examination, Dr. Ross testified that he observed no
evidence that the knife was twisted in the victim, and the stab wound
penetrated from front to back and slightly upward. According to Dr. Ross,
it would be uncommon for a single stab wound to the lower abdomen to
cause death. Although he was unable to draw any conclusions regarding the
cause of the other wounds, Dr. Ross opined that they were not defensive
wounds. The toxicology report indicated that the victim had likely ingested
marijuana within the last twenty-four hours, but Dr. Ross could not more
specifically limit the time frame of ingestion.
Lakeydra Brown, [the petitioner‟s] sister, testified for the defense
that in 2006, she lived at 773 Rosemont. [The petitioner] and Tikieta lived
there with Lakeydra and her husband, Marcus Brown, for approximately
one and a half months. [The petitioner] and Tikieta moved out when Tikieta
bought the house across the street. Lakeydra was aware that [the petitioner]
and the victim had an argument approximately three or four months before
September 2008, when the Browns moved from their house on Rosemont.
After the argument, [the petitioner] would avoid contact with the victim.
When the victim would go to Tikieta‟s house, [the petitioner] would go to
the Browns‟ house. On cross-examination, Lakeydra testified that the
victim continued to go to Tikieta‟s house after the argument with [the
petitioner] and that he was not prohibited from doing so.
Marcus Brown also testified for the defense, and he provided
substantially the same testimony as Lakeydra. He added that the reason [the
petitioner] would go to the Browns‟ house when the victim was at Tikieta‟s
house was to allow Dierre and the victim time together.
State v. Frederick Greene, No. W2011-01180-CCA-R3-CD, slip op. at 1-6 (Tenn. Crim.
App. June 27, 2012). The petitioner was convicted of first degree (premeditated) murder,
and he filed a timely petition for post-conviction relief.
At the post-conviction hearing, trial counsel testified that he had been practicing
law since 1998. He stated that he had tried seventy-five cases in his career, at least forty
7
of which were murder cases. Trial counsel testified that he did not believe that the jury
would find that the petitioner had acted in self-defense but that there was a possibility of
obtaining a conviction for manslaughter if the defense could establish the nature of the
prior relationship between the victim and Ms. Williams and the relationship between Ms.
Williams and the petitioner. Trial counsel explained that the problem with this theory
was that “the [S]tate‟s witnesses didn‟t cooperate with that line in many instances.” He
testified that the petitioner was aware of this trial strategy. Trial counsel agreed that he
was aware that the State‟s theory of the case was going to be that the petitioner “pretty
much ambushed” the victim as he was walking out of the door.
Trial counsel testified that he never told the petitioner “to testify or not to testify.”
He stated that the decision of whether to testify belonged to the petitioner. Trial counsel
explained that from the outset of his representation of the petitioner, the petitioner
informed his defense team “that he did not want to testify unless he absolutely had to --
unless everything went so bad . . . that [trial counsel] felt like [the petitioner] had to
testify.” Trial counsel stated that the petitioner did not “want to testify, period. That was
-- regardless of whether or not there were priors entered or not, he did not want to get on
the witness stand.” Trial counsel testified that the issue of whether the petitioner should
testify was raised “in a round-about way” in each of his meetings with the petitioner.
Trial counsel said that the primary goal of these meetings was to craft a strategy to place
the petitioner‟s versions of events in front of the jury, and one such strategy would have
been to call the petitioner as a witness. Trial counsel further stated that this method was a
“fall back” because the petitioner did not want to testify. Trial counsel recalled that the
petitioner‟s declaration that he did not want to testify “was early and consistent and never
waned.”
Trial counsel testified that he discussed the advantages and disadvantages of
testifying with the petitioner “dozens of times.” He informed the petitioner that an
argument in favor of testifying was that the petitioner‟s account of the events had
remained consistent. It was also an advantage that the petitioner had not confessed to a
crime in his statement to police. Trial counsel testified that there were several
disadvantages to testifying, including the minimal believability of the petitioner‟s
assertion that Ms. Williams and her son held the petitioner down so that the victim could
beat up the petitioner in the petitioner‟s own home. Trial counsel also testified that a
disadvantage was the fact that the petitioner‟s version “was completely inconsistent with
what everyone else testified to and [what] was in the discovery.” Trial counsel testified
that the petitioner‟s three prior convictions for violent felonies and their admission for
impeachment purposes would have been another disadvantage to the petitioner‟s
testifying. He stated that he made it clear to the petitioner that the decision to testify
belonged to the petitioner.
8
Trial counsel testified that at the conclusion of the defense‟s proof, he discussed
the advantages and disadvantages of testifying with the petitioner. He said that the
petitioner “made the ultimate decision” not to testify. Trial counsel testified that he could
not recall whether he specifically gave an opinion to the petitioner about whether he
should testify. He stated that if he did make a recommendation that the petitioner should
not testify, it would have come at the conclusion of the defense‟s proof, and “it would
have been a lean,” possibly “even a strong lean,” toward the petitioner‟s not testifying.
Trial counsel said that the basis of this recommendation would have been his belief that
the petitioner‟s prior convictions would have been admitted and his concern that the
petitioner “could open the door to the facts of the convictions[,] which were really bad.”
