Stephen Gerard Smith v. State of Tennessee

04/21/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2020
STEPHEN GERARD SMITH v. STATE OF TENNESSEE
Appeal from the Circuit Court for Franklin County
No. 20336 J. Curtis Smith, Judge
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No. M2020-00559-CCA-R3-PC
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The Petitioner, Stephen Gerard Smith, was convicted by a jury of aggravated assault,
attempted aggravated assault, and three counts of domestic assault for offenses
committed against his wife, and he received an effective twenty-five-year sentence. He
sought and was denied post-conviction relief based on numerous allegations of
ineffective assistance of counsel. On appeal, he alleges that he received ineffective
assistance when trial counsel: (1) gave deficient advice regarding a plea offer; (2) failed
to challenge a prospective juror; (3) argued in closing argument that the Petitioner was
guilty of the misdemeanor offenses; (4) failed to object to testimony referring to the
Petitioner’s prior incarceration; (5) failed to object to the prosecutor’s comment on the
victim’s credibility; (6) failed to call witnesses; and (7) failed to interview witnesses.
Because we conclude that the Petitioner has not established either deficiency or prejudice
for each claim, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.
Joseph E. Ford, Winchester, Tennessee, for the appellant, Stephen Gerard Smith.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Mike Taylor, District Attorney General; and Courtney Lynch,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Petitioner seeks post-conviction relief, asserting ineffective assistance of
counsel. We summarize the facts underlying the Petitioner’s convictions as they are
pertinent to his post-conviction claims.
Trial
The Petitioner was charged with three counts of aggravated assault by the use of a
deadly weapon against the victim, his wife, after he threatened her with a spindle,
threatened her with a hot skillet, and threatened her with a bow and arrow. He was
simultaneously charged with three counts of domestic assault against the victim for
hitting her, kicking her, and throwing a sippy cup at her, causing bruises. A fourth count
of domestic assault, in which the victim was the Petitioner’s two-year-old daughter, was
dismissed prior to trial. The State introduced proof that the Petitioner assaulted the
victim numerous times over the course of days. The Petitioner sought to show that the
victim had only reported the assault at the behest of her employer, that the victim had
delayed reporting, and that she had attempted to reconcile with the Petitioner.
At trial, the victim, who was employed at a salon, testified that she and the
Petitioner had gone to Nashville on March 25, 2012, in order to allow her to attend a
“hair show” for professional development. The victim and Petitioner met some
acquaintances in the elevator as they were leaving. On the return trip, the victim refused
to perform oral sex on the Petitioner as he drove, and he became irate, stopping the car
and ordering her out. The Petitioner opened the trunk and told her to get inside. As he
did so, a vehicle with the acquaintances whom they had seen in Nashville began to pull
over, and the Petitioner told the victim to get back in the car. The victim got in the
passenger’s seat, and the Petitioner drove home at 110 miles per hour, arguing with her.
Ms. Wanda Finney, a hairdresser, testified that she did not have a personal
relationship with either the victim or the Petitioner, and she confirmed that she had seen
the Petitioner and the victim on an elevator in Nashville, where the victim appeared to
have been crying. She then recognized their car with the trunk open on the side of the
road and began to pull over, but she assumed they were changing a tire and did not stop.
The Petitioner later passed Ms. Finney’s car, driving at an excessive speed. Ms. Jennifer
Ingle, who likewise did not have a personal relationship with either party, was riding with
Ms. Finney and also confirmed that she had seen the vehicle stopped on the road.
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The victim did not go to work the next day, Monday, but went to work on
Tuesday, March 27, 2012. Her last client of the day arrived late to his appointment, and
the Petitioner called her shortly before 5:00 p.m. to tell her that if she were not home in
ten minutes, “you know what it is.” The Petitioner began to assault the victim as soon as
she arrived home, spitting on her, grabbing her neck, and putting her face by the porch
rail. The victim got into the car with the Petitioner to pick up their child from her
mother’s home, but instead, the Petitioner began driving dangerously down “back roads,”
calling his friends to ask them what he should do about his “cheating wife” and
continually poking her in the side of her head.
The Petitioner ultimately drove her to the beauty salon where she worked. He
instructed her to enter the salon, make contact with no one, and to come to the car with
the metal spindle that held her receipts. Due to an inaccurate setting on the credit card
machine, her last receipt reflected a time of 3:44 p.m. instead of 4:44 p.m. The Petitioner
held the spindle to her neck and said, “I ought to kill you right here right now you lying
b*tch.” The victim was afraid he would follow through on his threat. He then jabbed the
spindle into the dashboard of the car. The State introduced a photograph of the hole left
by the spindle.
The Petitioner drove the victim to her mother’s house to pick up the couple’s
daughter. He did not allow her to get out of the car or talk to her mother but “tossed” the
child inside the vehicle. The victim’s mother confirmed that the Petitioner picked up the
child and testified that he told her that he was going to tie up the victim. The victim’s
mother believed this was a “joke.” When the Petitioner took the child to the car, the
victim’s mother saw the victim and inferred that something was wrong, but she thought
that the two had been arguing verbally and did not intervene.
At the home, the Petitioner forced the victim to cook in her underclothes. As the
victim was heating the skillet, the Petitioner kicked her in her right buttock, leaving a
bruise. He then picked up the hot skillet and held it to her face so that she could feel the
heat radiating off of it. He told her that no other man would love her and that if another
man did, “they’d have to look at a burnt face the rest of their life.” The victim was afraid.
The Petitioner briefly left, taking the victim’s car keys and cell phone. The victim
ate dinner with her daughter. The Petitioner returned, again accused the victim of being
unfaithful, and poked her in her forehead repeatedly, causing a bruise. The Petitioner
instructed the child to call the victim a vulgar name, and he poured beer on the victim.
The child left the room, and the Petitioner threw a sippy cup at the victim, resulting in a
bruise on her arm. The Petitioner then grabbed a bow and arrows and began hitting the
couch and coffee table with them. He threatened to “whoop” the victim with them, and
she was afraid. However, he did not use the bow and arrows to physically assault her.
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The Petitioner again accused the victim of being unfaithful, alleging that she was
involved with the client whose hair she had cut prior to leaving work. The Petitioner
called the victim’s client, who testified that he had no social relationship with the victim
and that the Petitioner called him and threatened to kill him sometime after midnight. At
the marital home, the Petitioner then pretended to be the client and simulated intercourse
with the victim, hitting her repeatedly on the hip with his fist and leaving a bruise.
The Petitioner left early in the morning with Mr. Shawn Pickett, who came to the
house. The Petitioner instructed the victim not to let anyone into the house or answer the
door. The victim slept all the next day. The victim’s mother came to see the victim, but
the victim said she was ill, and the victim’s mother never saw the victim’s face.
