Jermaine Davis v. State of Tennessee ( 2020 )

05/29/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 7, 2020
JERMAINE DAVIS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 10-08139 Jennifer Johnson Mitchell, Judge
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No. W2019-00743-CCA-R3-PC
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Petitioner, Jermaine Davis, claims that he received ineffective assistance of counsel.
Following a hearing, the post-conviction court denied his petition for post-conviction
relief, finding that Petitioner failed to prove deficient performance and prejudice.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.
Anna R. Smith, Memphis, Tennessee, for the appellant, Jermaine Davis.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd and Paige
Munn, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Procedural Background
This case arises from allegations that Petitioner raped K.H. and C.T.,1 while armed
with two knives. A Shelby County jury convicted Petitioner of nine counts of aggravated
rape, and the trial court imposed an effective sentence of 75 years at 100% to serve in
confinement. In the direct appeal, this court affirmed the convictions and sentences, and
the Tennessee Supreme Court denied further review. State v. Jermaine Davis, No.
W2013-01123-CCA-R3-CD, 2014 WL 2902274, at *1 (Tenn. Crim. App. June 27, 2014),
perm. app. denied (Tenn. Oct. 20, 2014).
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1
This court protects the identity of victims of sexual offenses through the use of initials.
On direct appeal, this court recited the facts as follows:
Officer Brian Onan testified that he worked for the Memphis Police
Department and that he responded to a call in the early morning of April
17, 2010. He testified that the “type of call” he responded to was “a[n]
aggravated criminal assault where one victim was out of the home and one
victim was still inside the home with the suspect who was armed.” He
stated that he received the call around 2:30 a.m. and that he responded to
the location provided within two to five minutes after receiving the call.
Officer Onan testified that he and another officer, Officer Kevin
Frazier, arrived at the location where they found two white females
standing beside a Mitsubishi Gallant. He testified to the following:
[Officer Frazier and I] drove up. [The two women came]
directly to the window of the [police] car before we even had
a chance to get out and pointed to the direction of an alley, on
the backside . . . . Started explaining to us the situation. They
were talking to us both at one time where we had to slow
them down, very frantic, upset about what was going on.
[One woman] started telling me that she had already been
raped and had gotten out of the home and [we] had to figure
out why the other [woman] was there. She was a friend that
had been called by the other [woman], came over there and
was telling me that her other friend was still in the home with
the armed suspect.
Officer Onan testified that he later identified the woman who came
to his car window and said she had been raped as K.H. He stated that when
he arrived, K.H. “obviously had been crying, eyes blurry[,]” and that she
was talking fast, very upset, and that she was “excited.” Officer Onan said
the second woman was named “Lacey,” and she too was “excited” and
upset about the friend who was still inside the home.
Officer Onan testified that K.H. told him that the friend still inside
the home was named “Cassandra.” At that point the officer began to walk
down the alleyway where the women indicated the home was located.
Before he could reach the home identified by K.H., the second victim, C.T.,
came out of the home. Officer Onan stated that she was crying and saying
that she had been assaulted or raped, and he stated that she was carrying her
“panties.” He stated that she was extremely upset and crying “nonstop the
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whole time.” Officer Onan testified that he and Officer Frazier walked
K.H., C.T., and “Lacey” back to his police car as other squad cars started to
arrive at the scene. During the walk to his police car, C.T. said she had
been “assaulted at knife point” but did not go into more detail at that
moment. He stated that the victims named [Petitioner] as the person who
had assaulted and raped them.
Officer Onan testified that, once backup had arrived at the scene and
the victims were safe, he and Officer Frazier returned to the residence from
which the second victim had exited. Other officers surrounded the home
and started announcing a police presence while knocking on the doors and
windows. Officer Onan testified that, at some point, the owners of the
home had been called, and they arrived at the scene and provided officers
with a key to enter the home. He stated that no less than eight officers
entered the home with their weapons drawn and yelling “Memphis Police.”
Once inside, the officers checked and “cleared” each room, until they found
one man in the master bedroom. The man was in a bed, under the covers,
and pretended to be asleep when the officers approached him. Officer
Onan identified [Petitioner] in the courtroom as the man they found inside
the home.
Officer Onan stated that the officers got [Petitioner] out of the bed,
handcuffed him, and walked him out of the house, where he was detained
in a police car. Officer Onan recalled that he then interviewed the two
victims who were still crying and upset. The victims were transported to
the Memphis Rape Crisis Center.
On cross-examination, Officer Onan testified that, when he found
[Petitioner] in the bed inside the house, [Petitioner] did not say anything but
appeared coherent.
K.H. testified that in April 2010 she was working at Circle K. She
stated that she had met C.T. through a friend named Lacey. K.H. stated
that she “knew of” [Petitioner], whom she identified in court, because he
had come to the Circle K a couple of times with Lacey. She recalled that,
on the night of April 16, 2010, while she was at Circle K, Lacey and
[Petitioner] called her cellular telephone to ask her to give [Petitioner] a
ride to “Sycamore View.” She stated that [Petitioner] was going to give her
fifteen dollars[’] worth of gas money in exchange for a ride.
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K.H. testified that she and C.T. had plans to “chill” that night, and
C.T. arrived at Circle K soon after [Petitioner] requested a ride from K.H.
K.H. testified that she asked C.T., who also knew [Petitioner] through
Lacey, if she wanted to ride with her to take [Petitioner] to Sycamore View.
K.H. testified that she and C.T. left Circle K to pick up [Petitioner]
at his mother’s house, and they found him standing outside on a corner near
his mother’s house when they arrived. She testified that she was driving a
Mitsubishi Gallant, with C.T. in the passenger seat, and [Petitioner] got in
the backseat. On the way to Sycamore View, [Petitioner] told the two
victims that he needed to go to Waffle House instead of Sycamore View,
and the victims agreed to take him there. At Waffle House, [Petitioner] got
out of the car and said he was meeting up with someone there. He told the
victims he would be back with the fifteen dollars for gas money, but the
victims did not wait in the car very long for [Petitioner] to come back.
K.H. said when they realized he was not coming back, she and C.T. drove
away in the direction of C.T.’s home.
K.H. testified that [Petitioner] called her back on her cellular
telephone and asked the victims to meet him at a gas station across the
street from the Waffle House, so they turned the car around to meet him, in
the hopes of getting the fifteen dollars he owed to K.H. At the gas station,
the victims waited for [Petitioner] and called his cellular telephone. When
he did not meet them or answer his telephone, the victim[s] decided to
leave and “not worry” about the fifteen dollars. After they drove away
from the gas station, [Petitioner] called again and told the victims to meet
him at a home in C.T.’s neighborhood. The home was “right on the way”
to where C.T. lived, so they agreed to meet [Petitioner] there. K.H. stated
that [Petitioner] said he would give her the fifteen dollars.
