Deeric McAfee v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 19, 2015
DEERIC MCAFEE v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Knox County
No. 101445 Mary Beth Leibowitz, Judge
No. E2014-01829-CCA-R3-PC – Filed July 16, 2015
The petitioner, Deeric McAfee, filed in the Knox County Criminal Court a petition for
post-conviction relief from his convictions of second degree murder and reckless
endangerment. The petitioner alleged that his trial counsel was ineffective. The post-
conviction court denied the petition, and the petitioner appeals. Upon review, we affirm
the judgment of the post-conviction court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Deeric McAfee.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On direct appeal, this court summarized the proof adduced at trial as follows:
On February 19, 2008, the Knox County Grand Jury
indicted the [petitioner] for the premeditated first degree
murder of Tray Sherman and for the reckless endangerment
of Timothy Flack, Jr. At trial, Roberta Flack testified that in
2007, she worked as a secretary and was addicted to cocaine.
In October 2007, Flack lived in a residence at 1511
Connecticut Avenue with her three minor children, the
youngest of whom, Timothy Flack, Jr., was four years old.
Her cousin, Anna Street, also lived with her. Flack stated that
twenty-three-year-old Sherman was her boyfriend and that he
occasionally stayed with her. However, she noted that their
relationship was not exclusive. Flack acknowledged that she
kept drugs in the house, that she used drugs with Sherman,
and that Sherman sold drugs. Flack said that the [petitioner]
had previously been to her house with her cousin, Precious
Pruitt, and that he lived with his grandmother and other
family members on the next street.
Flack said that on October 8, 2007, Sherman and his
friend, Robert Davis, came to her house around 6:30 p.m. or
7:00 p.m. Sherman was driving his green Suburban, and he
parked in the driveway. When he arrived, Moneek Logan
was on the porch with Timothy and Logan‟s niece. Street,
Diez Debro, and Flack were in the kitchen. Sherman came
into the kitchen, upset and scared, and told Flack that he had a
confrontation at a store down the street with Treece Hamilton,
who was the [petitioner‟s] cousin. He said that Hamilton was
injured during the confrontation. Flack said that Hamilton
had been her friend and that Hamilton and Sherman had
previously argued because of jealousy.
Later, Flack and Sherman left the house, intending to
go to the store for cigarettes and to take Davis home. As they
stepped outside, Flack saw the [petitioner] sitting on the
porch with his head down. She asked what was wrong, the
[petitioner] replied that nothing was wrong, and he got up as
if to leave. Flack and Davis walked toward Sherman‟s truck.
The [petitioner] and Sherman stood at the edge of the
driveway near the sidewalk and started talking. They did not
argue and smoked marijuana together. Flack and Davis
repeatedly told Sherman that they needed to leave.
Eventually, when Sherman ended the conversation and turned
to walk toward his truck, Flack saw a flash from a gun.
Sherman began to run, and Flack heard a couple more
gunshots. Flack said that Davis ran away, but she did not
know in which direction. The [petitioner] ran toward the park
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across the street from Flack‟s house, in the direction of the
[petitioner‟s] grandmother‟s house.
Flack told Logan, who was still on the porch with the
children, to take the children inside the house. Logan
complied. Flack looked for Sherman and found him lying in
an alley around the corner from the house. Flack tried to talk
to Sherman. Street came to the alley and started performing
CPR on Sherman. Flack heard blood rattling in Sherman‟s
lungs and told Street to stop. Flack called 911. Before police
arrived, Flack removed $20 in cash and cocaine from
Sherman‟s pocket. She gave the items to Street and told her
to get rid of them. Flack said that either the police or
paramedics removed Sherman‟s white t-shirt while trying to
resuscitate him. Flack stated that Sherman did not have a gun
that night.
Flack said that, after midnight, she spoke to
Investigator Still. She identified the [petitioner] as the
shooter, but did not disclose that she had taken drugs from
Sherman‟s pocket. She stated that she later saw bullet holes
in her house and that the holes were not there prior to the
incident.
Flack said that after the shooting, she received calls
and “dirty looks” from the [petitioner‟s] friends and family
and that she feared for her family. Accordingly, she moved
away from Knoxville.
