Gary Hawkins v. State of Tennessee

06/30/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 7, 2017
GARY HAWKINS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 11-05793 W. Mark Ward, Judge
___________________________________
No. W2016-00723-CCA-R3-PC
___________________________________
The Petitioner, Gary Hawkins, appeals the denial of his petition for post-conviction relief
by the Shelby County Criminal Court. On appeal, he argues that trial counsel was
ineffective for (1) failing to object to testimony regarding an alleged prior bad act by the
Petitioner and (2) failing to object to improper statements made during the State’s closing
argument. Additionally, he asserts that the cumulative errors made by trial counsel
entitle him to relief. After review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, JJ., joined.
Joshua B. Dougan, Jackson, Tennessee, for the Petitioner, Gary Hawkins.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Greg Gilbert,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
A Shelby County jury convicted the Petitioner of first degree felony murder in the
perpetration of aggravated child neglect and aggravated child neglect. The Petitioner
received a life sentence for the first degree murder conviction and a concurrent twenty-
two year sentence for the aggravated child neglect conviction. State v. Gary Hawkins,
W2012-02185-CCA-R3-CD, 2014 WL 1571810, at *1 (Tenn. Crim. App. Apr. 17, 2014)
perm. app. denied (Tenn. Sep. 24, 2014). The facts underlying the Petitioner’s
convictions are as follows:
The victim in this case, S.I., was the 18-month-old daughter of Shamira
Ivory, who lived with Defendant at the time of S.I.’s death. Shamira Ivory
was pregnant with S.I. when she moved to Memphis from Atlanta in
December, 2006. Ms. Ivory testified that while living in Georgia, she gave
birth to a son who was removed from her custody at the age of six months
due to Ms. Ivory’s lack of stability and mental health issues. Ms. Ivory had
“two or three” more children removed from her custody at birth. She
testified that she moved to Memphis before S.I.’s birth so that the baby
would not be taken by authorities. When Ms. Ivory first moved to
Memphis, she lived with her mother, Mary Richardson. She then moved in
with a cousin for three months. S.I. was born on February 19, 2007, while
Ms. Ivory was living with her cousin. Ms. Ivory later lived with a man
named Bobby Torrence for a year. She testified that during that time, S.I.
was healthy except for an ear infection and that she received regular “well
baby” examinations. Ms. Ivory missed an appointment, however, for Ivory
to be examined for “low weight gain.” Ms. Ivory and Torrence separated,
and she moved in with Tyrone McNeil, by whom she became pregnant.
Ms. Ivory subsequently left McNeil and was homeless until she moved into
a home owned by her adoptive mother, Vera Corley. Ms. Ivory and S.I.
lived there with Ms. Corley’s son and daughter. Defendant also lived there
and slept on the couch. Ms. Corley’s son and daughter moved out of the
house in early September.
Ms. Ivory and Defendant began a relationship after she moved into the
house. Ms. Ivory testified about an incident when she and Defendant were
having sex while S.I. was on the bed with them. S.I. touched Defendant
and Defendant “said it felt good to him.” Ms. Ivory did not tell police
about the incident because she was afraid of losing custody of S.I. Ms.
Ivory testified about another incident when Defendant kicked Ms. Ivory in
the stomach while she was pregnant because he wanted her to get off the
couch. On another occasion, Ms. Ivory came home and Defendant
“grabbed [her] and smelled [her] private part” because Defendant “thought
[Ivory] had been sleeping with Big Homey [Ralphael Harris].”
On September 17, 2008, S.I. was fine when she woke up that morning. Ms.
Ivory stayed in the bedroom while Defendant fed S.I. Mexican food. S.I.
then went to the bedroom and stayed with Ms. Ivory until 8:00 p.m. When
they got up, Ms. Ivory made pancakes and fed S.I. at the dining room table.
She testified that S.I. ate well, was playing, and had no bruises on her
stomach. At around 9:00 p.m., Ms. Ivory left S.I. with Defendant, while
Ms. Ivory went to a store to buy cigarettes. Ms. Ivory’s friend, Ralphael
-2-
“Big Homey” Harris, drove her to the store. She testified that she was gone
for approximately 10 to 15 minutes. Ms. Ivory told police that S.I. was
“screaming and hollering” when she left to go to the store. She testified
that S.I. was “spoiled” and always cried when Ms. Ivory left her.