Ms. Heather Jones, who was the victim’s employer, came to the victim’s house on
the following day, Thursday. She testified that she intended to fire the victim because the
victim had missed two days of work and because she had had to call the Petitioner to
discover that the victim was sick. Eventually, the victim’s child answered the door and
ran out. When the victim came after her child, Ms. Jones could see “bruises all over her.”
Ms. Jones asked if the Petitioner was responsible and inferred from the victim’s response
that he was. She offered to help the victim and told the victim that the victim was
responsible for protecting her child from witnessing assault.
The victim testified that on Saturday, the victim and the Petitioner attended a
child’s birthday party with their daughter. The victim testified she was still bruised at the
time. Driving back, the Petitioner pulled in front of the police station, hit her in the back
of the head, and told her that she could scream and no one would help her. On Sunday,
the victim went to church and dinner with the Petitioner’s parents. On Monday, the
Petitioner left home and left the victim’s keys on the counter for her to use. The victim
went to the salon where she worked and there decided to flee her home. She returned
only to retrieve her daughter, who was in the care of the victim’s aunt, and a basket of
personal items. The Petitioner’s mother had arrived at the home, and she gave the victim
money. The Petitioner’s mother agreed that she had given the victim money and that she
saw a bruise on the victim’s arm at the time.
Ms. Jones confirmed that the victim came by the salon briefly and returned with
her child and some personal possessions. Ms. Jones offered to help the victim but made
her promise she was “serious” because Ms. Jones did not want to be “in the middle of this
back and forth.” The victim stayed with Ms. Jones for two days, and Ms. Jones took
photographs of the bruises on her forehead, arm, buttock, and hip. These photographs
were introduced at trial. She agreed that she called the police and that they came to her
home while the victim was there. Ms. Jones assisted the victim in leaving the county.
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She denied ever threatening to withhold her support if the victim refused to report the
charges, and she did not tell the victim to exaggerate the offenses. She also denied
threatening to call the Department of Children’s Services if the victim did not report the
assaults. She was not aware that the victim had attempted to reconcile with the
Petitioner, but she stated she would not have fired the victim if the victim had told her
about the attempted reconciliation.
The victim testified that Officer Curtis Francis and another officer came to Ms.
Jones’s house while the victim was staying there. The victim filed for an order of
protection on April 3, 2012. The victim filled out an affidavit as part of this form. In a
column labeled “weapons used,” she listed a sippy cup, beer can, magazine, and shoes.
She agreed did not mention the spindle, skillet, or bow and arrows but stated that she was
frightened the entire time that the Petitioner would see her car at the station and only
wrote down the things she could remember “without hesitation.” She filled out an
affidavit on April 24, 2012, prior to the hearing on the order of protection, and that
affidavit contained the details she had included in her trial testimony. The victim
acknowledged that she suffered no injury from the spindle, frying pan, or bow and
arrows.
The victim left town dressed as a man to avoid being recognized. She testified
that when she returned to town for the hearing on the order of protection, she parked at a
restaurant, and her vehicle was missing within a matter of minutes. Asked by trial
counsel if her car had been a gift from the Petitioner’s family, she replied, “Actually, I
want to say that I gave his mother, I think, they told me I could buy the car for $300, but
it was my, pretty much gift for graduating beauty school while he was incarcerated.”
Trial counsel did not object to this statement.
The victim and the Petitioner’s mother and father all testified that the victim had
attempted to reconcile with the Petitioner in the months preceding trial and that she had
parked her car at the Petitioner’s parents’ home during her visits to the Petitioner. Ms.
Karen James, who lived with the Petitioner’s uncle, also testified that the victim had
attempted to reconcile with the Petitioner and had hidden her car at the Petitioner’s
uncle’s home. According to Ms. James, the victim said that if Ms. Jones caught her with
the Petitioner, Ms. Jones would fire the victim and report her to “DHS.” The victim
denied having said to Ms. James that she invented the allegations because Ms. Jones
forced her to do so. She also denied stating to Mr. Justin Partin or Ms. Jennifer
Thompson that she was pressured by Ms. Jones to “come up with these things.”
Ms. Jenny Armstrong, a victim advocate at “Haven of Hope,” testified regarding
her observation of the civil hearing on the order of protection. Trial counsel objected to
her testimony, and after an offer of proof outside the presence of the jury, the trial court
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determined that her testimony was admissible as an admission against interest made by
the Petitioner. Ms. Armstrong testified that at the hearing, the Petitioner “was asked if he
assaulted [the victim], and he said yes” and “shook his head.” She agreed that the
allegations in the order did not include the use of a spindle, skillet, or bow and arrow.
The victim likewise testified at trial that, during the hearing on the order of protection,
the Petitioner “didn’t deny it, and the order of protection was granted.”
The jury convicted the Petitioner of aggravated assault for causing the victim to
reasonably fear imminent bodily injury by the use of the spindle. See T.C.A. § 39-13-
102(a)(1)(A)(iii). The Petitioner was convicted of the lesser included offenses of
attempted aggravated assault for causing the victim to reasonably fear imminent bodily
injury by the use of the skillet. See id.; T.C.A. § 39-12-101. He was acquitted of the
count of aggravated assault premised on the use of the bow and arrows. He was
convicted of three counts of misdemeanor domestic assault by bodily injury. See T.C.A.
§§ 39-13-101(a)(1), -111(b).
The record from direct appeal reflects that the Petitioner had pending felony and
misdemeanor charges in Grundy County, including an aggravated burglary and a Class D
vandalism charge.1 The Petitioner waived venue and entered into a plea agreement with
the State whereby he was to plead guilty to the pending Grundy County felony charges in
exchange for agreed-upon sentences in those cases and in the Franklin County jury
convictions. For the jury convictions, the Petitioner was sentenced to fifteen years as a
career offender for aggravated assault, twelve years as a career offender for attempted
aggravated assault, and eleven months, twenty-nine days for each of the three domestic
assaults. In addition, the Petitioner was to be sentenced to twelve years as a career
offender for Class D felony vandalism and to fifteen years as a career offender for
aggravated burglary. All of the sentences were to be served concurrently.
After the entry of judgments, the Petitioner filed a pro se Motion for Reduction of
Sentence under Tennessee Rule of Criminal Procedure 35. State v. Stephen Gerard
Smith, No. M2015-00261-CCA-R3-CD, 2016 WL 6541838, at *1 (Tenn. Crim. App.
Nov. 4, 2016), perm. app. denied (Tenn. Mar. 8, 2017). The trial court held a hearing on
the motion. During the hearing, trial counsel acknowledged that he had incorrectly
advised the Petitioner regarding his Range on the Class C aggravated assault. Trial
counsel had told the Petitioner that he was a career offender subject to a fifteen-year
sentence on the Class C felony, when the Petitioner was actually a persistent offender,
subject to a ten- to fifteen-year sentence. Trial counsel noted that he was attempting to
prevent consecutive sentencing, particularly because there was an allegation that the
1
According to the prosecutor’s statement at sentencing, Ms. Jones and her husband were the
victims in one of these cases.