The petitioner had multiple prior convictions, which included two aggravated
assault convictions and an attempted second degree murder conviction. Trial counsel
testified that he discussed the petitioner‟s prior convictions with him. He informed the
petitioner that he was aware of the facts of the allegations and that it would be harmful to
the petitioner‟s case if these facts were revealed to the jury. Trial counsel told the
petitioner that he believed it was likely that his prior violent felony convictions would be
admissible for impeachment purposes. He also told the petitioner that the State could not
question him about the facts underlying the conviction unless the petitioner “opened the
door to it.” Trial counsel “explained, in extreme detail,” what “opening the door” meant.
Trial counsel testified that he made it “exhaustive[ly]” clear to the petitioner that the State
could not ask him about the underlying facts of his prior convictions if he testified. Trial
counsel testified that he did not believe that he would ever tell the petitioner that he
should not testify or attempt to force him not to testify.
Trial counsel testified that he did not discuss a self-defense instruction with the
petitioner, but he informed the petitioner that he was going to raise self-defense as a
theory. Trial counsel agreed that he did not tell the petitioner that he was not likely to
receive a self-defense instruction unless he testified or that the petitioner needed to testify
in order to receive a self-defense instruction. Trial counsel also testified that he did not
tell the petitioner that he would need to testify in order to be convicted of a lesser
included offense. Trial counsel testified that he informed the petitioner that convincing a
jury of the truth of the petitioner‟s version of events was “going to be a hard sell
especially if the witnesses [were] consistent with what their statements were to police.”
Trial counsel testified that his primary defense strategy was to argue for a
conviction for voluntary manslaughter. Trial counsel explained that his “whole theory”
of the case was that tensions existed between the victim and the petitioner because the
petitioner was in a romantic relationship and living with the victim‟s ex-girlfriend. He
explained that it was problematic to prove this theory because the State‟s witnesses
denied that the petitioner was in a romantic relationship with Ms. Williams. He stated
9
that the testimony of the petitioner‟s sister and brother-in-law got him “eighty percent of
the way” toward establishing the existence of a romantic relationship between Ms.
Williams and the petitioner. Their testimony failed to fully establish the relationship
because they were not at the residence on a daily basis. Self-defense was a secondary
defense theory, and trial counsel testified that he believed that the proof was sufficient to
raise the issue of self-defense. He stated that that he “absolutely” believed he was going
to receive a self-defense instruction. He testified that the focus of the defense “was to
establish friction and hope for manslaughter after that testimony.” Based upon this
belief, he did not believe that it was “worth the risk” to call the petitioner as a witness.
Trial counsel testified that he did not make a motion to reopen the proof after the trial
court denied his request for a self-defense instruction. He testified that he did not tell the
petitioner that he needed to testify in order to receive a self-defense instruction.
Trial counsel testified that he told the petitioner that he was entitled to a hearing
regarding the admissibility of his prior convictions pursuant to Tennessee Rule of
Evidence 609 and State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). Trial counsel
informed the petitioner that the hearing would likely result in the admission of his felony
convictions “for credibility purposes only.” Trial counsel explained that he had tried
“probably ten murder trials in this division” that had 609 hearings and that he knew
“what gets admitted and what doesn‟t.”
Trial counsel testified that he was unsure whether he filed a Rule 609 motion, but
he recalled that he did not ask for a Rule 609 hearing. He testified that the only reasons
he could think of for not filing the motion were the petitioner‟s insistence that he did not
want to testify and trial counsel‟s belief that “it was a virtual certainty that at least one,
but probably all of those violent felony convictions would be admitted . . . to impeach
him for credibility.” Trial counsel felt that the admission of the prior convictions would
ensure that the petitioner was convicted.
Trial counsel testified that it was “inexplicable” that he did not request a Rule 609
hearing. He did not remember specifically writing on a piece of paper at the motion for
new trial hearing that he was “going to have to take the blame for” the failure to have a
609 hearing. However, he testified that he could see himself “telling [the petitioner] that”
he should have requested the hearing. Trial counsel testified that he “[a]bsolutely”
wished that he had requested a 609 hearing.
Trial counsel was presented with several hypothetical scenarios regarding the
outcome of a 609 hearing. Trial counsel stated that if the trial court ruled that the
petitioner‟s violent felony convictions were inadmissible, “it might have changed” his
advice to the petitioner regarding his decision to testify. He testified that the exclusion of
10
only the attempted murder conviction would not have affected his advice to the
petitioner.
Trial counsel testified that he was aware that Ms. Williams had prior convictions
for theft. He testified that he believed the convictions possessed minimal value as
impeachment evidence and that an attempt to use them to impeach Ms. Williams would
not “have been well received by the jury.” Trial counsel believed the attempt at
impeachment could have appeared “distasteful to the jury.” Trial counsel made “a
conscious decision” not to impeach Ms. Williams with the convictions. He agreed that he
attempted to use cross-examination to highlight inconsistencies in Ms. Williams‟s
testimony and to impeach her credibility as a witness.