K.H. testified that, once she and C.T. arrived at the home,
[Petitioner] told them that they could “come in to chill, [and] chat,” which
they did. [Petitioner] said the fifteen dollars was inside the home. Once
inside, K.H. and C.T. stood in the kitchen, while [Petitioner] left the room.
At that point, the two victims noticed, based on the items taped to the
refrigerator, that it was not [Petitioner]’s home, and they became
uncomfortable. When [Petitioner] returned to the kitchen, he told the
victims that they could go into the bedroom and sit down, and they did so.
[Petitioner] then left the bedroom for a “couple” minutes and when he
returned he asked the victims if they wanted to make $100 and watch him
masturbate. K.H. testified that, at this point, she knew that she and C.T.
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should leave. They responded “no” to [Petitioner]’s request and “started
heading for the door.” [Petitioner] was in front of the victims, and he
suddenly turned around and “had knives in his hand.” K.H. agreed that
[Petitioner] seemed “aggressive,” and she was frightened. She stated that
the victims followed [Petitioner]’s instructions so they would not get hurt.
K.H. testified that [Petitioner], while still holding the knives, told the
victims to remove their shirts. He then instructed K.H. to kiss him and C.T.
to perform oral sex on him. She agreed that she saw [Petitioner] put his
penis in C.T.’s mouth. The two victims and [Petitioner] went into the
bedroom, and K.H. sat in a chair. [Petitioner] told K.H. to remove her
clothes, which she did. [Petitioner], with the knives in his hand, told K.H.
to get on the bed and perform oral sex on him. K.H. stated that he forced
her to put his penis in her mouth. K.H. recalled that she “felt like [she]
knew what was coming[,]” and so she asked [Petitioner] to use a condom
for protection, to which he replied “No.” K.H. said “something” in
response, causing [Petitioner] to slap her “hard” across the face. The slap
caused her ears to start ringing and her glasses to fly off her face and onto
the floor. She recalled that the lights in the bedroom were on.
K.H. testified that, after [Petitioner] slapped her, he told C.T. to get
on the bed and perform oral sex on him. K.H. did not know whether C.T.
actually did because she looked away. [Petitioner] then told both victims to
“get on all fours on the bed[ ][and] stick [their] butts out.” They complied,
and then, while both women faced the wall and [Petitioner] stood behind
them, he penetrated K.H. vaginally and anally with his penis. K.H. did not
know if he did the same to C.T. [Petitioner] then told C.T. to lay on the bed
and told K.H. to perform oral sex on her. C.T. “laid back [on the bed] with
her knees up” and K.H. laid down in between C.T.’s legs with [Petitioner]
behind K.H. While he was behind her, [Petitioner] again penetrated K.H.
vaginally and anally and told her to “eat [ ] out” C.T. K.H. stated that she
laid her head on C.T.’s stomach to give [Petitioner] the “impression” that
she was performing oral sex on C.T. K.H. stated that, while she could not
see what [Petitioner] was doing behind her nor could she see the knives, she
could feel what he was doing and “something metal” in her back, which she
assumed were the knives. [Petitioner] then told the victims to “switch
around” with K.H. on her back on the bed and C.T. laying on top of her.
K.H. closed her eyes and did not see whether [Petitioner] penetrated C.T.
K.H. testified that she asked [Petitioner] if she could go get some
“weed” from her car. K.H. stated that she did not, in fact, have any “weed”
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in her car but that she thought the idea might appeal to [Petitioner] because
he had earlier smoked a pipe, which she assumed contained drugs. K.H.
stated that she was never in a position to get to her cellular telephone safely
in order to make a call for help and that she feared she would die if she tried
to get her telephone. K.H. stated that [Petitioner] agreed to let her get
marijuana from her car but would not allow C.T. to leave. He escorted
K.H. to the door and let her out of the home. K.H. stated that “as soon as
[she] got in [her] car [she] turned that engine and [she] was gone.” K.H.
then called 911 and Lacey, because K.H. knew she was close by. Lacey
arrived first and then the police, and K.H. told them she had been raped.
K.H. stated that when the police arrived they wanted to know where
the home was, so K.H. took the officers to look for the home down an
alleyway. They found C.T. walking down the alleyway. K.H. described
C.T. as being “a mess” and carrying K.H.’s shoes and underwear with tears
“falling out of her eyes.” K.H. stated that, twenty to thirty minutes later,
[Petitioner] was brought out of the home.
K.H. testified that she left the scene with the police and went to the
sexual assault center where a rape kit was performed. She then went to the
police precinct to give a statement. K.H. recalled that she signed her
statement on April 17 at 3 p.m.
K.H. recalled that [Petitioner] ejaculated in her mouth but did not
know if he had ejaculated in her vagina or anywhere else.
A recording of K.H.’s call to 911 was entered into the record as
evidence and played for the jury. On the recording, K.H. can be heard
crying hysterically, telling the dispatcher that [Petitioner] lured her and
C.T. into a residence and forced them to undress and “do stuff.” She is
sobbing as she tells the dispatcher that C.T. is still inside the house with
[Petitioner], who is using kitchen knives as weapons and that she fears C.T.
is going to get hurt.
On cross-examination, K.H. reiterated that [Petitioner] was smoking
from a “pipe,” but she did not recognize the smell and stated that it was not
marijuana. She recalled seeing him smoke the pipe one time while he and
the two victims were in the bedroom. She agreed that he took a short “pull”
from the pipe, lasting one or two seconds. K.H. agreed that both she and
C.T. “faked” performing oral sex on each other.
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K.H. clarified that [Petitioner] made C.T. perform oral sex on him in
the hallway, and made K.H. perform oral sex on him in the bedroom. She
agreed that both victims put their hands and knees on top of the bed when
[Petitioner] made them get “on all fours.” K .H. stated that [Petitioner]
took his clothes off at some point, but she did not see him do so.
C.T. testified that she was nineteen years old on the night of April
16, 2010, and that she was working at Comprehensive Pharmacy Services
at the time. She testified that she met K.H. at a gas station through her
friend Lacey in 2009 and that she had met [Petitioner] once through Lacey.
C.T. stated that on April 16 she went on a date at TGI Fridays, and her date
dropped her off at Circle K to meet K.H. after dinner. C.T. recalled that
K.H. had asked her to meet at Circle K to give [Petitioner] a ride and “drop
him off somewhere for gas money.” C.T. clarified that her date was
originally going to drop her off at home, but her plans changed when K.H.
asked her to meet.