On cross-examination, Flack acknowledged that she
was on probation for a “bad check” charge in Ohio. She said
that she gave the cocaine she took from Sherman to Street and
that Street hid it between her breasts. Flack acknowledged
that Sherman occasionally carried a gun but maintained that
he was not carrying a gun on the night of the shooting.
Flack stated that Sherman was about 6 feet tall and
weighed approximately 240 pounds. She said that Hamilton
was approximately 5 feet tall and weighed more than 150
pounds. Flack stated that Hamilton was known to carry a
knife and guns. When Sherman arrived at Flack‟s house, he
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told her that he hit Hamilton after she threatened him and
reached into her purse. Flack said that when she and
Sherman came outside the house, the [petitioner] called
Sherman over to him to talk. Flack stated that she thought the
men were “talkin[g] about the confrontation, but it was no
upset.” She said that the [petitioner] was wearing a long t-
shirt, and Flack thought that the [petitioner] took the gun from
his pants pocket or from his belt. She saw the gun in the
[petitioner‟s] hand after the shooting. Flack said that
although the [petitioner] had been at her house many times,
he had never caused trouble until that night.
Moneek Logan testified that she and Flack were
friends and that on the night of October 8, 2007, she was at
Flack‟s house. Logan said that sometime after 6:30 p.m., she
was sitting on the porch, and Sherman and Flack were inside
the house. Later, they came outside, and Flack walked
toward Sherman‟s truck. Logan went into the house, got a
beer, and went back outside. She saw Sherman and the
[petitioner] . . . calmly talking. When Logan turned around,
she heard shots fired. She saw the [petitioner] run toward the
porch and Sherman run toward the back of the house. She
said that she never saw a gun.
On cross-examination, Logan stated that after the
shooting, she left the house and went to the alley where
Sherman was lying. She saw Flack try to revive him, but he
was already dead. She said that she did not see Flack go
through Sherman‟s pockets.
Knoxville Police Investigator Steve Still testified that
he arrived at the scene at approximately 9:03 p.m. on October
8, 2007. He spoke with people on the scene and learned that
the [petitioner] was the shooter. After about an hour,
Investigator Still went to the hospital and saw Sherman‟s
body. Investigator Still saw a gunshot wound to the back of
Sherman‟s left torso.
Investigator Still said that based upon his
investigation, he concluded that the shooter was standing near
the sidewalk and fired toward the direction of the house.
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Flack specifically told Investigator Still that Sherman did not
have a gun, and no other witness reported Sherman having a
gun.
Investigator Still said that when he looked at
Sherman‟s shirt, he saw a bullet hole surrounded by
gunpowder burns, which indicated the shot was fired at close
range.
On cross-examination, Investigator Still said that he
had seen a police report documenting the incident between
Sherman and Hamilton. He said that Hamilton had an injury
to her face or nose. He stated that he did not know if the
[petitioner], who was related to Hamilton, knew of the
altercation before going to Flack‟s house.
Knoxville Police Crime Scene Officer Gerald Smith
testified that at 9:20 p.m. on October 8, 2007, he reported to
the scene of a shooting at 1511 Connecticut Avenue. Upon
arrival, he learned that paramedics had already taken Sherman
to the hospital. Officer Smith was informed that Sherman
was discovered lying in an alley behind the residence.
Officer Smith went to the alley and found a size XXXL white
t-shirt that had a bullet hole in it and was stained with blood.
Gunpowder was surrounding the bullet hole in the t-shirt,
which indicated that the gun had been fired at close range.
Officer Smith said that police never recovered a weapon in
connection with the case.
Officer Smith testified that bullets had struck the front
of the house. Specifically, a bullet hole was located between
a window and the right side of the house and another was
found in a down spout at the corner of the house. The
location of the bullet holes indicated that the shots were fired
toward the front of the house. Officer Smith stated that he did
not find any cartridge casings at the scene, which suggested
that the weapon involved was likely a revolver.