Trial counsel testified that he did not question Ms. Williams about her
involvement in a scheme to prepare fraudulent tax returns because it bore very little
relevance to her credibility. Ms. Williams was very emotional on the witness stand, and
trial counsel believed that any attempt to impeach her would have been “pretty
distasteful” to the jury. For that same reason, trial counsel did not question her about an
incident at her former place of employment where she would give family members free
merchandise. Similarly, he did not question her about bringing false documents to
purchase a car on the day of the stabbing.
Trial counsel testified that he was not aware that Tommie Braddox3 was charged
with theft of property or for driving on a suspended license prior to the trial. He testified
that he did not believe that the trial court would have permitted cross-examination into
these issues.
Trial counsel testified that he did not think it was necessary to request a mistrial
after Ms. Carmichael testified that she was not comfortable around the petitioner. Trial
counsel did not believe that her testimony “rose to the level of asking for a mistrial,” and
he was not certain that her testimony was even improper. Trial counsel stated that her
response put him “on notice to be careful about the kinds of questions that we asked her.”
Trial counsel was asked about the State‟s closing argument. During rebuttal
closing argument, the prosecutor stated, “What‟s really happening here, ladies and
gentlemen, is that there is no defense to this case. That‟s why all you heard about was
some type of minor inconsistencies.” Trial counsel testified that he did not believe the
3
At the post-conviction hearing, the transcript reflects that Mr. Braddox‟s name was spelled
“Tommy Braddock.” On direct appeal, his name was spelled “Tommie Braddox,” and we utilize that
spelling in this opinion.
11
prosecutor commented on the petitioner‟s decision not to testify during closing argument.
As a result, he did not object to the comment or ask for a mistrial.
Co-counsel testified that he was second chair in this case. Trial counsel was
responsible for the guilt/innocence phase of the trial, and co-counsel was responsible for
the mitigation phase. He stated that he met with the petitioner “plenty of times” prior to
trial both individually and with trial counsel. Co-counsel stated that based upon
conversations with the petitioner and available discovery materials, the defense‟s strategy
was to attempt to establish arguments for self-defense and manslaughter.
Co-counsel testified that the primary defense was manslaughter and that a
“[b]ackup” defense was self-defense. Co-counsel explained that one of the problems
with a self-defense argument was that crime scene photographs showed that the living
room was not in disarray as the petitioner claimed. Co-counsel believed that the
available evidence at the time of trial gave rise to “a colorable argument” for self-
defense, and co-counsel hoped that the trial court would grant an instruction for self-
defense.
Co-counsel recalled that when he joined the case, the petitioner informed him that
he was not going to testify. Co-counsel testified that the petitioner‟s intention “never
changed.” Co-counsel believed that he likely had a conversation with the petitioner about
the advantages and disadvantages of testifying. Co-counsel thought that if the petitioner
attempted to testify regarding self-defense that his prior assault convictions would have
been admissible. Through his interviews with family members, co-counsel learned that
the petitioner sometimes had a “hair-trigger temper,” and co-counsel discussed this
reputation with the petitioner. Co-counsel believed that the petitioner could cause serious
damage to his case if he were to testify and get upset during cross-examination.
Co-counsel testified that trial counsel primarily “would take the lead” in
discussing the admissibility of the petitioner‟s prior convictions. Co-counsel believed
that either he or trial counsel explained to the petitioner that the proof would have to raise
self-defense in order for the petitioner to receive the instruction. Co-counsel did not tell
the petitioner that he needed to testify in order to receive the self-defense instruction or
that the petitioner “was good to go on self-defense” based solely on the State‟s proof.
Co-counsel testified that he discussed with the petitioner whether he should testify.
Co-counsel informed the petitioner that it was his choice and that in co-counsel‟s
professional opinion, the petitioner “probably should not testify.” Co-counsel stated that
the primary reason for this advice was the fact that the petitioner did not want to testify.
He also stated that he believed the petitioner‟s prior convictions would be admissible and
that the petitioner would more likely harm than benefit his case if he testified. He stated
12
that a disadvantage of the petitioner‟s testifying was the risk that the State could address
the facts of his convictions on cross-examination and cause him to get upset during cross-
examination. Co-counsel stated that he and trial counsel told the petitioner that they
believed the trial court would likely admit the petitioner‟s prior convictions if he testified.
Co-counsel testified that he told the petitioner that the decision to testify “ultimately”
belonged to the petitioner.
Co-counsel stated that he likely advised the petitioner at the conclusion of the
proof that it was his decision whether or not to testify. Co-counsel testified that he “more
or less” told the petitioner that he “probably should not testify.” Co-counsel testified that
“at the end of trial, the proof came out better than we hoped.” Co-counsel believed that
the defense “had a very, very strong case for manslaughter.” He informed the petitioner
that the trial court would conduct a hearing to determine the admissibility of his prior
convictions, and co-counsel expressed his belief to the petitioner that the convictions
would be admissible. Co-counsel also told the petitioner that the defense could argue
self-defense. After receiving this advice, the petitioner announced that he did not want to
testify.