C.T. testified that, once she arrived at Circle K, she, her date, and
K.H. talked in the parking lot for ten minutes and then she left with K.H. to
pick up [Petitioner]. She was “pretty sure [they] were supposed to pick
[Petitioner] up from his house,” but instead they picked him up on the
corner. C.T. agreed that K.H. was driving, she was in the passenger’s seat,
and [Petitioner] was in the backseat. C.T. identified [Petitioner] in the
courtroom as the man they picked up.
C.T. testified that they drove [Petitioner] to Waffle House where he
got out. The victims waited in the parking lot for [Petitioner] to come back
out, but, when he did not, they drove away. C.T. agreed that she discussed
with K.H. whether [Petitioner] would pay the money he had promised.
After driving away, K.H. called [Petitioner] about her money, and he told
the victims to meet him at a gas station. When he failed to show up at the
gas station, the victims again drove away to go to C.T.’s home. [Petitioner]
called K.H. back and said he had “made it to the house [where] he had left
his wallet[.]” C.T. recalled that the home was on Barbie Street, and,
because it was on the way to her home, the victims decided to meet
[Petitioner] there to get the money he owed K.H.
C.T. stated that the victims had trouble finding the home and drove
down an alleyway where they found [Petitioner]. He directed them to the
home and said the money was inside. C.T. said [Petitioner] invited them
inside and they did not think “anything weird” about his invitation. C.T.
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recalled that they went inside to the kitchen through a door in the garage,
and [Petitioner] offered them two chairs at the back of the home. She
recalled that [Petitioner] then came in the room and offered the victims one
hundred dollars to watch him masturbate, and C.T. said, “I think it’s time to
go.” As the victims walked toward the door, [Petitioner] got in front of
them and grabbed two knives out of the kitchen. She described the knives
as “long with a black handle.” While the victim[s] stood in the hallway,
[Petitioner] continued to hold the knives and told them to remove their
shirts. C.T. said she could not see a way to escape and that she did not try
to run out of the home because she was scared.
C.T. testified that, after [Petitioner] ordered the victims to remove
their shirts, he told K.H. to kiss him and told C.T. to perform oral sex on
him while the three were in the hallway. C.T. stated that she got on her
knees and performed oral sex on [Petitioner] and that his penis went inside
her mouth. With the knives still in his hand, [Petitioner] then took the
victims to a bedroom. She recalled that K.H. went into the bedroom first
and sat on the bed, and C.T. sat in a chair. C.T. tried to pull two cellular
telephones out of her pockets to make a call for help, but “before [she] had
gotten a chance, [Petitioner] had paid attention to [her] and was telling [her]
to take [her] clothes off,” so she dropped the telephones to the floor.
[Petitioner] took both telephones after she dropped them, and she did not
regain access to her telephones after that. C.T. recalled that, when
[Petitioner] told her to take her clothes off, K.H. was performing oral sex
on [Petitioner] on the bed. C.T. said she heard [Petitioner] “smack [K.H.]
across the face,” so C.T. looked up and saw that K.H.’s glasses had flown
off her face. C.T. recalled that the lights in the bedroom were on.
C.T. recalled that, after [Petitioner] smacked K.H., he told C.T. to
take off her clothes and get on the bed. [Petitioner] held both knives in his
hand and ordered C.T. to perform oral sex on him. He then ordered C.T. to
perform oral sex on K.H. while he penetrated C.T. both vaginally and
anally. While [Petitioner] was raping her from behind, C.T. could feel the
handle of the knives on her. C.T. recalled that [Petitioner] made the victims
“swap” positions, with K.H. performing oral sex on C.T., and [Petitioner]
raping K.H. from behind. C.T. recalled that K.H. asked to get a condom,
and [Petitioner] said, “No,” but at some point he let “someone” go to the
car. C.T. said that K.H. went to the car because, C.T. assumed, K.H. still
had her telephone. C.T. recalled that K.H. asked to go to the car multiple
times and “probably by the second or third time” [Petitioner] allowed her to
go.
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C.T. testified that [Petitioner] escorted K.H. out of the house and
locked the door behind her as she left. [Petitioner] returned to the bedroom
and told C.T. that K.H. was gone and that he had locked the door. She
recalled that he still had the knives with him. After K.H. left, C.T.
observed [Petitioner] smoking out of a pipe, shaped like a tube. She
testified that he turned the bedroom lights off, but she could still see. C.T.
asked [Petitioner] if she could use the bathroom down the hallway.
[Petitioner] followed her into the bathroom and forced C.T. to perform oral
sex on him while she sat on the toilet. They went out into the hallway after
she used the bathroom, and [Petitioner] forced her to bend over and started
penetrating her vaginally. The victim recalled that [Petitioner] said that if
she “wasn’t going to do it right, he was going to put five fingers inside of
[her].” C.T. stated that they went back into the bedroom, and [Petitioner]
“had [her] bend over and he put his whole fist inside of [her].” C.T.
described that as the “worst pain of the whole evening.” She also stated
that he again penetrated her vaginally with his penis.
C.T. testified that, when [Petitioner] put his fist inside of her vagina,
she “straightened up and turn[ed] around like what are you doing[?],” and
[Petitioner] said he would hit her “like he hit [K.H.]” if she did not stop.
C.T. said [Petitioner] again penetrated her anally after he put his fist inside
of her vagina. [Petitioner] also made her perform oral sex on him again,
and he pulled her hair while she did so. C.T. said [Petitioner] was having
trouble getting an erection. She recalled that he was still holding the knives
when he told C.T. that he would hit her. She said he also put one of the
knives against her arm.
C.T. testified that she asked [Petitioner] if she could leave to get
cleaned up, because she was menstruating, and she would return later. She
said that at some point [Petitioner] started dressing, so she did the same.
[Petitioner] returned her cellular telephones to her, and then he let her out
of the house through the garage. When [Petitioner] opened the garage door
for C.T. to “bend under” she saw police outside the home. C.T. exited the
garage into the alleyway, saw a light, and started crying because she was
“scared,” “hurting,” and “happy to be out.” Walking down the alleyway
toward the light, C.T. saw Lacey, K.H., and a police officer. She was
“hysterical[ly] bawling” and in pain from when [Petitioner] put his fist
inside her.
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C.T. stated that she left the scene and went to the rape crisis center
before giving a statement to police. She recalled being in the back of the
police car when [Petitioner] was brought out of the home by the police.
Officer Kevin Frazier testified that he worked for the Memphis
Police Department and was with his partner, Officer Onan, on April 17,
2010. He testified that they responded to a criminal assault call at 2:30 a.m.
He stated that it took he and Officer Onan about fifteen minutes to respond
to the location. Once they arrived, they were approached by a “frantic”
woman who was crying. The woman alleged that she had been raped and
her friend was still inside the house being raped as well. He stated that the
woman showed them where the house was, but, before they could walk to
it, the other friend approached them, also in a frantic state. Officer Frazier
stated that they put both women in the squad car and other officers arrived
at the scene to help secure the location.