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vandalism and aggravated burglary were committed while the Petitioner was released on
bond. The trial court informed the Petitioner that he would “run the risk of getting
somewhere between [ten] and [fifteen] years on the one that you’re convicted [of] and
then going to trial and getting those stacked on top of those.” Id. The Petitioner
responded, “Yes, sir.” Id. The trial court concluded that it must vacate the entire plea
agreement, including not only the sentences in the case with the jury trial but the Grundy
County guilty pleas. Id. at *2. Represented by new counsel at a new sentencing hearing,
the Petitioner received a thirteen-year sentence as a persistent offender for the aggravated
assault and a twelve-year sentence as a career offender for the attempted aggravated
assault. Id. at *3. The trial court ordered these to be served consecutively to one another
but concurrently with his three misdemeanor domestic assault convictions for an effective
twenty-five-year sentence. Id. On appeal, the Petitioner challenged the trial court’s
procedure in the hearing on his pro se motion for reduction of a sentence, and he
challenged the length of the sentences imposed. Id. at *1. This court denied relief, and
the Tennessee Supreme Court denied permission to appeal. Id.
Post-conviction Proceedings
On February 26, 2018, the Petitioner filed a timely post-conviction petition,
asserting various instances of ineffective assistance of counsel and other grounds for
relief. He was appointed counsel and filed an amended petition for post-conviction relief.
The grounds relevant to appeal included the following allegations: (1) that the Petitioner
rejected a plea offer of eleven months and twenty-nine days based on inaccurate advice
from counsel; (2) that trial counsel failed to take action when a juror revealed that she had
been on a previous jury where the Petitioner was the defendant; (3) that trial counsel,
without consulting the Petitioner, argued to the jury that he was guilty of the
misdemeanor offenses charged; (4) that trial counsel was deficient in failing to object to
the victim’s testimony referring to the Petitioner’s prior incarceration; (5) that trial
counsel failed to object to a statement by the prosecutor which vouched for the victim’s
testimony; (6) that trial counsel had been deficient in failing to call Mr. Partin and Ms.
Thompson to rebut the victim’s testimony that she never asserted Ms. Jones forced her to
make the allegations; and (7) that trial counsel failed to call Mr. Pickett or Officer Francis
as witnesses and that trial counsel did not challenge the admissibility of Ms. Armstrong’s
and Ms. Finney’s testimony.
The Petitioner and his trial counsel testified at the hearing and agreed that trial
counsel was hired to represent the Petitioner in general sessions court, where the
Petitioner was charged only with domestic assault and given a plea offer of eleven
months and twenty-nine days in jail. After the Petitioner refused the plea offer and
waived his preliminary hearing, he was charged in circuit court with three counts of
aggravated assault committed against his wife, three counts of domestic assault
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committed against his wife, and one count of domestic assault committed against his
child. The Petitioner was briefly represented by the public defender’s office, but due to a
conflict, trial counsel was appointed to the case.
According to the Petitioner, the prosecutor’s initial plea offer was the maximum
sentence for the single count of domestic assault with which he was charged in general
sessions court. The Petitioner testified that trial counsel advised him to waive his
preliminary hearing and proceed to trial because the State’s plea offer was already the
maximum sentence. According to the Petitioner, trial counsel never stated that the
charges could be increased, and if he had known that he could face additional charges, he
would have taken the initial plea offer. The Petitioner testified that in circuit court, trial
counsel did not discuss the case with him except to relay plea offers by the State. He
agreed on cross-examination that the plea offer was increased from eleven months and
twenty-nine days to six years when the case was moved to circuit court. He questioned
whether “everybody in Franklin County that threatens their spouse with the threatened
use of a deadly weapon” would be charged with aggravated assault.
Trial counsel denied having told Petitioner that the misdemeanor sentence was the
most he could receive, noting that he knew at the time that the prosecutor had threatened
to charge the Petitioner with aggravated assault. Trial counsel in particular recalled that,
as he was speaking with the Petitioner and the Petitioner’s friend in the general sessions
courtroom regarding the offer, the prosecutor walked past and told them that if the
Petitioner did not accept the offer, the prosecutor would amend the charges. He did not
recall the Petitioner’s having consumed alcohol prior to this interaction. He testified that
he did not inform the Petitioner of his potential sentencing exposure because he did not
know the Petitioner’s criminal history but told the Petitioner that a Range I sentence for
aggravated assault would be three to six years. According to trial counsel, he relayed the
State’s initial plea offer to the Petitioner, but the Petitioner told him “he’s not going to do
11/29” and “wasn’t going to have it any other way.” After the Petitioner waived the
preliminary hearing, the prosecutor offered to resolve the offenses, along with pending
aggravated burglary and a pending Class D vandalism charge, by offering a six-year
concurrent sentence. Trial counsel testified he “begged” the Petitioner to accept the
offer. The Petitioner, however, refused to consider any offers because of his blithe but
mistaken confidence that the victim would not testify. After trial, the Petitioner agreed to
waive venue and enter guilty pleas in his pending burglary and vandalism charges,
resulting in a fifteen-year concurrent sentence for all offenses. Because the Petitioner
was incorrectly classified as a career offender on the aggravated assault offense, he filed
a Rule 35 motion to contest the judgments, and he ultimately received a twenty-five-year
sentence.
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Regarding trial counsel’s performance at voir dire, the Petitioner testified that one
of the jurors stated in front of the jury pool that she had been a juror on a prior “likewise
case” in which the Petitioner was the defendant. The Petitioner believed she was on the
2008 jury in his trial for kidnapping. He testified that the juror did not sit on the jury but
that trial counsel did not object or move for a mistrial. He agreed that the juror did not
specify whether the trial was criminal or civil. He also agreed that while his recollection
was that she said it was a “likewise jury,” the transcript reflected that her response was
“indiscernible.” Trial counsel acknowledged that the juror said she had been on a jury
where the Petitioner was the defendant and that this statement was made in front of the
venire. Trial counsel acknowledged he did not object, stating he did not think the
statement would taint the pool and he did not want to draw attention to it. He testified
that the juror was not seated on the jury.
The transcript of voir dire shows that after some prospective jurors had been
dismissed, the prosecutor asked if any of the new prospective jurors knew or had “had
dealings with” the Petitioner. The juror volunteered, and the following exchange took
place:
[Prosecutor]: …. You have, okay. And what’s that association?
Juror: I just have trial jury [the Petitioner] – I couldn’t I just
(indiscernible) jury where [the Petitioner] was, I believe, the defendant.
[Prosecutor]: So that answers the question that you had other jury
experience as well. Would that experience affect you[r] ability to follow
the law and the facts in this particular case and serve today?
Juror: No.