Co-counsel explained that the defense did not ask for a Rule 609 hearing because
both trial counsel and co-counsel believed that the petitioner did not wish to testify and
“never once indicated any desire to testify.” He stated that the petitioner was aware that
if he did choose to testify, the court would hold a hearing to determine if his convictions
were admissible. Co-counsel stated that he never told the petitioner that his prior
convictions were “definitely coming in.” Co-counsel discussed the petitioner‟s prior
convictions with him, and he told the petitioner that the underlying facts of the
convictions would be inadmissible if he testified.
The petitioner testified next, and he conveyed his version of the events that
resulted in the victim‟s death. On the evening of the incident, he was at Ms. Williams‟s
house playing basketball in the backyard. He saw the victim arrive at the house, and he
continued to play basketball. Once he believed the victim had left the residence, the
petitioner went inside. The petitioner was attempting to walk toward the bedroom in the
house when the victim blocked his path. The victim told the petitioner, “N*****, I‟ll kill
you,” and he grabbed the petitioner in the chest and “rammed” him against a bookshelf.
The two began to fight, and Ms. Williams and the victim‟s son grabbed the petitioner‟s
arms, restraining him and pulling him across the room. While the petitioner was
restrained, the victim‟s son began punching him in the face. The petitioner saw the
victim pick up an end table, and the victim swung it at him. The petitioner raised his arm
to block the blow, and the table struck him on the elbow. The table fell to the ground,
and the petitioner reached into his pocket for a small switchblade knife. He released the
blade as the victim attempted to attack him a second time. The victim came forward to
13
punch the petitioner, and the petitioner “kind of met” the victim with the blade, stabbing
him one time in the stomach. The petitioner dropped the knife and ran out of the
residence.
The petitioner also testified about a confrontation he had with the victim at a
cookout in 2008. The victim appeared at the cookout and was demanding money from
Ms. Williams. Ms. Williams replied that she did not owe the victim anything and that he
owed her money for child support. The victim then “blurted out,” “MF, you and your
weak-ass boyfriend,” apparently directing the insult toward Ms. Williams and the
petitioner. The petitioner asked what he had to do with the argument between Ms.
Williams and the victim, and the victim “kind of like charged toward” him. Family
members then intervened and broke up the altercation.
The petitioner testified that he would have given the jury the same account of both
events if he testified.
The petitioner testified that trial counsel met with him “maybe eight times” prior
to trial. The petitioner testified that trial counsel explained to him that they “had a
powerful case” and would attempt to argue self-defense. The petitioner stated that he
told trial counsel that he had wanted “to testify since the start.” The petitioner believed
that he expressed his desire to testify to trial counsel “maybe about four times.” He
stated that trial counsel would always tell him, “We‟ll worry about that later.” He
testified that trial counsel told him that it was “a good self-defense case” and that he
planned to argue “self-defense; but, at the least, manslaughter.” The petitioner felt as
though his testimony “was the best thing” for his case. He asked counsel for their
opinion regarding his testimony, and he testified that both counsel told him that they did
not believe he should testify. He stated that counsel told him that they were going to be
able to present the defenses of voluntary manslaughter and self-defense based solely on
the State‟s proof.
The petitioner testified that he discussed his prior convictions with trial counsel.
He stated that trial counsel told him that he should not testify because of his prior
criminal record. The petitioner believed that the underlying facts of his convictions
would be admissible because trial counsel never specifically informed him that the details
were inadmissible. When he discussed his prior convictions, trial counsel would read the
facts and state that he did not want the jury to hear that information. The petitioner took
this statement to mean that the facts would be admissible. He agreed that trial counsel
did not tell him that the details would be admitted. The petitioner stated that he would
have testified if he had been aware that the underlying facts would not be admitted.
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The petitioner testified that he would have taken the stand if trial counsel told him
that he thought the petitioner should testify. The petitioner explained that trial counsel
told him that he had a good case for self-defense, even without his testimony. He stated
that trial counsel never told him that he needed to testify in order to guarantee that the
jury was instructed regarding self-defense. He said that he would have testified if trial
counsel had informed him that he needed to testify to receive a self-defense instruction.
The petitioner believed that trial counsel would be able to argue self-defense without the
petitioner‟s testimony.
The petitioner said that trial counsel informed the petitioner that the State‟s proof
against him was “ugly” and that the trial would not be easy. However, the petitioner
stated that trial counsel informed him that there was enough evidence to attack the State‟s
case and that trial counsel advised him not to testify. The petitioner agreed that he
understood that it was his decision whether he should testify. He testified that he made
his decision not to testify based upon the advice of counsel, who convinced him that
“things were looking bright” at the conclusion of the State‟s proof. The petitioner asked
for trial counsel‟s opinion of the case, and trial counsel told him that “[t]hings are good”
and that the defense had “a good case.” The petitioner stated that trial counsel told him
that his advice was not to testify but that the petitioner could testify if he wanted to. The
petitioner agreed that he never, “at any time,” informed trial counsel that he did not want
to testify. The petitioner testified that trial counsel‟s statement that his prior convictions
would be admitted heavily influenced his decision not to testify.