Officer Frazier testified that police officers began beating on the
doors and windows of the home where the women indicated the perpetrator
was located. He stated that eventually the homeowner arrived to allow
officers inside, and an officer brought out an individual from inside.
Sergeant Gerald Paige testified that he worked for the Memphis
Police Department and was called to the scene on April 17, 2010, to collect
evidence of the crime. He stated that the victims had left the scene when he
arrived. He stated that he was taken inside to the back bedroom of the
house where the assault had taken place. Sergeant Paige stated that he also
searched the rest of the home. He stated that he found two knives on the
table in the kitchen. In the bedroom, which he described as being in
“disarray,” Sergeant Frazier found a mattress on the floor with black satin
sheets on it. He stated that he used an “alternative light source” to reveal
stains on the sheets not visible to the naked eye. He testified that the
alternative light source revealed stains on the sheets and the floor, and he
did a DNA sample on those stains. He stated that he cut out a piece of
carpet from the floor where the stains were and catalogued it into evidence
in addition to the bed sheet.
On cross-examination, Sergeant Paige stated that he could not tell if
the stains were recent.
Thomas Shouse testified that he was a criminal investigator with the
District Attorney General’s office and that he took a DNA sample from
[Petitioner] in the course of his investigation related to this case. He stated
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that the sample was taken from [Petitioner] on September 21, 2011, sealed
and sent to the Tennessee Bureau of Investigation (“TBI”) lab for analysis.
Mr. Shouse stated that he took [Petitioner]’s DNA sample, along with the
rape kits from the two victims, to the TBI.
Jean Listion testified that she and her husband owned the home
where the rapes took place and that they had bought it for their grandson.
She testified that she visited the home every day and had been there on
April 16. She stated that she had never heard of or met [Petitioner] before
the night of the crime. She stated that in the early morning hours of April
17, she and her husband got a call from the police department telling them
that there was a situation at their grandson’s home. Ms. Listion stated that
she gave the officers a key to the home, and then officers l[ed] a man out of
the house. She stated that her grandson was not at his home that night.
Margaret McCallum testified that she was a nurse at the Rape Crisis
Center where the two victims were taken on the morning of April 17, 2010.
Ms. McCallum was qualified, based on her training and experience, as an
expert in the field of forensic nursing. She stated that she conducted a
physical examination and performed a rape kit on C.T. at 7:30 a.m. on
April 17, 2010, and K.H. at 10:50 a.m. on April 17, 2010.
James Lawrence testified that he was a TBI Special Agent Forensic
Scientist. He was qualified as an expert in the fields of serology and DNA
forensic analysis. Mr. Lawrence testified that he analyzed the rape kits
performed on the victims and the DNA sample taken from [Petitioner]. His
findings were contained in a report dated June 11, 2010, which was
admitted into evidence. Mr. Lawrence testified that the vaginal swab taken
from C.T. matched [Petitioner]’s DNA sample. He testified that the vaginal
swab taken from K.H. was “consistent” with [Petitioner]’s DNA sample.
Mr. Lawrence clarified that both victims’ vaginal swabs contained matches
with [Petitioner]’s DNA, each to a different extent.
Jermaine Davis, 2014 WL 2902274, at *1-9.
Post-Conviction Relief Petition
Petitioner filed a timely pro se petition for post-conviction relief, and the post-
conviction court appointed counsel, who filed an amended petition. In his pro se petition,
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Petitioner claimed that he received ineffective assistance of counsel because trial counsel
failed:
(1) to seek a mental evaluation,
(2) to file any pretrial motions on defensive issues,
(3) to adequately investigate the victims,
(4) to call [P]etitioner’s witnesses,
(5) to obtain a private investigator in this case, and
(6) to properly communicate and explain the formal plea offer from the State.
In the amended petition, Petitioner claimed that trial counsel was ineffective for
failing:
(1) to take rudimentary steps to investigate his case,
(2) to effectively cross[-]examine witnesses, including the victims,
(3) to preserve the record on appeal related to multiple evidentiary arguments,
(4) to put forward any proof to deny the State’s case,
(5) to make more than a perfunctory opening or closing argument, and
(6) failing to zealously or effectively advocate for Petitioner’s innocence.
December 13, 2018 Evidentiary Hearing
Petitioner’s father testified that he worked for the Catholic Diocese as Director of
Prison Ministries. He hired trial counsel to represent Petitioner. He said that he talked to
his son about hiring an investigator, but that trial counsel never asked for one. He said
that he did not know the victims but that he had seen them in front of his house on at least
two occasions. He said that he had never seen Petitioner “be violent” or “act aggressively
toward other people.” On cross-examination, Petitioner’s father agreed that Petitioner
had been convicted more than once of drug-related offenses.
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Petitioner testified that he received a call from trial counsel seeking to represent
him. Petitioner said that he did not know trial counsel before the call. He said that trial
counsel represented him in general sessions court where he waived a preliminary hearing.
After his appearance in general sessions court, his father paid another attorney to
represent him, but that attorney “never answered the phone [and] never came and
checked on [him]at the jail.” Petitioner said that the other attorney did “absolutely
nothing to defend [him],” so he “rehired” trial counsel to represent him in criminal court.
He said that trial counsel was successful in getting his bond lowered but that he was still
unable to make bond.
Petitioner said that trial counsel advised him that the State had agreed to a twenty-
year sentence if he pled guilty. He said that trial counsel told him the most he could get if
convicted was twenty-five years, so he turned down the plea offer thinking that he had
little to risk by having a trial. He said that, if he had known he was facing “two hundred
and twenty-five years,” he would have accepted the plea offer.
Petitioner said that he tried to speak to trial counsel by phone but was told they
should not talk about the case on the phone. He said that, during the three years he was
incarcerated, trial counsel only came to visit him two or three times. He said that one of
the times was “right before [his] trial.” He said that the only other times he saw trial
counsel was when they were in court. He said that he asked trial counsel about hiring an
expert witness and told trial counsel that, if he found a private investigator, his father
“would hire him.” Petitioner said that trial counsel never got his cell phone records “to
try to determine whether or not [he] had communicated with the victims prior to the day
of the [] alleged attack.” He said that he did not know what happened to his cell phone
after it was taken from him when he was arrested. He said that the phone contained text
messages with the victims about meeting at Incredible Pizza. He claimed that the victims
called him and asked to come to the house where he was staying and that was how they
ended up meeting that night. He said that trial counsel advised him that, if he testified the
State could bring up his criminal convictions, which included an aggravated burglary, a
felony theft, and a felony marijuana offense, so he decided not to testify. He said that
while he was incarcerated awaiting trial, he was on a lot of “psychiatric medications” for
bipolar and manic-depressive disorder. He said that he asked trial counsel to have him
examined by a psychiatrist.