After further discussion of other topics, more peremptory challenges were issued. The
juror was excused through a peremptory challenge.
The Petitioner also testified that during closing argument, trial counsel said, “my
client’s guilty,” paused fifteen seconds, then said “my client is not guilty of this.” Trial
counsel never discussed admitting guilt of the misdemeanor offenses to the jury as a trial
strategy with the Petitioner, and the Petitioner testified he would not have agreed to admit
guilt if he had been consulted. Asked if he had refrained from complaining about the
strategy because he “understood that what [trial counsel] was trying to get the jury to do
was to convict [the Petitioner] on the misdemeanors and not the felonies,” he responded
that trial counsel was attempting to fix trial counsel’s mistake in advising the Petitioner to
reject the plea offer in general sessions court. The Petitioner testified that he did not ever
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communicate his disapproval of the strategy to trial counsel, either at trial or when trial
counsel visited him in prison to discuss his pending Rule 35 motion.
Trial counsel acknowledged that he told the jury that the Petitioner was guilty of
the domestic assault charges. Trial counsel explained that he had attempted to prepare
for trial with the Petitioner but that the Petitioner refused to discuss any of the facts
surrounding the offenses because he staunchly but incorrectly believed that the victim
would not testify. Although trial counsel told the Petitioner that trial counsel had met
with the victim and believed she would testify, the Petitioner was not swayed and refused
to help trial counsel prepare for trial. Trial counsel testified that after hearing the trial
testimony of the victim, whom he found credible, he decided to argue that the Petitioner
was guilty of the lesser charges in order to attempt to secure acquittal on the aggravated
assault charges. He acknowledged he never told the Petitioner that he intended to tell the
jury that the Petitioner was guilty of some of the offenses, despite having the opportunity
to do so.
During closing argument, defense counsel attempted to emphasize that no
testimony connected the victim’s injuries with any of the deadly weapons charged. He
stated:
Ladies and gentlemen, [the victim’s] own testimony and from the
other witnesses, this bruise was caused by his hand. Is [the Petitioner]
guilty of domestic assault by hitting her in her hip, or that assault — that
bruise in Exhibit No. 10? Absolutely. He’s guilty of it. He shouldn’t hit
her. It’s not appropriate. It shouldn’t have been done. Is he guilty of
domestic assault? Absolutely.
This assault on Exhibit No. 8 on her face, remember the testimony
where he took his finger and poked her in the side of the head and caused
that bruise? Is that domestic [sic] assault? No, it’s not. Is he guilty of
domestic assault for poking her? Absolutely, but it’s not aggravated
assault, it’s domestic assault. Should it have taken place? Absolutely not.
It’s uncalled for, but it’s not aggravated assault.
The bruise on her arm, No. 9, when he threw the sippy cup, it’s not
aggravated assault. It’s not. Is he guilty of it? Absolutely. Not
appropriate. Absolutely.
Trial counsel emphasized the victim’s delay in reporting, the inconsistencies between her
affidavits, and the victim’s continued contact with the Petitioner. He concluded, “Is [the
Petitioner] guilty of domestic assault? Absolutely. Is he guilty of aggravated assault?
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Absolutely not. And ladies and gentlemen of the jury, I would ask you to come back
with a not guilty verdict on the aggravated assault.”
In rebuttal, the prosecutor noted that the Petitioner had not presented evidence
questioning the occurrence of an assault. She observed, “In fact, you’ve heard
admissions as to the domestic violence, admissions that the Defendant made in open
court as well as you’ve just heard [trial counsel] admit that they happened.” The
prosecutor argued that these admissions bolstered the victim’s testimony supporting the
aggravated assault charges, noting other corroborating witnesses.
Regarding the victim’s testimony revealing the Petitioner’s incarceration, the
Petitioner noted that the victim had testified that the Petitioner’s father bought the victim
a car while the Petition was incarcerated. Trial counsel did not object. Trial counsel
agreed that he did not “pick up” on the victim’s testimony referencing a prior
incarceration. He did not object to the testimony.
The Petitioner asserted ineffective assistance in trial counsel’s failure to object to
the prosecutor’s statement allegedly vouching for the victim’s credibility. After the
victim had acknowledged her attempted reconciliation with the Petitioner, the prosecutor
asked her, “But you’re testifying to the truth today, correct?” At the post-conviction
hearing, trial counsel agreed that he did not object to this question.
Trial counsel stated that his strategy at trial was to introduce evidence that the
victim had continued to have a relationship with the Petitioner after the assault. The
theory of the defense was that Ms. Jones forced the victim to allege that the Petitioner
assaulted her. At trial, the victim denied having said to Mr. Partin or Ms. Thompson that
she was only reporting the offenses because of her employer. Trial counsel agreed he did
not call either Mr. Partin or Ms. Thompson as a witness to rebut the victim’s testimony.
However, trial counsel noted that he believed he only learned about the witnesses on the
day of trial because the Petitioner had not previously cooperated in preparing his own
defense.
The Petitioner testified that he knew the State intended to call Ms. Finney to
testify but that he did not know what her testimony would be. He stated that she
ultimately testified that she saw the Petitioner trying to put his wife in the trunk. He
asserted this action was not a charged offense. Ms. Armstrong testified that the Petitioner
admitted to offenses against the victim at a hearing on an order of protection. The
Petitioner denied admitting guilt but acknowledged that the court held a jury-out hearing
regarding the admissibility of the testimony. The Petitioner also testified regarding
witnesses who he thought would have been able to rebut the testimony regarding the
victim’s bruises. The Petitioner stated he had told trial counsel that Mr. Pickett came to
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the house and would have seen any bruises that were visible on the victim. The
Petitioner also noted that the victim had testified that Officer Francis came to the home
where she was staying after she escaped the marital home. The Petitioner also testified
that the birthday party attendees would have seen any bruises present, but he stated he did
not tell trial counsel the names of the attendees.
Trial counsel did not recall discussing Mr. Pickett with the Petitioner. He knew
Mr. Pickett was on the State’s witness list, but the Petitioner never told trial counsel that
Mr. Pickett’s testimony would be favorable to the defense. Trial counsel acknowledged
that he did not interview Mr. Pickett or Ms. Finney. He noted that Ms. Finney’s
testimony was brief and did not describe bad acts but only described seeing the car by the
side of the road, which corroborated the victim’s testimony. Mr. Pickett did not testify at
trial. Trial counsel acknowledged he did not interview Officer Francis. He stated he
believed that Officer Francis did not see the victim immediately after the crime, and he
was uncertain if the victim’s bruises would have been visible at the time Officer Francis
saw her. He stated that the Petitioner first mentioned the birthday party on the day of
trial.
The Petitioner’s father, John Smith, Jr., testified at the post-conviction hearing that
trial counsel did not discuss trial strategy but only plea offers with him. He did not recall
if he attended the hearing on the order of protection.