The petitioner agreed that both counsel explained that they intended to pursue the
defenses of a conviction of a lesser included offense and self-defense. He testified that
counsel said that the testimony of the medical examiner and the fact that he lived at Ms.
Williams‟s residence constituted “good proof” in his case. He stated that he recounted
his version of the stabbing to trial counsel and that trial counsel replied, “I don‟t think the
jury is going to believe that.” Trial counsel informed him that based upon his prior
convictions, the State could attempt to make him “sound bad,” to “stumble on [his]
words,” and “to contradict” him during cross-examination. He said that trial counsel
never told him that he needed to testify in order to receive a self-defense instruction. He
would have testified if he had been so told. Based upon his conversations with trial
counsel, the petitioner believed that trial counsel would be able to argue self-defense
without his testimony. He testified that trial counsel did not tell him that he may need to
reconsider his decision not to testify after the trial court denied the request for a self-
defense instruction.
The petitioner testified that he understood that it was his decision whether to
testify. He stated that he made his decision not to testify based upon the advice of
counsel.
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The petitioner stated that trial counsel never informed him that he had a right to a
609 hearing. The petitioner testified that he brought up a Morgan hearing with trial
counsel after researching the issue and that trial counsel informed him that the hearing
was optional. He testified that Morgan only was discussed “in the beginning stages” of
his case and that the issue was not discussed during trial. He said that trial counsel
informed him that the hearing was optional but told the petitioner not to worry about it
and “kind of brushed the topic back.” Trial counsel did not inform him that he could
argue at a Morgan hearing that his convictions were inadmissible. He testified that if he
had this knowledge, he would have “immediately” requested the hearing. Trial counsel
informed the petitioner that he believed that all of his convictions would come in if the
petitioner testified. The petitioner testified that if his prior violent felony convictions had
been excluded, he would have testified.
The petitioner testified that at his motion for new trial hearing, trial counsel told
him that he “felt bad” and that he wrote on a notepad, “I got to take the blame for this. . . .
On post conviction, no Morgan hearing. . . . I should have done it.” He felt that trial
counsel should have requested a Morgan hearing. He felt that trial counsel could have
done “a better job with the closing argument - impeaching the state‟s witnesses
concerning the prior convictions. Not showing sympathy.” He felt that trial counsel
could have been more “aggressive” in representing the petitioner.
The petitioner stated that he met with co-counsel “four to five times” in jail prior
to his trial. He stated that co-counsel echoed trial counsel‟s recommendations on
strategy. He testified that co-counsel informed him that the decision of whether to testify
was left to the petitioner and trial counsel. He stated that co-counsel never discussed the
pros and cons of testifying, a Morgan hearing, the admissibility of his prior convictions,
or a self-defense instruction. Co-counsel never told the petitioner that he needed to
testify in order to get a self-defense instruction. The petitioner did not discuss the
underlying facts of his convictions with co-counsel.
The petitioner testified that he informed trial counsel about Ms. Williams‟s prior
dishonest acts. He informed trial counsel that Ms. Williams and her mother had
participated in “preparing bogus income tax” returns and that Ms. Williams had prior
convictions for theft. He also informed trial counsel why Ms. Williams was fired from
her previous place of employment. He told trial counsel about Ms. Williams‟s using fake
check stubs to purchase a new car on the day of the stabbing.
The petitioner testified that he would “get very personal” with trial counsel when
discussing the case and informed trial counsel that he wanted his “side of the story to be
16
told” and that he needed “to say something” after seeing that “everybody was against”
him.
On cross-examination, the petitioner testified that he did not have a hair-trigger
temper or get upset easily. He agreed that he never expressed to the trial court a desire to
testify. He agreed that he understood that he could open the door to the underlying facts
of his prior convictions by his testimony at trial. The petitioner testified that he “felt
good” at the conclusion of his proof.
In its oral findings, the post-conviction court first addressed the petitioner‟s
arguments regarding the 609 hearing. The court stated that it would not determine
whether it would have admitted the convictions but would limit its findings to whether it
was ineffective for trial counsel to fail to request the hearing. The post-conviction court
credited the testimony of counsel that the petitioner did not wish to testify and found that
his desire not to testify provided counsel with “a rational and reasonable explanation” and
“a valid reason” for not requesting the 609 hearing. The court found that the petitioner‟s
specific indication that he did not wish to testify provided “a rational reason” as to why
trial counsel did not request a 609 hearing.
The court implicitly credited trial counsel‟s testimony that their best strategy at
trial was to attempt to obtain a conviction for the lesser included offense of manslaughter
based on the proof at trial. The court noted that often times, a defendant needed to testify
in order to receive a self-defense instruction. The court observed that there was an
“indication” that the petitioner could harm his case if he testified based upon his
demeanor during the post-conviction hearing. The court found that in light of the
petitioner‟s demeanor on the witness stand, the risk of opening the door to the facts of his
convictions by testifying that the victim was the first aggressor, and the fact that he was
facing the death penalty, that it would have been “a piece of very dangerous advice” to
urge the defendant to testify.