Officer Smith said that after examining the crime
scene, he went to the University of Tennessee Medical Center
emergency room trauma bay where he learned that Sherman
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had been pronounced dead. In the emergency room, Officer
Smith took photographs of the bullet entrance wound, which
was located on Sherman‟s left side near the back. Officer
Smith accompanied Sherman‟s body to the Forensic Center
where the Knox County Medical Examiner performed
autopsies. After the autopsy, Officer Smith recovered the
bullet that struck Sherman.
On cross-examination, Officer Smith stated that during
his investigation, he found nothing to indicate that Sherman
had a gun. Therefore, no gunshot residue test was performed
on Sherman. He stated that the bullet recovered during the
autopsy was a medium caliber, such as .32, .380, or 9
millimeter.
Knoxville Police Officer Edward Todd testified that at
approximately 6:00 p.m. on October 10, he and Investigator
Still met at the scene to perform a follow-up investigation.
He stated that they were unable to find the bullets that were
shot into the front of the house.
On October 9, 2007, Dr. Darinka Mileusnic-Polchan,
the Chief Medical Examiner for Knox and Anderson
Counties, performed an autopsy on Sherman. She determined
that the manner of Sherman‟s death was homicide and that
the cause of Sherman‟s death was a single gunshot wound to
the chest area. Dr. Mileusnic-Polchan testified that the bullet
entered the left side of the chest between the ninth and tenth
ribs, perforated the left lung, damaged the diaphragm, tore the
aorta and the esophagus, and damaged the liver and the right
lung. The bullet caused extensive internal bleeding. Dr.
Mileusnic-Polchan found a small caliber bullet in the
accumulated blood in the chest cavity. She found gunshot
residue indicating that the bullet was fired from “extremely
close range.” She stated that the only thing she could
definitively say about the position of the shooter was that the
muzzle of the gun was pointing toward Sherman‟s left side or
back and slightly upward. Dr. Mileusnic-Polchan said that
the victim would have been able to move for a short time
after the wound was inflicted. Sherman‟s blood tested
positive for cocaine.
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On cross-examination, Dr. Mileusnic-Polchan said that
Sherman was 5 feet, 9 inches tall and weighed 225 pounds.
The bullet traveled “slightly back to front, left to right, and
slightly upward.”
The State rested its case-in-chief.
Anna Street testified on behalf of the [petitioner].
Street confirmed that in 2007, she was living with Flack on
Connecticut Avenue. She stated that Flack was a liar, a thief,
and a junkie.
Street stated that on October 8, 2007, Flack, Sherman,
and Davis were in Flack‟s kitchen, snorting cocaine and
talking about an incident that happened earlier. Afterward,
they went outside. The children were in the kitchen, and
Street went to the front bedroom, which faced the front porch.
Street said she looked out the window and saw the
[petitioner] walking down Connecticut Avenue toward
Flack‟s house. Street could not see what transpired outside,
but she heard three gunshots that sounded like they were
being fired from two different guns. Street looked out the
back window and saw Sherman running down the driveway
beside the house. Sherman was holding himself, had a gun in
his hand, and fell in the alley behind the house. She saw
Flack approach Sherman, grab the gun, and take drugs from
his pocket. Flack “got rid of” the gun then began yelling for
help. Street went outside, and Flack asked her to help. Street
began performing CPR. Street said that Flack asked her to
hide the drugs and that she told Flack she did not want them.
Street admitted that she did not tell the police about seeing
Flack remove the gun from Sherman‟s hand.
On cross-examination, Street said that she ran errands
during the day of October 8, 2007, and that she got to Flack‟s
house around 6:00 or 6:30 p.m. She stated that Logan could
have taken Timothy outside at some point, acknowledging
that she was not watching Timothy‟s every move. Street said
that she did not know where Flack hid Sherman‟s gun. Street
stated that she told Investigator Still that Sherman had hit
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Hamilton hard and that Hamilton had to go to the hospital.
Street said that during her statement, she lied to police about
Timothy being outside at the time of the shooting and about
seeing no one with a gun, maintaining that she lied because
she did not want to be involved and because Flack had
threatened her.
Nicole (“Treece”) Hamilton testified that the
[petitioner] was her younger cousin and that he was eighteen
years old at the time of the incident. She said that on October
8, 2007, she was standing outside Burnside Market with a
friend when Sherman drove up, jumped out of the car, and hit
her left eye. She said the eye came out of the socket. There
was no bleeding, but the tear pocket burst and “ran water.”