On cross-examination, Petitioner admitted that the drug conviction involved a plea
of guilty in Texas to possession of fifty pounds of marijuana and that the theft conviction
was for property valued over $10,000.00. He also admitted that he pled guilty in Texas
to domestic violence involving his girlfriend but claimed that he “never put [his] hands
on any woman.” He also admitted that he was convicted of aggravated burglary and
sentenced to three years’ incarceration. When questioned about DNA evidence,
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Petitioner claimed that he “didn’t ask [trial counsel] to have no DNA done.” He admitted
that he told trial counsel “they shouldn’t find any of my DNA on no women because we
was having our fun.” Petitioner then admitted that, after the DNA tests were performed,
his DNA was found on both victims.
Petitioner said that he wanted trial counsel to have the victims tested for drugs,
stating:
We was having fun. It was drugs there and everything. They was doing
cocaine. I was doing cocaine. The only thing they wasn’t doing [was]
smoking crack. And that’s what I was doing in the privacy of the
bathroom. But they was snorting cocaine. They was popping Lortabs and
Xanaxes. We was all getting high in the house; okay?
And that’s when I asked [trial counsel] to have them tested for drugs,
because if he had them tested for drugs, he’ll see that we was having a drug
party; okay? I offered them some money. But, like I said, I couldn’t even -
- I couldn’t perform sexually because I could never get on hard because of
all the drugs I had in my system, first thing.
Second thing is, as far as they talking about the garage door was
down, don’t no -- didn’t nobody -- didn’t nobody even pull the cameras
from the neighborhood to see that that -- that garage door was up the whole
entire time. But nobody ever tried that.
Trial counsel was called as a witness by Petitioner. Trial counsel testified that he
had been practicing criminal defense law for five years when he represented Petitioner.
Trial counsel said that he was contacted by someone about representing Petitioner and
was initially hired to handle the case at the general sessions level. He said that he advised
Petitioner concerning the pros and cons of a preliminary hearing and that Petitioner
decided he wanted to waive the hearing. Trial counsel said that he did not recall
Petitioner telling him anything about being on medications. He said that he did not hire
an investigator and did not recall the victims testifying that they did not know Petitioner
before the events that led to the aggravated rape charges. When presented with the
statement K.H. provided to the police, he agreed that K.H. said that Petitioner had come
to the gas station a couple of times and that she “knew of him” and that Petitioner had
called her. Trial counsel did not know how Petitioner got K.H.’s cell number. Trial
counsel agreed that he did not attempt to examine Petitioner’s or the victims’ cell phones.
Trial counsel was questioned extensively concerning photographs of two knives
that were introduced into evidence. He stated that he knew a third knife had been found
in the bathroom at the scene but had not been taken into evidence and that the victims had
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stated the Petitioner threatened them with two kitchen knives. Trial counsel agreed that
he did not object to the introduction of pictures of the knives into evidence and did not
“investigate the discreet meaning of each kind of knife.” When pressed about the knives,
trial counsel stated:
I don’t think the kind of knife would have made a difference unless it was
either -- it’s the difference between, say, a meat cleaver and a pen knife.
But then a bread knife, a butcher knife, a -- you know, a steak knife is a
little smaller. But they all kind of fit into kitchen knives.
Trial counsel was next asked about the testimony of the nurse practitioner that
examined the victims. The testimony included statements made by the victims. Trial
counsel agreed that he did not raise a hearsay objection. Trial counsel also agreed that he
did not object to the State’s closing argument, which post-conviction counsel
characterized as a “Golden Rule” argument where the jury was asked “to place
themselves in the minds of the victims.” Specifically, post-conviction counsel asked trial
counsel if he objected to the following statements made by the State during closing
argument: “[y]ou can feel the terror” and “as women, we could fight back.” Trial counsel
agreed that he did not object to these arguments. Trial counsel said that it had been five
years since the trial, and he could not remember if he made any objections during the
trial.
On cross-examination by the State, trial counsel agreed that the recording of the
victim’s 911 call “was awful to hear.” He agreed that, when he listened to the 911
recording, he “could hear the terror in her screams” about how she had been raped. Trial
counsel agreed that the terror in the 911 call was what the State was trying to convey
during its closing argument and said that he did not believe it would have been an
“appropriate objection.” Trial counsel also agreed that the State referred to the knives as
butcher knives and said that he did not find anything objectionable to that reference or to
the introduction of the photograph of the knives found at the scene. He said that the
victims testified they knew or “knew of” Petitioner through a mutual friend named Lacey.
He said that was consistent with what Petitioner had told him.
Trial counsel testified that, if he had thought that there had been a need for an
investigator, he would have suggested that they hire one. He said that he was concerned
about Petitioner testifying because of his prior convictions and that, ultimately, Petitioner
made the decision not to testify.
Trial counsel said that Petitioner did not tell him about any mental issues and that
he had no “concerns about [Petitioner’s] intellectual capacity.” Trial counsel said that he
did not seek to have Petitioner mentally evaluated because there was no “indication of
any problems.”
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Post-conviction counsel questioned trial counsel about his trial strategy. Trial
counsel testified that his initial trial strategy—to claim that someone other than Petitioner
raped the victims—was based on information provided by Petitioner. Trial counsel said
Petitioner told him that:
he was unable to perform and he was -- he always -- he repeatedly told me,
“[t]here is no way there is my semen in their vaginas.” He said that over
and over and over again. And that’s why I was determined to get the DNA
results, because if their DNA results showed that it was not him, that would
clearly exonerate him.
Trial counsel said that, when the DNA test results came back as a match to
Petitioner, he advised Petitioner to take the State’s twenty-year plea deal but that
Petitioner rejected his advice and the offer. Trial counsel said that he was forced to
abandon the original trial strategy and decided to argue that Petitioner had “consensual
sex with both [victims].”
Trial counsel stated that he never told Petitioner that, if he went to trial, the
maximum sentence Petitioner faced was twenty-five years. He said that he explained that
the trial court could run the sentences consecutively and that he told Petitioner, who was
thirty-five years old at the time of trial, that he could be looking at spending the rest of
his life in prison if convicted.
Post-Conviction Court’s Order
The post-conviction court denied the petition by an order filed on March 29, 2019.
Concerning trial counsel’s failure to object to “allegedly inflammatory statements”
during closing argument, the post-conviction court accredited trial counsel’s testimony
that he did not think it was advantageous to object. The court found that trial counsel
made a tactical decision not to object to the State’s arguments and that trial counsel
“often choose not to object to damaging evidence for strategic reasons so as to avoid
emphasizing the unfavorable evidence.” The court determined that Petitioner failed to
overcome the presumption that trial counsel acted according to sound trial strategy and
failed to prove that trial counsel’s failure to object prejudiced Petitioner’s trial.