The post-conviction court denied relief. The court credited trial counsel’s
testimony regarding the circumstances of the plea offer. It also concluded that trial
counsel’s failure to challenge the juror was not deficient or prejudicial because “further
inquiry” would not have benefited the Petitioner and because a motion for a mistrial
would not have been successful. The post-conviction court found that trial counsel’s
closing argument was a reasonable trial strategy in light of the strong evidence and was
not prejudicial. The court declined to find prejudice from the failure to object to the
testimony about the Petitioner’s prior incarceration and concluded that the failure to
object to the State’s alleged comment on the victim’s veracity was neither deficient nor
prejudicial. The post-conviction court found that the Petitioner could not show prejudice
in the failure to call witnesses because these witnesses, including Mr. Partin, Ms.
Thompson, and the “witnesses to rebut the victim’s testimony that the victim was still
visibly bruised,” did not testify at the post-conviction hearing. The Petitioner appeals.
ANALYSIS
The Petitioner asserts that he is entitled to post-conviction relief because his Sixth
Amendment right to counsel was violated by trial counsel’s deficient performance.
Under the Post-Conviction Procedure Act, a petitioner is entitled to relief when “the
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conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103. The burden of proving allegations of fact by clear and convincing
evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-
conviction court’s findings of fact are binding on the appellate court unless the evidence
preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).
Accordingly, the reviewing court defers to the post-conviction court’s findings regarding
the credibility of witnesses, the weight and value of witness testimony, and the resolution
of factual issues. Id. Questions of law and mixed questions of law and fact are reviewed
de novo. Id. Each element of a claim of ineffective assistance of counsel is a mixed
question of law and fact. Id.Under the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance
of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). A petitioner must prove
both that counsel’s performance was deficient and that the deficient performance caused
prejudice to the defense in order to prevail on a claim asserting ineffective assistance of
counsel. Kendrick, 454 S.W.3d at 457 (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)).
Deficiency requires showing that counsel’s errors were so serious “‘that counsel
was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (quoting Strickland,
466 U.S. at 687). To demonstrate deficiency, the petitioner must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008). Courts must
make every effort “‘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.’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011)
(quoting Strickland, 466 U.S. at 689). “‘[A] reviewing court must be highly deferential
and should indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Id. (quoting State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999)). In evaluating counsel’s performance, strategic decisions made after a
thorough investigation “‘are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.’” Kendrick, 454 S.W.3d
at 458 (quoting Strickland, 466 U.S. at 690-91). The reviewing court must begin with the
presumption “that counsel provided adequate assistance and used reasonable professional
judgment to make all strategic and tactical significant decisions.” Davidson v. State, 453
S.W.3d 386, 393 (Tenn. 2014).
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In determining prejudice, the post-conviction court must decide whether there is a
reasonable probability that, absent the errors, the result of the proceeding would have
been different. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” State v.
Honeycutt, 54 S.W.3d 762, 768 (Tenn. 2001) (quoting Strickland, 466 U.S. at 694). The
petitioner must show that the deficiency deprived him of a fair trial and called the
reliability of the outcome of the proceeding into question. Finch v. State, 226 S.W.3d
307, 316 (Tenn. 2007). A claim may be denied for failure to establish either deficiency
or prejudice, and the reviewing court need not address both components if a petitioner
has failed to establish one. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
I. Plea Negotiations
The Petitioner asserts that trial counsel performed deficiently by not advising him
that the State could amend the charges from one count of domestic assault to three counts
of aggravated assault and three counts of domestic assault. He contends that trial counsel
deficiently advised him to refuse the State’s plea offer to serve eleven months and
twenty-nine days for the offense for which he ultimately received a twenty-five-year
sentence, and he argues that he would have accepted the plea offer had he been properly
advised. We conclude that, based on the post-conviction court’s factual findings, the
Petitioner has not established deficiency or prejudice.
The Petitioner was initially charged with a single count of domestic assault and
was given a plea offer of eleven months and twenty-nine days. He was ultimately
convicted of aggravated assault, attempted aggravated assault, and three counts of
domestic assault, and received a sentence of twenty-five years. The Petitioner asserted
that trial counsel failed to advise him that he could be subject to a greater penalty if he
refused the State’s plea offer. Trial counsel, on the other hand, testified that the
Petitioner adamantly refused to consider entering a guilty plea, relying on his mistaken
perception that the victim would not testify. Trial counsel also testified that the
prosecutor informed both him and the Petitioner that if the Petitioner refused the plea
offer, he would be charged with aggravated assault. He stated that he advised the
Petitioner that a Range I penalty for the offense would be three to six years but did not
tell the Petitioner what his personal exposure was because he did not yet have access to
the Petitioner’s criminal history. The post-conviction court credited the testimony of trial
counsel that he advised the Petitioner that he would be subject to a greater penalty if he
refused the plea offer and that the Petitioner knew that the prosecutor intended to charge
him with a felony offense if he refused the plea offer. We are bound by the post-
conviction court’s factual findings unless the evidence preponderates otherwise.
Kendrick, 454 S.W.3d at 457. Accordingly, we conclude trial counsel did not perform
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deficiently or prejudice the defense. The Petitioner is not entitled to relief based on this
issue.
II. Voir Dire
The Petitioner also asserts that trial counsel was deficient in failing to object or to
move for a mistrial when a juror announced that she had previously served on a jury in a
case where the Petitioner was the defendant. The State argues that trial counsel’s
decisions were strategic and entitled to deference. We conclude that the Petitioner cannot
show prejudice and is not entitled to relief.
The transcript of voir dire shows that the juror was called after other jurors had
been dismissed pursuant to peremptory challenges. The prosecutor asked the new
prospective jurors if they knew or had “had dealings with” the Petitioner. The juror
stated, “I just have trial jury [the Petitioner] – I couldn’t I just (indiscernible) jury where
[the Petitioner] was, I believe, the defendant.” At the post-conviction hearing, the
Petitioner asserted that the juror stated in front of the venire that she had been a juror on a
“likewise case” in which the Petitioner was the defendant. While the Petitioner
acknowledged that the juror did not specify that the prior trial was a criminal matter, he
emphasized that she used the word “likewise” and speculated that the juror served on his
prior trial on a kidnapping charge. Trial counsel agreed that the juror said she had been
on a jury where the Petitioner was the defendant and that this statement was made in front
of the venire. Trial counsel acknowledged he did not object, stating he did not think the
statement would taint the pool and he did not want to draw attention to it. The transcript
reveals that after further discussion of other topics, more peremptory challenges were
issued, and the juror was excused pursuant to a peremptory challenge.
A defendant is entitled to a trial by an impartial jury, and jurors must “render their
verdict based only upon the evidence introduced at trial, weighing the evidence in light of
their own experience and knowledge.” State v. Adams, 405 S.W.3d 641, 650 (Tenn.