Thereafter, she was taken to Fort Sanders Hospital, then she
was transferred to the University of Tennessee Medical
Center. She stated that she did not remember anything after
she left Fort Sanders until she woke in the hospital a day or
two later. She said that she remained in the hospital for
almost two weeks. She stated that she was legally blind in
her left eye and was going blind in her right eye. Hamilton
denied ever threatening Sherman, noting that he was a large
man.
Robert Dwight Wade testified that in October 2007, he
lived about a block away from the [petitioner]. At around
7:00 or 8:00 p.m. on October 8, 2007, the [petitioner] called
Wade and asked him to go to the basketball court. Wade told
the [petitioner] that he could not go because he was “on
punishment.” He told the [petitioner] that they could play
basketball at Wade‟s house, but the [petitioner] never came to
Wade‟s house that night.
Robert Davis testified that he was with Sherman on
October 8, 2007. He stated that he saw Sherman hit Hamilton
in front of the Burnside Market. Davis said that Sherman
always carried a gun and that he had a black .38 revolver with
him that day, wearing it against his hip and concealing it with
his shirt. Following the altercation, Davis and Sherman went
to Flack‟s house. Upon arriving, they went inside and snorted
cocaine. After a while, Sherman agreed to take Davis home,
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and they went outside. Davis did not notice the [petitioner]
approach the house, but he later saw him speaking with
Sherman at the curb. Their conversation was not loud. Next,
Davis heard gunshots and saw the [petitioner] running away.
Davis could not recall the direction in which the [petitioner]
ran. After the shots, Sherman ran behind the house into the
alley, still carrying his gun.
Davis testified that Flack told him to not let the
[petitioner] “„get away with this,‟” saying that he needed to
tell the police that Sherman did not have a gun. Davis said
that he complied and lied when he gave his statement. He
changed his story one or two weeks before trial when he told
the State that he had lied in his statement. Davis admitted
that he was on probation and had numerous prior convictions.
The twenty-one-year-old [petitioner] testified that he . .
. had never been arrested before this incident and that he had
been to Flack‟s house many times. He stated that he knew of
Sherman; specifically, he knew Sherman was a drug dealer
and, therefore, believed Sherman carried a gun.
On October 8, 2007, the [petitioner] had been at a
junkyard with a cousin. He returned to his grandmother‟s
house around 7:00 or 8:00 p.m. The [petitioner] said that he
did not learn of anything happening to Hamilton that day. At
home, the [petitioner] changed clothes and called Wade about
playing basketball. After the call, the [petitioner] began
walking toward Wade‟s house. The [petitioner] said that he
had to walk past Flack‟s house to get to Wade‟s house. The
[petitioner] said that he was wearing a t-shirt, a pair of
basketball shorts, and another pair of shorts. He
acknowledged that he was carrying a .38 caliber revolver for
protection.
As the [petitioner] passed Flack‟s house, Sherman and
Davis came out of Flack‟s house. Flack said “hey” to the
[petitioner], and Davis asked him for a cigarette. The
[petitioner] approached and gave Davis the cigarette.
Sherman walked over to the [petitioner] and started talking to
him. The [petitioner] said that Sherman was acting “hyper.”
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Sherman told the [petitioner] “about him hittin[g] some bitch
in the eye.” Later in the conversation, Sherman revealed that
the person he hit was Hamilton. The [petitioner] told
Sherman to not disrespect his cousin. Sherman continued
speaking of Hamilton in derogatory terms. The [petitioner]
said that he was feeling shaky and scared because Sherman
had hit his cousin, Sherman was much bigger than the
[petitioner], and Sherman had a reputation for carrying a gun.
The [petitioner] said that Sherman took out some cocaine and
snorted it. The [petitioner] again asked Sherman to refrain
from disrespecting his cousin. Sherman responded, “I don‟t
really give a f[***] about s[***] „cause I keep my heater.”