The post-conviction court next addressed Petitioner’s claim that trial counsel
“acted deficiently when he failed to challenge a victim’s credibility during trial.”
Concerning not cross-examining the victims about knowing Petitioner before the rapes,
the court accredited trial counsel’s testimony that the victims were very credible and that
“badgering the victims was not going to be effective given [that] Petitioner admitted to
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being with them at the time of the alleged event.” The court noted that, “[b]ecause of the
traumatic nature of the case, it was [trial counsel’s] opinion that to challenge the
witnesses with questions about their relationship would appear disingenuous.” The court
determined that Petitioner failed to show that trial counsel “did not act according to sound
trial strategy on these grounds, and [that] the [first prong of the] Strickland test [was] not
satisfied.”
Concerning the claim that trial counsel “was ineffective because he failed to
adequately communicate the consequences of rejecting a plea agreement,” the post-
conviction court noted that trial counsel specifically testified that he explained to
Petitioner that some or all of the eleven counts of rape could be ordered to be served
consecutively and that, after the DNA test results, trial counsel advised Petitioner to
accept the plea deal. The court determined that Petitioner “failed to prove either
deficiency of performance or prejudice to the outcome of his case.”
Concerning Petitioner’s claim that trial counsel “generally did not offer enough
resistance to the State’s case because he did not hire a private investigator and did not
introduce character evidence to support Petitioner,” the post-conviction court noted that
“Petitioner told [trial counsel] during the trial proceedings that DNA evidence would
exonerate him; [c]ounsel planned his defense accordingly,” and that “[o]perating under
the false assumption that such evidence would be exonerating, [c]ounsel did not see it
necessary to hire a private investigator to further probe the case in the time before trial.”
The court accredited trial counsel’s testimony that he “did do some personal investigation
into the case before trial like checking out the victims’ Facebook pages to see if they had
mentioned the events from April 2010.” The court found that trial counsel’s “conduct
was reasonable under the circumstances.”
The post-conviction court accredited trial counsel’s testimony that “introduction of
[character] evidence would have been unsound trial strategy” in light of Petitioner’s
lengthy criminal history “because it would have allowed Petitioner’s own credibility to be
challenged.” The court found, “Because this was reasonable action or inaction by
[c]ounsel, and because there is no further evidence this conduct was deficient and
prejudiced Petitioner’s trial, Petitioner is not entitled to post-conviction relief on these
grounds.”
Following entry of the post-conviction court’s order denying relief, Petitioner
timely appealed.
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Analysis
On appeal, Petitioner argues that trial counsel was deficient for (1) failing to
move to exclude or object to damaging testimony and evidence, (2) failing to
meaningfully cross-examine the State’s witnesses, (3) failing to meaningfully investigate,
(4) failing to argue against the State’s closing argument, (5) and failing to have a trial
strategy. Petitioner also claims that the cumulative effect of trial counsel’s deficiencies
justifies post-conviction relief. The State argues that “trial counsel’s representation was
effective, and his decisions were based on a reasonable trial strategy.” The State also
argues that Petitioner failed to establish that any of trial counsel’s strategic decisions
prejudiced Petitioner. We agree with the State.
To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. Tenn. Code Ann. § 40-30-103
(2019); Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner
bears the burden of proving his or her allegations of fact by clear and convincing
evidence. Tenn. Code Ann. § 40-30-110(f) (2019); Dellinger v. State, 279 S.W.3d 282,
293-94 (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)).
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. When a claim of ineffective assistance of counsel is made, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy either prong results
in the denial of relief. Strickland, 466 U.S. at 697. Accordingly, if we determine that
either factor is not satisfied, there is no need to consider the other factor. Finch v. State,
226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886
(Tenn. 2004)). Additionally, review of counsel’s performance “requires that every effort
be made to 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; see also Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). We will not second-guess a reasonable trial strategy, and we will not grant
relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v.
State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).
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The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing 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” of the trial. Id. The stronger the
proof of guilt presented at trial, the more difficult it is to prove the prejudice prong of
Strickland. When proof of guilt is overwhelming, proving prejudice is exceedingly
difficult. See Proctor v. State, 868 S.W.2d 669, 673 (Tenn. Crim. App. 1992); Randy
Bray v. State, No. M2011-00665-CCA-R3-PC, 2012 WL 1895948, at *6 (Tenn. Crim.
App. May 23, 2012) (finding that, in light of overwhelming evidence, petitioner could not
demonstrate prejudice), perm. app. denied (Tenn. Sept. 19, 2012); Raymond E. McNeil v.
State, No. M2010-00671-CCA-R3-PC, 2011 WL 704452, at *6 (Tenn. Crim. App. Mar.
1, 2011) (finding that overwhelming evidence of guilt precluded showing of prejudice
from admission of item of evidence at trial).
(1) Failing to Seek to Exclude or Object to Damaging Testimony and Evidence
(a) Testimony of Officers Onan and Frazier
Petitioner claims that trial counsel failed to make an objection based on
“Crawford” to Officers Onan and Frazier reading testimonial statements of the victims
included in the officers’ reports before either victim testified at trial. Testimonial hearsay
is only admissible when the hearsay declarant is unavailable and the defendant had a
prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,
68 (2004). Two years after Crawford, the United States Supreme Court stated that “[a]
critical portion of [the Crawford] holding . . . is the phrase ‘testimonial statements.’”
Davis v. Washington, 547 U.S. 813, 821 (2006). In Davis, the police arrived within four
minutes of the 911 call and observed the victim in a “shaken state, [with] ‘fresh injuries
on her forearm and her face,’ and her ‘frantic efforts to gather her belongings and her
children so that they could leave the residence.’” Id. at 818 (quoting State v. Davis, 111
P.3d 844, 847 (Wash. 2005) (en banc)). In discussing what is and is not a testimonial
statement, the Supreme Court stated:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances
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objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
Id. at 822. The Court noted that the “difference between the interrogation in Davis and
the one in Crawford is apparent on the face of things. In Davis, [the victim] was
speaking about events as they were actually happening[.]” Id. at 827 (emphasis in
original).
Although Petitioner claims generally that the victims’ statements in the officers’
reports were inadmissible under Crawford, Petitioner failed to point out any specific
statements of the victims that he claims were testimonial. The officers obtained
information from K.H. at the scene of the rape while C.T. remained in the house with
Petitioner where the rapes occurred or were occurring. When C.T. managed to escape
from the house, Petitioner remained inside. As was the case in Davis, both K.H. and C.T.
were speaking to officers about events “as they were actually happening.” Id. Petitioner
has failed to prove trial counsel was deficient for failing to object.