2013) (citing U.S. Const. amend. VI; Tenn. Const. art. I § 9). “‘[I]n the absence of proof
to the contrary,’” we presume the jury is “‘impartial and qualified.’” State v. Michael
Small, No. W2009-00858-CCA-R3-CD, 2012 WL 1549832, at *8 (Tenn. Crim. App.
May 2, 2012) (quoting State v. Cooper, 736 S.W.2d 125, 130 (Tenn. Crim. App. 1987)).
“Generally, errors committed during the selection, summoning and empaneling of juries
do not affect the validity of a verdict in a criminal case unless prejudice has enured to the
accused.” State v. Reginald Merriweather, No. W1999-02050-CCA-R3-CD, 2002 WL
1482742, at *8 (Tenn. Crim. App. Feb. 11, 2002) (citing Helton v. State, 255 S.W.2d 694,
700 (Tenn. 1953); State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992); State v.
Elrod, 721 S.W.2d 820, 822 (Tenn. Crim. App. 1986); State v. Wiseman, 643 S.W.2d
354, 359 (Tenn. Crim. App. 1982)). A comment from a prospective juror “is not grounds
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for a mistrial absent evidence showing that the jury which heard the case was prejudiced
or biased by the statements of the prospective juror.” State v. Brown, 795 S.W.2d 689,
696 (Tenn. Crim. App. 1990); see State v. Daniel T. Maupin, No. M2016-01483-CCA-
R3-CD, 2017 WL 4331053, at *3 (Tenn. Crim. App. Sept. 28, 2017).
We conclude that the Petitioner has not established prejudice with regard to this
claim of ineffective assistance of counsel. While the trial counsel may have been able to
successfully challenge the juror for cause, see, e.g., State v. Tavarus Detterio Griffin, No.
W2014-02114-CCA-R3-CD, 2015 WL 7833205, at *10 (Tenn. Crim. App. Dec. 3, 2015)
(excusing a juror who had been in the venire when the defendant was initially tried);
Donavan Edward Daniel v. State, No. W2003-02511-CCA-R3-PC, 2004 WL 2159004, at
*7 (Tenn. Crim. App. Sept. 27, 2004) (prospective jurors familiar with the defendant
were excused), the juror ultimately was not seated on the jury. See State v. Javoris
Sparkman, No. M2010-01521-CCA-R3-CD, 2012 WL 1799024, at *11 (Tenn. Crim.
App. May 18, 2012) (“Regardless of whether the trial judge should have excluded the
challenged jurors for cause, any possible error is harmless unless the jury who actually
heard the case was not fair and impartial.”). The juror’s statement was brief, not entirely
coherent, and partially indiscernible to the court reporter.
Ultimately, the Petitioner has presented no proof that the jury that actually sat in
judgment of him was not fair and impartial. Accordingly, he has not established
prejudice from trial counsel’s alleged deficiency. See State v. Harries, 657 S.W.2d 414,
419 (Tenn. 1983) (prospective juror’s comment that she had heard on the news that the
defendant used drugs and was a habitual criminal was not grounds for relief); Brown, 795
S.W.2d at 696 (the defendants failed to show that the actual jury was biased when a
prospective juror indicated he had damaging information regarding the defendants from
an acquaintance who was familiar with the crime); Michael Small, 2012 WL 1549832, at
*8 (concluding that the defendant had failed to show that a potential juror’s declaration
that the defendant was “freaking [her] out” affected the impartiality of other jurors); State
v. Christopher K. Knight, No. W2001-02995-CCA-R3-CD, 2003 WL 721701, at *1
(Tenn. Crim. App. Feb. 27, 2003) (the jury pool was not tainted when a prospective juror
revealed that he was acquainted with the defendant through his work on the disciplinary
committee of a school where the defendant was a student); Reginald Merriweather, 2002
WL 1482742, at *8 (concluding that that the defendant had failed to show prejudice from
a prospective juror’s remark in front of the venire that he had met the defendant
previously and could not be fair due to the circumstances under which they met). We
conclude that the Petitioner is not entitled to relief on this issue.
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III. Admission of Guilt in Closing Argument
The Petitioner next challenges trial counsel’s choice to acknowledge the
Petitioner’s guilt of the misdemeanor offenses in closing argument without consulting the
Petitioner. The parties’ briefs are limited to general assertions that counsel’s conduct
either did or did not constitute ineffective assistance. After reviewing the ample and
accessible caselaw which guides our analysis of this specific claim, we conclude that
while trial counsel was deficient in failing to consult with the Petitioner regarding a
concession of guilt, the Petitioner has not demonstrated prejudice.
The Sixth Amendment to the United States Constitution guarantees a defendant
“the Assistance of Counsel.” In providing such assistance, trial counsel is charged with
making decisions regarding trial management, such as “what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude regarding the admission
of evidence.” New York v. Hill, 528 U.S. 110, 114-115 (2000) (citations omitted).
Nevertheless, trial counsel, “‘however expert, is still an assistant.’” McCoy v. Louisiana,
138 S. Ct. 1500, 1508 (2018) (quoting Faretta v. California, 422 U.S. 806, 820 (1975)).
Accordingly, “[s]ome decisions … are reserved for the client — notably, whether to
plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an
appeal.” Id. at 1508.
In Florida v. Nixon, the United States Supreme Court analyzed an attorney’s
decision to concede guilt in the trial phase of a death penalty case in order to preserve
credibility in arguing for a lesser punishment. Florida v. Nixon, 543 U.S. 175, 178
(2004). Concluding that it was error for the lower courts to apply a presumption of
prejudice, the Court analyzed the claim under the general principles of ineffective
assistance of counsel. Id. at 178-79. In Nixon, trial counsel attempted to discuss the
strategy of conceding guilt in the face of overwhelming evidence, but the defendant was
unresponsive. Id. at 181. The Court observed that “certain decisions regarding the
exercise or waiver of basic trial rights are of such moment that they cannot be made for
the defendant by a surrogate.” Id. at 187. These decisions, on which the defendant
retains “‘the ultimate authority,’” include “‘whether to plead guilty, waive a jury, testify
in his or her own behalf, or take an appeal.’” Id. (quoting Jones v. Barnes, 463 U.S. 745,
751 (1983)). Accordingly, a mere “tacit acquiescence” in a guilty plea is insufficient
because a guilty plea requires an explicit and affirmative consent. Id. at 187-88 (citing
Boykin v. Alabama, 395 U.S. 238, 242 (1969)).
However, the Nixon court made a distinction between entering a guilty plea and an
argument in which counsel conceded guilt, because when guilt is conceded pursuant to
closing argument, the prosecution remains “obliged to present during the guilt phase
competent, admissible evidence establishing the essential elements of the crimes with
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which [the defendant] was charged,” and because the defense is able to cross-examine
witnesses, exclude evidence, and perfect an appeal. Id. at 188. The Supreme Court
concluded that it was error to presume that trial counsel’s concession without the
defendant’s explicit permission was deficient or to apply a presumption of prejudice. Id.
at 189. Because trial counsel’s conduct was not the equivalent of a guilty plea and
because trial counsel did not fail to subject the prosecution to meaningful adversarial
testing, no presumption of prejudice would apply.2 Id. at 190 (citing United States v.