The court found that the petitioner “made a valid decision not to testify” and that
counsel “had fully advised [the petitioner] of what would and could happen if he did
testify.” The court found that counsel had provided the petitioner with their opinion as to
whether he should testify but that counsel permitted the petitioner “to make that ultimate
decision.” The court found that trial counsel was not ineffective “for not trying to talk
him into getting on the witness stand and testifying.” The court implicitly credited the
testimony of counsel that they believed the proof was sufficient to warrant a self-defense
instruction. The court noted that it did not believe it would have permitted the defense to
reopen the proof and call the petitioner to testify after denying the request for a self-
defense instruction. The court found that even if it had given the requested instruction, it
did not appear likely that the jury would have acquitted the petitioner.
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The post-conviction court found that trial counsel made a strategic decision not to
cross-examine Ms. Williams about her prior convictions and that trial counsel provided a
“logical” explanation for his decision. The court found that impeaching Ms. Williams
would not have affected the outcome of the trial, because other witnesses corroborated
Ms. Williams‟s testimony and the impeachment would not have gained the defense any
real advantage at trial. The court found that the petitioner had failed to demonstrate that
he was prejudiced by trial counsel‟s decision.
The post-conviction court made a similar finding in regards to Mr. Braddox. The
court noted that it was “not even sure that it would have been proper to attempt to
impeach Mr. [Braddox] on that driving charge.” The court found that trial counsel made
a strategic decision not to impeach Mr. Braddox and that the petitioner had not
demonstrated any prejudice stemming from this decision.
The post-conviction court found that trial counsel was not ineffective for failing to
ask for a mistrial after Ms. Carmichael‟s testimony. The court observed that it did not
“see any basis for granting a mistrial if one had been requested.” The court found that the
petitioner again failed to demonstrate that he was prejudiced by trial counsel‟s decision.
The court found that the State‟s closing argument was not a comment on the
petitioner‟s decision not to testify. The court found that the comments were in reference
to the closing argument of the defense that the proof demonstrated that a finding of self-
defense or a conviction of a lesser included offense was proper. The court stated that it
did not believe that the jury interpreted the argument as a comment on the petitioner‟s
decision not to testify. The court found that the argument was “more a comment on the
fact that there is no defense in this case based upon the facts.”
After issuing its findings, the post-conviction court orally denied the petition for
post-conviction relief. The court later issued a written order denying the petition. The
petitioner filed a timely notice of appeal, and we now proceed to consider his claims.
ANALYSIS
On appeal, the petitioner raises several claims of ineffective assistance of counsel.
He contends that counsel were ineffective for failing to inform the petitioner that the
underlying facts of his convictions would be admissible if he testified and for failing to
request a 609 hearing; advising the petitioner not to testify and for failing to advise him
that he needed to testify in order to receive a self-defense instruction or to be convicted of
a lesser included offense; failing to impeach Ms. Williams and Mr. Braddox with their
prior bad acts; failing to request a mistrial after the testimony of Ms. Carmichael; and
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failing to request a mistrial or object during the State‟s closing argument. He also
contends that the cumulative effect of counsel‟s errors warrants post-conviction relief.
The State responds that the petitioner received the effective assistance of counsel.
Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2010). The
petitioner bears the burden of proving the allegations of fact giving rise to the claim by
clear and convincing evidence. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009).
“„Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.‟” Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)). This court generally defers “to a post-conviction court‟s findings
with respect to witness credibility, the weight and value of witness testimony, and the
resolution of factual issues presented by the evidence.” Mobley v. State, 397 S.W.3d 70,
80 (Tenn. 2013). Claims for post-conviction relief premised on ineffective assistance of
counsel present mixed questions of law and fact, which this court reviews de novo with
no presumption of correctness. Id.
Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution guarantee the right to counsel. This right affords an
individual representation that is “within the range of competence demanded of attorneys
in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is
ineffective when “counsel‟s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).
In order to prevail on a claim of ineffective assistance of counsel, the petitioner
must prove by clear and convincing evidence that: (1) counsel‟s performance was
deficient; and (2) the deficiency prejudiced the petitioner to the degree that the petitioner
did not receive a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the
deficiency prong of the test by showing that counsel‟s representation fell below an
objective standard of reasonableness; that is, “the services rendered or the advice given
must have been below „the range of competence demanded of attorneys in criminal
cases.‟” Grindstaff, 297 S.W.3d at 216 (quoting Baxter, 523 S.W.2d at 936); see
Strickland, 466 U.S. at 687. The petitioner must demonstrate that “counsel made errors
so serious that counsel was not functioning as the „counsel‟ guaranteed the defendant by
the Sixth Amendment.” Strickland, 466 U.S. at 687. Courts evaluating the performance
of an attorney “should indulge a strong presumption that counsel‟s conduct falls within
the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999). In order to fairly assess counsel‟s conduct, every effort must be made “to
19
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, 466 U.S. at 689. “The fact that a particular strategy or tactic failed or hurt the
defense, does not, standing alone, establish unreasonable representation.” Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996).
Prejudice requires the petitioner to show “that there is a reasonable probability
that, but for counsel‟s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. If the petitioner fails to establish
either deficiency or prejudice, post-conviction relief is not appropriate, and this court
need not address both components if the petitioner makes an insufficient showing as to
one component. Grindstaff, 297 S.W.3d at 216 (citing Goad, 938 S.W.2d at 370).