The State points out that the victims testified later in the trial to substantially the
same information they provided to the police. Petitioner had ample opportunity to cross-
examine the victims at that time about any statements made to the police at the scene or
during the investigation. Assuming some of the statements of the victims in the report
may have been excluded if trial counsel had objected, Petitioner has still failed to show “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. We determine that
the post-conviction court properly found that Petitioner failed to show prejudice.
(b) Testimony of Nurse McCallum
Petitioner makes a similar Crawford claim about Ms. McCallum, the Rape Crisis
Center nurse who examined the victims. During Ms. McCallum’s testimony, she read the
“narrative history of the complaint” aloud to summarize the victims’ statements during
her examination. Again, Petitioner fails to cite any specific statements he claims were
testimonial and inadmissible. Both victims testified at trial and were subject to cross-
examination. Moreover, Petitioner has failed to prove that counsel’s failure to object
created a “reasonable probability . . . sufficient to undermine confidence in the outcome”
of the trial that the result would have been different. Id. Again, we determine that the
post-conviction court properly found that Petitioner failed to prove the prejudice prong of
Strickland.
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(c) Testimony of Homeowner
Petitioner claims that trial counsel was deficient in failing to object to the
testimony of the owner of the home where the rapes occurred that a stain on the carpet
“looked like dried semen.”2 Although this testimony may have been found inadmissible
if trial counsel had objected, in light of the proof that swabs done at the Rape Crisis
Center recovered Petitioner’s DNA from seminal fluid in the vaginal area of both victims,
we determine that Petitioner has not demonstrated that the homeowner’s statement
prejudiced Petitioner or undermined confidence in the jury’s verdict of guilt. Strickland,
466 U.S. at 694.
(d) Testimony Concerning “Butcher Knives” and Photograph of Two Knives
Petitioner claims that trial counsel’s representation was deficient because he failed
to object to the admission of a photograph of two “knives that did not match the victims’
descriptions of the knives” used during the crime and because he failed to object to the
State’s referring to “the knives as ‘butcher knives’ in opening and closing statements.” In
her 911 call, K.H. told the operator that C.T. was still inside the house and that Petitioner
was using “kitchen knives as weapons.” In his testimony at the post-conviction hearing,
trial counsel admitted that he did not object to the introduction of the photograph of the
two knives or to the State’s referring to the knives as butcher knives. Trial counsel
explained:
I don’t think the kind of knife would have made a difference unless it was
either -- it’s the difference between, say, a meat cleaver and a pen knife.
But then a bread knife, a butcher knife, a -- you know, a steak knife is a
little smaller. But they all kind of fit into kitchen knives.
Trial counsel explained that he did not object to the type of knife that Petitioner
allegedly used to threaten the victims because his trial strategy was to claim Petitioner
had consensual sex with the victims and that, if the jury believed Petitioner used any
knife, it would undermine his strategy.
Because the police failed to take into evidence a third knife found in the bathroom,
the State argued that it was not claiming the two knives in the photograph were the two
knives used in the rapes. Although an objection may have been warranted, we need not
decide whether trial counsel’s failure to object was deficient performance or a strategic
decision. Based on the overwhelming evidence of guilt, including the victims’ testimony
2
We take judicial notice of the trial transcript included in the record in the direct appeal.
Jermaine Davis, W2013-01123-CCA-R3-CD, 2014 WL 2902274, at *1.
- 21 -
that Petitioner was armed with two knives, the fact that Petitioner was still in the house
when police arrived, and the fact that knives were found in the house, we determine that
Petitioner has failed to show that trial counsel’s failure to object to the photograph of the
knives or failure to object to the State’s referring to the knives as “butcher knives”
prejudiced Petitioner or undermined confidence in the jury’s verdict of guilt. Id. Failure
to satisfy either Strickland prong results in the denial of relief. Id. at 697.
(2) Failing to Meaningfully Cross-examine the State’s Witnesses
Petitioner argues that trial counsel’s representation was deficient because he failed
to adequately cross-examine any witnesses. Because only the testimony of the victims
and Ms. McCallum, a nurse at the Rape Crisis Center, was developed at the post-
conviction hearing and discussed in Petitioner’s brief, we will limit our analysis to those
witnesses. Petitioner’s allegations regarding the cross-examination of any other
witnesses are waived for failure to cite to the record or supporting authorities. See Tenn.
Ct. Crim. App. R. 10(b).
Petitioner claims that trial counsel’s “cross-examination of the victims w[as]
limited to repeating where they were in the home, whether [P]etitioner was using drugs,
and repeating the details of the oral sex allegations.” However, that claim is not accurate.
The trial transcript from the direct appeal shows that, during the cross-examination of
K.H., trial counsel was able to get her to admit that Petitioner was not carrying any
knives when he went into the bedroom and lit his pipe. Concerning his cross-
examination of the victims, trial counsel explained that he thought the victims were very
credible witnesses, so he sought to “gently undermine [their] credibility” without
alienating the jury by badgering them.
Second, Petitioner claims that, during his cross-examination of Ms. McCallum,
trial counsel “minimally touched on the idea that the lack of injuries could mean that
there was force, [and] devolved into a series of apologies and confusion, with no attempt
to reign in the witness.” Again, the trial transcript shows that trial counsel was successful
in getting Ms. McCallum to state that during her examinations of the victims she found
no injuries in the victims’ vaginal and anal areas and to admit that it was possible that the
victims did not have any injuries because “there was no attack done[.]”
The post-conviction court found that trial counsel’s non-confrontational cross-
examination of the victims was sound trial strategy and that his cross-examination of Ms.
McCallum was not deficient. We will not second-guess a reasonable trial strategy, and
we will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision.
Granderson, 197 S.W.3d at 790 (Tenn. Crim. App. 2006). Concerning the general claim
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that trial counsel did not meaningfully cross-examine the State’s witnesses, we determine
that Petitioner failed to show deficient performance.
(3) Failing to Adequately Investigate
Petitioner claims that trial counsel failed to adequately investigate so that trial
counsel would be prepared for trial. Petitioner argues that trial counsel was deficient
because he failed to obtain cell phone records, failed to interview the residents in the
neighborhood and obtain security camera footage from nearby residences where the rape
occurred, and failed to investigate the victims’ drug use and prior relationship with
Petitioner.
Trial counsel has a duty to “conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at
933. In carrying out this duty, counsel must decide what investigation is needed and
what “investigations [are] unnecessary.” Strickland, 466 U.S. at 691. “In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id.
Petitioner claims that trial counsel was deficient for failing to obtain cell phone
records of the victims. However, the victims testified that they “knew of” or knew
Petitioner through a mutual friend, that they exchanged text messages with Petitioner, and
received phone calls from Petitioner. Petitioner has failed to show how trial counsel’s
failure to obtain cell phone records could have impeached the victims’ testimony or in
any way benefitted the defense.