Sherman lifted his shirt and showed the [petitioner] his gun
which was tucked into his waistband. Sherman then told the
[petitioner] to “go get [his] whole family,” and he reached for
his gun. The [petitioner] then grabbed his own gun and shot
Sherman. The [petitioner] said that after he was shot,
Sherman turned and fired at the [petitioner], and the
[petitioner] heard another gunshot. He shot backwards
toward Sherman and ran in the direction of his grandmother‟s
house.
As he ran, the [petitioner] threw his gun into a
dumpster by the “Rec Center.” He said that he did not want
to keep the gun because he knew he had shot Sherman. The
[petitioner] did not know until later that Sherman was dead.
He stated that he drew his gun in self[-]defense because
Sherman drew his gun and the [petitioner] feared Sherman
would kill him.
On cross-examination, the [petitioner] conceded that
he did not dispute that Sherman‟s gunshot wound was
inflicted at close range. The [petitioner] also conceded that
he shot toward the house at least one other time. He
acknowledged that he did not turn himself into the police
until two days after the shooting and after speaking with his
grandmother and an attorney. The [petitioner] said that he
obtained the revolver in July 2007. He agreed that Sherman‟s
“disrespecting” Hamilton angered him. The [petitioner]
maintained that he had fired a gun only one time prior to
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October 8, 2007. The [petitioner] asserted that there were no
children on the front porch of Flack‟s house.
State v. Deeric McAfee, No. E2010-01730-CCA-R3-CD, 2013 WL 794330, at *1-7
(Tenn. Crim. App. at Knoxville, Mar. 4, 2013) (footnote omitted). The jury convicted the
petitioner of second degree murder and reckless endangerment, for which he received a
total effective sentence of twenty years. Id.
Thereafter, the petitioner filed a petition for post-conviction relief. He alleged that
his trial counsel was ineffective by failing to request a hearing under Tennessee Rule of
Evidence 404(a)(2) to allow the introduction of evidence of Sherman‟s prior arrests for
drug and gun offenses, which evidence the petitioner contends would have corroborated
his claim that Sherman was the first aggressor.
At the post-conviction hearing, both parties relied solely upon the arguments of
counsel and did not put on proof. The petitioner‟s post-conviction counsel noted that at
trial, trial counsel asked the court to allow the defense to introduce “the fact that there
were pending felony drug charges against Mr. Sherman who was the victim of the case
on the theory that that would support Mr. Sherman‟s propensity for violence when self-
defense has been raised in this case and his propensity to be the first aggressor.” 1 Post-
conviction counsel observed that at the time defense counsel made the request, self-
defense had not yet been raised by the proof. The trial court told counsel that it would
address the issue after self-defense had been raised. Trial counsel, however, did not raise
the issue after defense witnesses presented proof supporting the theory of self-defense.
Post-conviction counsel noted that on appeal, trial counsel complained that the trial court
erred by not allowing him to use the victim‟s prior convictions as character evidence
pursuant to Rule 404; however, this court deemed the issue waived because it was not
raised by trial counsel at the appropriate time. Post-conviction counsel asserted that the
character evidence would have corroborated the petitioner‟s claim that the victim was a
drug dealer who carried a gun and that the victim was the first aggressor.
The State responded that the proof at trial reflected that Davis and Street had been
intimidated by the petitioner or the petitioner‟s family into saying that the victim had a
gun. The State contended that the proof adduced at trial was inconsistent with the
petitioner‟s claim of self-defense. The State said that even if trial counsel
had asked for a 404(b) hearing the Court would have
disallowed evidence of those pending charges anyway since
1
The record reveals that, in fact, the issue was raised when the State made a motion in limine to prevent trial
counsel from revealing the victim‟s criminal history prior to the issue of self-defense being raised.
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the jury knew that Trey Sherman was a drug dealer, that he
hit women, and that he carried guns and was essentially not
an upstanding citizen.
The post-conviction court found:
[T]he state argues that the state itself disclosed the [victim‟s
criminal] history to the jury in the beginning of the case, and
disclosed the fact that the victim was a drug dealer and that
drugs had been found on his body. The jury also heard from
witnesses that a dispute arose between a female relation of the
[petitioner] and the victim at an earlier time, which is why the
[petitioner] went armed to the place the victim was staying,
says how he saw the victim go for a gun and shot him.