I. Rule 609 Hearing
The petitioner argues that trial counsel was ineffective for failing to inform him
that the underlying facts of his prior convictions would be inadmissible if he testified. In
the post-conviction hearing and in his brief, the petitioner maintained that even if all of
his prior convictions were admissible, he would have testified had trial counsel informed
him that the underlying facts of the convictions would be inadmissible. This claim is
contradicted by the testimony at the hearing. Trial counsel stated that he made it
“exhaustive[ly]” clear to the petitioner that the State could not question him about the
underlying facts of his convictions if he chose to testify. Co-counsel also testified that he
informed the petitioner that the underlying facts of his convictions would not be
admissible if the petitioner testified. The post-conviction court credited the testimony of
counsel that they informed the petitioner of the consequences of his testimony. The
petitioner has failed to establish that trial counsel performed deficiently in this regard.
The petitioner also argues that trial counsel was ineffective for failing to request a
Rule 609 hearing. He contends that the record preponderates against the post-conviction
court‟s findings of fact that he expressed a desire not to testify. He next claims that the
failure to have a hearing was deficient performance because it deprived him of the ability
to make a truly knowing and voluntary decision not to testify. He also argues that the
failure to request a hearing affected the outcome of the case. He contends that the trial
court would have ruled the petitioner‟s prior violent felony convictions inadmissible for
impeachment purposes, which would have caused him to testify at trial and ultimately led
to his acquittal or a conviction of a lesser included offense.
In regards to the 609 hearing, trial counsel testified that it was “inexplicable” that
he did not request a Rule 609 hearing. He stated that his primary reason for not
20
requesting a hearing was the petitioner‟s insistence that he did not want to testify. Both
trial counsel and co-counsel testified that the petitioner repeatedly asserted that he did not
wish to testify. The post-conviction court found that the petitioner‟s specific indication
that he did not wish to testify provided a rational explanation as to why trial counsel did
not request a Rule 609 hearing. The post-conviction court found that the petitioner was
advised as to the advantages and disadvantages of testifying and that he made a valid
decision not to testify. The court also credited the testimony of trial counsel that the
petitioner did not want to testify over the testimony of the petitioner to the opposite
effect. A post-conviction court is in the best position to assess the credibility of the
witnesses at a post-conviction hearing, and we conclude that the evidence does not
preponderate against the findings of the post-conviction court.
Moreover, the petitioner has failed to demonstrate that the failure of counsel to
request a 609 hearing caused him prejudice. The post-conviction court did not make a
finding as to whether any or all of the petitioner‟s prior violent felony convictions would
have been admissible for impeachment purposes. The record reflects that the petitioner
had two prior felony convictions for aggravated assault and one conviction for attempted
second degree murder that were within ten years of the prosecution. Regardless of the
admissibility of the convictions for impeachment purposes, there was the possibility that
the convictions could have been admitted had he testified at trial. Gregory Hill v. State,
No. E2014-01686-CCA-R3-PC, 2015 WL 5275964, at *6 (Tenn. Crim. App. Sept. 10,
2015) (citing Michael Braxton v. State, No. M2006-01894-CCA-R3-PC, 2007 WL
1988141, at *4 (Tenn. Crim. App. July 10, 2007)). The petitioner could have opened the
door to the convictions. Id. (citing State v. Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim.
App. 1996)). The convictions also may have been admitted as substantive evidence
under Tennessee Rule of Evidence 404(b) to rebut a claim of self-defense. Hill, 2015
WL 5275964, at *6. Finally, even if the petitioner had taken the stand, his version of
events was directly contradicted by all of the State‟s witnesses who viewed the stabbing.
The witnesses testified that the petitioner initiated the attack, ambushing the victim as the
victim attempted to leave. Witnesses also testified that the victim picked up an end table
but put it down without striking the petitioner with it and that this occurred after the
petitioner first attacked the victim. Additionally, there was not a knife recovered at the
scene. The petitioner has not demonstrated a reasonable probability that had trial counsel
conducted a Rule 609 hearing, he would have testified and that his testimony would have
affected the outcome of his trial. The petitioner is not entitled to any relief.
II. Testimony of the Petitioner
The petitioner argues that trial counsel was ineffective for advising him not to
testify. He also argues that trial counsel was ineffective for failing to advise him that he
21
needed to testify in order to receive a self-defense instruction or to be convicted of a
lesser included offense.
The post-conviction court found that trial counsel had a valid apprehension about
calling the petitioner as a witness. Based upon the petitioner‟s demeanor as a witness at
the post-conviction hearing and his reputation for having a quick temper, the fact that he
was facing the death penalty, and the risk of opening the door to the underlying facts of
his prior convictions, the court found that advising the petitioner that he needed to testify
would have been “a piece of very dangerous advice.” The court also found that,
especially if it credited counsel‟s testimony that the petitioner was adamant about his
desire not to testify, later advising the petitioner that he needed to testify would have
placed counsel in a precarious position, implying that such advice may have been
grounds for a legitimate claim of ineffective assistance of counsel. The court credited the
testimony of trial counsel that he fully advised the petitioner of the advantages and
disadvantages of testifying but that the choice ultimately belonged to the petitioner.