Cronic, 466 U.S. 648, 659 (1984)).
Accordingly, conceding guilt in argument is subject to a post-conviction analysis
under Strickland when trial counsel has not failed to subject the State’s case to
meaningful adversarial testing and is not overriding the defendant’s stated objective. Id.
at 193; see McCoy, 138 S. Ct. at 1509. The record here demonstrates that the Petitioner
had previously acknowledged guilt on the misdemeanor offenses. Ms. Armstrong and the
victim both testified at trial that, during the hearing on the order of protection, the
Petitioner agreed that he was guilty of assaulting the victim. See Nicos Broadnax v.
State, No. W2018-01503-CCA-R3-PC, 2019 WL 1450399, at *5, 6 (Tenn. Crim. App.
Mar. 29, 2019), perm. app. denied (Tenn. July 19, 2019) (noting, in the denial of post-
conviction relief based on counsel’s alleged failure to consult the defendant regarding
conceding guilt, that the defendant had acknowledged his involvement in the offense to
police). During the hearing on the order of protection, the allegations read into the record
included the domestic assault allegations regarding the Petitioner’s hitting the victim and
assaulting her with a shoe and a sippy cup. While the Petitioner disputed that he
acknowledged guilt, both the Petitioner and trial counsel testified that the Petitioner made
no objection to trial counsel’s closing argument and never contemporaneously
complained regarding the strategy. Nixon, 543 U.S. at 185 (the objection to counsel’s
strategy was not raised until direct appeal); see McCoy, 138 S. Ct. at 1509 (distinguishing
Nixon by noting that the defendant in Nixon “complained about the admission of his guilt
only after trial”). The record instead shows that the Petitioner insisted on trial not
because he asserted his innocence but because he believed that the victim would not
come to court to testify.
However, the Nixon court’s analysis is built upon the fundamental conclusion that
trial counsel “undoubtedly” has the duty to consult with the defendant regarding
overarching defense strategy and other important decisions. Nixon, 543 U.S. at 187.
2
The Petitioner, whose direct appeal was decided prior to McCoy, does not raise a claim that his
Sixth Amendment right to autonomy in his defense was violated. See McCoy, 138 S. Ct. at 1509-11(holding that when a defendant adamantly opposed the strategy of conceding guilt, trial counsel had, by
conceding guilt, violated the defendant’s Sixth Amendment right to autonomy in his defense and had
committed structural error not subject to harmless error review).
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Trial counsel is “obliged to…explain his proposed trial strategy” to the defendant and
“fulfill[] his duty of consultation by informing [the defendant] of counsel’s proposed
strategy and its potential benefits.” Id. at 189. Counsel may only pursue a strategy of
conceding guilt without explicit permission “when a defendant, informed by counsel,
neither consents nor objects to the course counsel describes as the most promising means
to avert a sentence of death.” Id. at 178 (emphasis added); see McCoy, 138 S. Ct. at 1509(concluding that trial counsel could not override the defendant’s choice of defense “[i]f,
after consultations with [trial counsel] concerning the management of the defense, [the
defendant] disagreed” with the strategy (emphasis added)).
In the case at bar, trial counsel, by his own testimony, failed in this duty to consult
the Petitioner. Trial counsel acknowledged at the post-conviction hearing that the
Petitioner was seated next to him during the lengthy trial and that, despite having the
opportunity to consult the Petitioner, he never proposed conceding guilt on the
misdemeanor domestic assault offenses in an attempt to secure acquittal on the
aggravated assault charges. Although trial counsel testified that the Petitioner refused to
cooperate in his defense prior to trial, the testimony at the post-conviction hearing
revealed that the Petitioner consulted with trial counsel as trial proceeded, providing him
with information relevant to the cross-examination of witnesses. Accordingly, the
Petitioner has demonstrated deficiency. Compare Nicos Broadnax, 2019 WL 1450399, at
*6 (concluding that the post-conviction court implicitly discredited the petitioner’s claim
that he had not been consulted regarding the strategy of conceding guilt to a lesser
included offense and that he had not acquiesced in the strategy).
In post-conviction, the burden is on the Petitioner to show that, but for trial
counsel’s deficiency, there is a reasonable probability that the outcome of the proceeding
would have been different. Here, the Petitioner has not established prejudice from trial
counsel’s failure to consult him. First, despite the Petitioner’s claim that he would have
opposed the strategy, the record indicates that the Petitioner did not attempt to object to
trial counsel’s argument, and the Petitioner has not provided clear and convincing
evidence that he would have opposed the strategy. When the Petitioner was asked if he
refrained from objecting because he understood the strategy, he responded that he
believed trial counsel was attempting to rectify trial counsel’s mistake in advising him to
reject the general sessions plea offer for the domestic assault. The logical inference is
that the Petitioner understood that the strategy was to attempt to limit the convictions to
the misdemeanor offenses. The Petitioner had previously acknowledged his guilt of
domestic assault in a prior proceeding, and he agreed at the post-conviction hearing that
he never voiced any objection to trial counsel’s strategy of conceding guilt on the
misdemeanor offenses in closing argument, not even when trial counsel met with him
after trial to discuss his Rule 35 motion. Furthermore, the proof at trial was strong, and
there was no question regarding the identity of the assailant. Trial counsel testified that
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the victim was credible, and there was testimony from several witnesses, including the
Petitioner’s mother, that the victim bore bruises following the attack, as well as
photographic evidence of her bruises and the hole made by the spindle in the dashboard.
Trial counsel’s strategy was successful in that the Petitioner was ultimately acquitted of
one count of aggravated assault and convicted of a lesser included offense on another
count. We conclude the Petitioner has not shown that the deficiency resulted in
prejudice.
IV. Failure to Object to Testimony of Prior Incarceration
The Petitioner asserts that trial counsel was ineffective in failing to object to the
victim’s testimony regarding the Petitioner’s prior incarceration. We conclude that the
Petitioner has failed to establish prejudice stemming from counsel’s failure to object.
At trial, the victim gave testimony implying that the Petitioner had taken her
vehicle while she was at a restaurant when she returned to town for a hearing on the order
of protection. Trial counsel asked her whether the car had been a gift from the
Petitioner’s family, and she replied, “Actually, I want to say that I gave his mother, I
think, they told me I could buy the car for $300, but it was my, pretty much gift for
graduating beauty school while he was incarcerated.” Trial counsel did not object to this
testimony. At the post-conviction hearing, he stated that he did not “pick up” on the fact
that she had referenced a prior period of incarceration.