Although no gun was found on the victim (it is also a
contention that someone got rid of the gun which was denied
by witnesses, although witnesses did not deny that drugs were
removed from the [victim‟s] body.) Additionally, proof
showed that the victim did not argue with or attempt to
approach the [petitioner] who was calm and the [petitioner]
pulled his gun and gave chase as the victim was running
away. The victim was shot in the back, multiple shots were
fired where many people were assembled including children,
and the [petitioner] subsequently fled and hid the weapon.
The jury was given all this information and a self-
defense charge and the [petitioner] received a lesser included
conviction of second degree murder from them. There is
nothing to show that the standard[s for effective
representation] were violated or in anyway inhibited the
[petitioner‟s] right to a fair trial. Counsel was clearly an
effective attorney in this case.
On appeal, the petitioner challenges this ruling.
II. Analysis
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To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. ' 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause a petitioner must establish both prongs of the test, a
failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in
any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
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The petitioner alleges that trial counsel should have pursued the admission of the
victim‟s prior criminal arrests to corroborate his claim that the victim carried a gun and
was the first aggressor. As this court noted on direct appeal:
Generally, “[e]vidence of a person‟s character or a trait
of character is not admissible for the purpose of proving
action in conformity with the character or trait on a particular
occasion.” Tenn. R. Evid. 404(a); see also Tenn. R. Evid.
404(b). Nevertheless, if a defendant raises a claim of self-
defense, then Tennessee Rule of Evidence 404(a)(2) “permits
the defendant to offer proof of the victim‟s „pertinent‟
character for violent behavior to help establish that the victim
was the aggressor.” Neil P. Cohen et al. Tennessee Law of
Evidence ' 4.04[5][c] (LEXIS publishing, 6th ed. 2011).
However, pursuant to Tennessee Rule of Evidence 405(a),
this substantive evidence may be established only by
reputation or opinion and specific acts may be inquired into
only on cross-examination. Id. Evidence of the victim‟s
character, when used solely to corroborate the defendant‟s
claim that the victim was the first aggressor, may be admitted
during the direct testimony of a witness. See State v. Ruane,
912 S.W.2d 766, 779 (Tenn. Crim. App. 1995); State v. Hill,
885 S.W.2d 357, 361 n.1 (Tenn. Crim. App. 1994); State v.
Furlough, 797 S.W.2d 631, 649 (Tenn. Crim. App. 1990). . . .
McAfee, No. E2010-01730-CCA-R3-CD, 2013 WL 794330, at *1-7.
We note that in his brief, the petitioner argues that evidence of the victim‟s
“felony drug convictions . . . would have corroborated the defense contention that the
victim had a reputation as a violent, dangerous person, who may have reasonably been
seen as an imminent threat to the Petitioner at the time the incident occurred.” However,
the petitioner did not adduce proof at the post-conviction hearing, such as testimony by a
knowledgeable witness, a judgment of conviction, or an arrest warrant, which would have
revealed the exact nature of the victim‟s prior charges. Therefore, it is impossible for this
court to discern the relevance, if any, of this evidence. See Derek T. Payne v. State, No.
W2008-02784-CCA-R3-PC, 2010 WL 161493, at *14 (Tenn. Crim. App. at Jackson, Jan.
15, 2010); Michael Carlton Bailey v. State, No. M1999-01065-CCA-R3-PC, 2001 WL
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935336 at *2 (Tenn. Crim. App. at Nashville, Aug. 17, 2001); see also State v. Copenny,
888 S.W.2d 450, 454 (Tenn. Crim. App. 1993) (stating that a victim‟s prior convictions
and arrests for drug use were not relevant to whether the victim carried a gun).
Moreover, as the post-conviction court noted, the jury heard proof that the victim
was a drug dealer, that he often carried a weapon, and that he had violently assaulted a
woman earlier that day. In fact, the petitioner and two defense witnesses testified that the
victim was carrying a weapon on the night in question. The post-conviction court
concluded that the petitioner failed to prove that his counsel was deficient or that the
petitioner suffered prejudice as a result of any alleged deficiency. We can find no proof
in the record to preponderate against the post-conviction court‟s findings.
III. Conclusion
Finding no error, we affirm the judgment of the post-conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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