Petitioner claims that trial counsel was deficient because he failed to interview the
residents in the neighborhood where the rape occurred and failed to obtain security
camera footage from nearby residences. Aside from a vague issue concerning whether
the garage door was open or closed when the rapes occurred, Petitioner has failed to show
how interviewing the neighbors or obtaining video footage, if same actually existed,
would have been of any benefit to the defense.
Petitioner claims that trial counsel was deficient for failing to obtain drug testing
of the victims. Petitioner has failed to explain how trial counsel could have obtained an
order forcing the victims to be tested for drugs, but even assuming that trial counsel could
have forced the victims to submit to testing at or near the date of the rape, that the test
came back positive, and that trial counsel was successful in getting the test introduced
into evidence or using the test to cross-examine the victims, it would not change the
overwhelming evidence of guilt presented at trial. Using drugs does not amount to
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consent to sex. Petitioner has failed to show trial counsel was deficient in not obtaining a
drug test of the victims or that he was prejudiced.
The post-conviction court found that trial counsel conducted an independent
investigation that “was reasonable under the circumstances.” We agree with the post-
conviction court’s findings and conclusion that Petitioner failed to prove by clear and
convincing evidence that trial counsel’s investigation was deficient.
(4) Failing to Argue Against the State’s Closing Argument
(a) Reasonable Doubt
Petitioner avers that trial counsel was deficient by failing to adequately argue
reasonable doubt. In light of the overwhelming evidence of guilt, Petitioner has failed to
show how an argument concerning reasonable doubt could have led to a different verdict.
Petitioner has failed to prove prejudice.
(b) “Golden Rule” Argument
Petitioner asserts that trial counsel rendered ineffective assistance by failing to
object to the State’s “Golden Rule” closing argument. Although the claim was not
specifically raised in the pro se petition or amended petition, the issue was argued to and
addressed by the post-conviction court, and the claim is included in the issues raised in
Petitioner’s brief. We will treat the claim as included under the general claim concerning
trial counsel’s failure to argue against the State’s closing argument. Trial counsel
testified that he chose not to object because he believed that the comment was an accurate
description of the evidence, that the statements did not ask the jury to put themselves in
the victims’ shoes, and because he did not want to draw the jury’s attention to the 911
call.
“[A]rgument of counsel is a valuable privilege that should not be unduly
restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Tennessee courts give
great latitude to counsel arguing their cases to the jury. Id. Closing arguments provide
each side an opportunity to “present their theory of the case and to point out the strengths
and weaknesses in the evidence to the jury.” State v. Banks, 271 S.W.3d 90, 130 (Tenn.
2008). “[P]rosecutors, no less than defense counsel, may use colorful and forceful
language in their closing arguments, as long as they do not stray from the evidence and
the reasonable inferences to be drawn from the evidence or make derogatory remarks or
appeal to the jurors’ prejudices.” Id. at 131 (internal citations omitted).
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During closing argument, the prosecutor told the jury regarding the 911 call:
“You can . . . not only hear the terror in [K.H.]’s voice, you can feel it. . . . You can feel
the terror.” In the rebuttal argument, the female prosecutor stated “as women, we like to
believe we would act differently” from the manner in which the victims acted, and “I
would like to believe I would.” In his brief, Petitioner refers to these statements as a
“Golden Rule” argument, which is an argument “suggesting to the jurors that they place
themselves in the position” of the victims. Esmail Ashdji and Faizeh Ashdji v. Rodney E.
Yardley, CA No. 1188, 1988 WL 116498, at *2 (Tenn. Ct. App. Nov. 4, 1988) (citation
omitted); State v. Randy Anthony Sanders, No. M2014-02535-CCA-R3-CD, 2015 WL
5461660, at *6 (Tenn. Crim. App. Sept. 18, 2015), perm. app. denied (Tenn. Jan. 19,
2016). Petitioner claims “that, in both instances, the State asked the jury to view
themselves in a manner that would place them into the mindset of the alleged victims.”
We do not agree with Petitioner’s characterization of the arguments, but even if
we did, trial counsel explained his reasons for not objecting to the closing arguments, and
just as the post-conviction court did, we decline to second-guess trial counsel’s strategic
decisions and tactical choices. Granderson, 197 S.W.3d at 790. We agree with the post-
conviction court’s finding that Petitioner failed to overcome the presumption that trial
counsel acted according to sound trial strategy and failed to prove that trial counsel’s
failure to object to the State’s closing arguments prejudiced Petitioner’s trial.
(5) Failure to Have a Trial Strategy
Petitioner claims that “when all of [trial counsel’s] actions in this case are taken
together, it becomes clear that there was no strategy for the trial at all.” Trial counsel
testified that his initial trial strategy was to argue that someone other than Petitioner raped
the victims. Trial counsel formulated this strategy based on what Petitioner told him—
that Petitioner’s DNA could not be found on the victims because he was incapable of
having an erection. After the TBI lab found Petitioner’s DNA in semen from vaginal
swabs of the victims, trial counsel was forced to abandon this trial strategy. When
Petitioner then declined to accept trial counsel’s advice concerning acceptance of the plea
offer, trial counsel was forced to come up with a new trial strategy—that the sexual acts
were consensual. We agree with the post-conviction court’s finding that Petitioner failed
to show that trial counsel “did not act according to sound trial strategy.” Petitioner has
failed to prove the deficient performance prong of Strickland.
The post-conviction court found that trial counsel conducted an independent
investigation that “was reasonable under the circumstances.” We agree with the post-
conviction court’s conclusion that Petitioner failed to prove by clear and convincing
evidence that trial counsel’s investigation was deficient.
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(6) Cumulative Effect of Alleged Deficiencies
Petitioner avers that the cumulative effect of deficient performance deprived
Petitioner of a meaningful defense and justifies a new trial. Although proof of one or
more examples of a trial counsel’s deficient performance, may not be sufficient, “the
cumulative effect” of such errors may be sufficient to “deprive the defendant of a
meaningful defense” and to justify post-conviction relief. State v. Zimmerman, 823
S.W.2d 220, 228 (Tenn. Crim. App. 1991).
When faced with overwhelming evidence against a defendant, trial counsel is
often limited in what trial strategy to employ and how to present a “meaningful defense.”
Id. The proof at trial against Petitioner was overwhelming, and Petitioner has failed to
show that he was “deprived of a meaningful defense” or that a new trial is justified. Id.
Petitioner has failed to prove any deficient performance on the part of trial counsel so
there can be no cumulative effect. Accordingly, Petitioner is not entitled to post-
conviction relief based on cumulative error.
Conclusion
We affirm the judgment of the post-conviction court.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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