The Petitioner argues that this was evidence of prior bad acts under Tennessee
Rule of Evidence 404(b) and should not have been admissible. Regardless of the
admissibility of the testimony, the Petitioner has not shown prejudice. Although trial
counsel apparently did not “pick up” on the testimony and did not seek any relief,
including a mistrial, the Petitioner must, in order to show prejudice, establish that such
relief would have been granted. Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006)
(noting that a petitioner must show both that the failure to file a motion was deficient and
that the deficiency resulted in prejudice), abrogated on other grounds by Brown v.
Jordan, 563 S.W.3d 196, 202 (Tenn. 2018). Appellate courts have previously upheld a
trial court’s refusal to declare a mistrial after a passing reference to the defendant’s prior
imprisonment. See, e.g., State v. Bell, 512 S.W.3d 167, 188 (Tenn. 2015) (concluding
that the trial court did not err in not declaring a mistrial after two witnesses made brief
and unsolicited references to the defendant’s prior incarceration, the defendant refused a
curative instruction, and the evidence implicating the defendant was strong); State v.
Smith, 893 S.W.2d 908, 923 (Tenn. 1994) (concluding that the trial court did not err in
refusing a mistrial when a witness referenced the defendant serving time in jail where the
response was unsolicited, the court gave curative instructions, and the proof against the
defendant was overwhelming); State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim.
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App. 2007) (concluding that the trial court did not abuse its discretion in denying a
mistrial for a reference to the defendant’s incarceration when the reference was brief, was
made in an attempt to explain a response, and the trial court had given curative
instructions).
The statement here was not elicited by the State. See Welcome, 280 S.W.3d at 222
(listing factors the appellate court should evaluate in reviewing a trial court’s decision on
a motion for a mistrial). Although no curative instructions were requested, the State’s
proof was particularly strong. Id. The victim testified in detail about the abuse she
suffered at the hands of the Petitioner, and her testimony was corroborated by physical
evidence including photographs of her bruises, testimony from witnesses who saw her
injuries, and the photograph of the damage to the dashboard of the car. The Petitioner
has not established a reasonable probability that, had trial counsel sought relief based on
the brief reference to his incarceration or moved for a mistrial, the outcome of the trial
would have been different. He is not entitled to relief.
V. Failure to Object to the Prosecutor’s Comment on the Victim’s Veracity
The Petitioner contends that trial counsel was ineffective because he did not object
to a question which the Petitioner characterizes as a comment vouching for the victim’s
veracity. Because the prosecutor’s question was not improper, trial counsel was not
deficient in failing to object.
After trial counsel questioned the victim extensively about her attempt to reconcile
with the Petitioner after the assault, the prosecutor asked the victim to confirm that the
Petitioner was the father of her child and asked if she still “care[d] for him” in that role.
The prosecutor then asked, “But you’re testifying to the truth today, correct?” The victim
answered in the affirmative.
It is improper for a prosecutor to give a personal opinion as to the truth or falsity
of testimony. State v. Sexton, 368 S.W.3d 371, 420 (Tenn. 2012), as corrected (Tenn.
Oct. 10, 2012) (citing State v. Henley, 774 S.W.2d 908, 911 (Tenn. 1989)). In this case,
the Petitioner confuses giving a personal opinion with asking a question. The prosecutor
asked the victim a question regarding whether her testimony was truthful. Had she
answered that it was not, the prosecutor would have been bound by that testimony. The
prosecutor herself expressed no opinion regarding whether the victim was being truthful.
Accordingly, trial counsel had no basis to object, and his performance on this issue was
not deficient.
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VI. Failure to Call Witnesses
The Petitioner asserts that trial counsel provided ineffective assistance by failing
to call Mr. Partin or Ms. Thompson. Because the witnesses did not testify at the post-
conviction hearing, the Petitioner is not entitled to relief.
The Petitioner contends that Mr. Partin and Ms. Thompson should have been
called as witnesses to rebut the victim’s testimony that she did not tell Mr. Partin and Ms.
Thompson that she made allegations of abuse at Ms. Jones’s behest. The post-conviction
court denied relief because neither witness testified at the post-conviction hearing. When
a claim of ineffective assistance of counsel is premised on counsel’s failure to interview
or call witnesses, the witnesses must be presented at the post-conviction hearing. Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “‘As a general rule, this is the
only way the petitioner can establish that ... the failure to have a known witness present
or call the witness to the stand resulted in the denial of critical evidence which inured to
the prejudice of the petitioner.’” Pylant, 263 S.W.3d at 869 (quoting Black, 794 S.W.2d
at 757). This is because the court cannot speculate as to what a witness’s testimony
might have been. Black, 794 S.W.2d at 757. The Petitioner presented no proof that Mr.
Partin or Ms. Thompson would have given favorable testimony. Accordingly, he has not
demonstrated prejudice.
VII. Failure to Interview Witnesses
The Petitioner alleges that trial counsel provided ineffective assistance by failing
to interview certain witnesses. The State responds that the failure to interview was not
deficient or prejudicial. We conclude that this argument is waived for failure to include
argument and failure to raise the argument before the post-conviction court.
The Petitioner’s brief refers to trial counsel’s acknowledging “that he had not
spoken to at least three of the State’s witnesses prior to trial.” The brief does not name
these witnesses but includes citations to the record. We infer from the citations that the
three witnesses are some combination of Mr. Pickett, Ms. Armstrong, Ms. Finney, and
Officer Francis. The Petitioner’s brief then asserts that “[o]ne will never know” if the
outcome of trial was affected. Prejudice, however, requires showing a reasonable
probability that the outcome was affected. We conclude that this issue is waived because
the Petitioner has not included argument specifying the witnesses and has not alleged
prejudice in his brief. State v. Hester, 324 S.W.3d 1, 80 (Tenn. 2010) (“A reviewing
court may deem an issue waived when a party fails to develop an argument in support of
its contention or merely constructs a skeletal argument.”); see Tenn. Ct. Crim. App. R.
10(b) (noting that this court will treat as waived issues which are not supported by
argument). We note parenthetically that the Petitioner has made no showing regarding
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what information interviews with any of the witnesses would have uncovered and hence
cannot establish prejudice.
Likewise, the failure to interview witnesses was never raised in the written post-
conviction petitions. The post-conviction court addressed trial counsel’s failure to call
the witnesses who would allegedly have rebutted the testimony regarding bruising (Mr.
Pickett and Officer Francis), but it never addressed trial counsel’s failure to interview the
witnesses because the issue was not raised below. “Tennessee appellate courts may only
consider issues that were not formally raised in the post-conviction petition if the issue
was argued at the post-conviction hearing and decided by the post-conviction court
without objection.” Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020). Accordingly,
on this ground, as well, the issue is waived.
CONCLUSION
Based on the foregoing analysis, we affirm the post-conviction court’s judgment.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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