Finally, the court found that the petitioner made a valid decision not to testify and that he
did not have any questions or concerns when he informed the trial court that he did not
wish to testify. We conclude that the petitioner has not shown that trial counsel
performed deficiently.
We also conclude that trial counsel was not ineffective in not telling the petitioner
that he needed to testify in order to guarantee a self-defense instruction or to be convicted
of a lesser included offense. Stating that self-defense was “a longshot,” trial counsel
made the strategic decision to first argue for a conviction for voluntary manslaughter, and
self-defense was a secondary theory. Both counsel testified that the petitioner was aware
of and agreed to this defense strategy. Both counsel testified that they believed the proof
was sufficient to warrant a self-defense instruction, and the post-conviction court found
that it would not have permitted the defense to reopen the proof after denying the request
for a self-defense instruction. Further, the court found that even if it had granted trial
counsel‟s request for a self-defense instruction, such an instruction would not have
affected the verdict. The court also found that the case presented “[a] classic legal
argument” for the jury to determine whether the petitioner was guilty of first degree
(premeditated) murder or voluntary manslaughter. The petitioner has failed to
demonstrate that trial counsel performed deficiently or that the petitioner suffered any
prejudice. The petitioner is not entitled to any relief as to this claim.
III. Impeachment of Witnesses
The petitioner argues that trial counsel was ineffective for failing to impeach Ms.
Williams with her prior convictions and prior dishonest acts. He contends that Ms.
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Williams‟s testimony was particularly damaging and that, because she was the State‟s
primary witness, it was imperative to attack her credibility and discredit her as a witness.
He also contends that trial counsel was ineffective for failing to impeach Mr. Braddox
with his prior citations.
Trial counsel testified that he was aware of Ms. Williams‟s prior convictions and
acts of dishonesty and did not use them for impeachment purposes because he believed
they had little probative value and would be poorly received by the jury. In regards to
Mr. Braddox, trial counsel testified that he was not sure that he was aware of Mr.
Braddox‟s charges for theft and driving without a license. The post-conviction court
found that trial counsel made a reasonable strategic decision not to impeach Ms.
Williams, and the court opined that it would not second guess the decision. The court
also found that impeaching Ms. Williams with her prior convictions would not have
affected the verdict in this case. On appeal, this court will not second guess strategic
decisions made by trial counsel. See Vaughn, 202 S.W.3d at 123. The post-conviction
court stated that it was unsure whether it would have been proper to attempt to impeach
Mr. Braddox on the driving charge. Even if the theft charge were admissible as
impeachment evidence, it would only impeach Mr. Braddox, and the testimony of the
other witnesses was still consistent. We agree with the post-conviction court that trial
counsel did not provide ineffective assistance of counsel. The petitioner is not entitled to
any relief.
IV. Motion for a Mistrial
The petitioner argues that trial counsel was ineffective for failing to request a
mistrial after Ms. Carmichael testified that the petitioner made her uncomfortable. He
contends that the testimony was irrelevant and prejudicial and that had trial counsel
objected and preserved the issue on appeal, this court would have concluded that the
testimony required a mistrial.
Trial counsel testified that he did not believe that Ms. Carmichael‟s testimony rose
to the level of requesting a mistrial, and he was unsure that her testimony was even
improper. The post-conviction court found that her testimony did not present any
circumstances that would have caused the court to grant a mistrial. The court also found
that the testimony did not prejudice the petitioner. The record does not preponderate
against the findings of the post-conviction court, and the petitioner is not entitled to any
relief.
V. Closing Argument
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The petitioner argues that trial counsel was ineffective for failing to object and
failing to request a mistrial during the State‟s closing argument. He contends that the
argument could have been perceived as a comment on his decision not to testify and that
had the issue been preserved for appeal, this court would have found reversible error.
As part of rebuttal closing argument, the prosecutor stated, “What‟s really
happening here, ladies and gentlemen, is that there is no defense to this case. That‟s why
all you heard about was some type of minor inconsistencies.” Both counsel testified that
they did not believe the argument was a comment on the petitioner‟s decision not to
testify. Trial counsel stated that he did not object for that reason. The post-conviction
court found that the comment was made in response to the closing argument of the
defense, which raised the issue that the petitioner was either guilty of voluntary
manslaughter or acted in self-defense. The court found that the argument was not a
comment on the petitioner‟s decision not to testify and that it would not have been so
perceived by the jury. The record does not preponderate against the findings of the post-
conviction court. The petitioner is not entitled to any relief.
VI. Cumulative Error
In his final claim, the petitioner argues that the cumulative effect of counsel‟s
deficient performance warrants post-conviction relief. In order for the cumulative error
doctrine to apply, there must be more than one error committed at trial. State v. Hester,
324 S.W.3d 1, 77 (Tenn. 2010). As we have found no deficiencies in trial counsel‟s
performance, the doctrine affords the petitioner no relief.
CONCLUSION
Based upon the foregoing, the judgment of the post-conviction court is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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