Ms. Ivory testified that when she returned home from buying cigarettes, she
saw S.I. lying on the couch “covered in throw up.” Defendant was sitting
on the other couch, and he told her the baby had vomited. Ms. Ivory got a
towel to clean S.I. She saw two small bruises on S.I.’s stomach. Ms. Ivory
left the house again and walked to Walgreen’s to buy Sprite and Pedialyte.
She testified that she “was worried but [S.I.] usually throws up anyway.
She has a problem with that anyway.” Ms. Ivory thought S.I. had a
stomachache. When she returned from the store, she tried to give S.I. the
Pedialyte, but S.I. would not swallow. S.I.’s eyes were rolling back in her
head, and her head was moving back and forth. S.I. was unresponsive
when Ms. Ivory splashed water on her face and rubbed ice on her forehead.
Ms. Ivory called Ms. Corley, who told her to call 911. Ms. Ivory testified
that Defendant also told her to call 911, but Defendant did not seem very
concerned. Ms. Ivory called 911, and Defendant left when they heard
sirens
....
Paramedics responded to a call made at 11:29 p.m. They found S.I. lying
on her back on a couch, and she was unresponsive, had no pulse, and was
not breathing. They began resuscitation. S.I. remained unresponsive.
Paramedic Patrick McDevitt observed that S.I.’s abdomen was distended
and bruised. Ms. Ivory told McDevitt that those “spots” had just come up.
Paramedics transported S.I. to the hospital. Dr. James Anderson O’Donnel,
II, testified that S.I. arrived at the emergency room “in full cardio
pulmonary arrest” and was receiving chest compressions and being
ventilated. Dr. O’Donnell administered several doses of epinephrine to try
to restart S.I.’s heart, but was unsuccessful. Shortly after midnight, Dr.
O’Donnell stopped resuscitation efforts.
Ms. Ivory told investigators that she went to the store and returned home to
find S.I. not feeling well. She stated that she then went to Walgreens to buy
Sprite and Pedialyte, and that she left S.I. home with Defendant both times.
Ms. Ivory gave investigators her receipt from Walgreens. Investigators also
interviewed Ralphael Harris, who stated that he picked up Ms. Ivory at her
house and drove her to the store to buy cigarettes. Sergeant Joseph Peel
-3-
reviewed “about four hours worth of video” from the store, but did not see
Ms. Ivory or Harris enter the store. Sergeant Peel also reviewed video from
Walgreens that confirmed that Ms. Ivory entered the store at 10:07 p.m. and
purchased Pedialyte and Sprite 14 minutes later. The Walgreens store was
located a third of a mile from Ms. Ivory’s house.
....
Ms. Frazier testified that a mutual friend, Kristina Owens, called her around
6:00 a.m. on September 18, and told her that Ms. Ivory was at Ms. Owens’
house and the “baby had got killed.” Frazier and Owens arranged a three-
way call with Ms. Ivory, and Ms. Ivory stated that “she was scared and she
was trying to get some money so she can go out of town.” Frazier then
called the police and reported that Ms. Ivory planned to leave town. Frazier
denied telling Lieutenant Crow that she saw Ms. Ivory abuse S.I., but she
acknowledged that she told him Ms. Ivory had five other children who were
taken from her custody. Frazier also denied telling Lieutenant Crow that
Ms. Ivory had admitted killing the baby. About an hour after Frazier
called, police picked her up, and she directed them to the house where Ms.
Ivory was located.
....
Dr. Karen Elizabeth Chancellor, Chief Medical Examiner for Shelby
County, performed an autopsy on the victim. Dr. Chancellor testified that
at the time of her death, S.I. weighed 21 pounds and was 21 inches in
length. Dr. Chancellor testified that S.I. was “small for her age” and that
she was “in the lower fifth percentile” of children her age for weight and
height. Dr. Chancellor observed scars and healing scratches on S.I.’s head,
arm, and abdomen. Dr. Chancellor observed multiple bruises on S.I.’s
abdomen and chest. There were also bruises on both lungs and blood in her
abdominal cavity and chest cavity. There were multiple tears of the small
intestine. Dr. Chancellor observed discoloration on the left side of S.I.’s
forehead. An internal examination revealed that there was an area of
hemorrhaging to the deep scalp tissue, causing the discoloration. Dr.
Chancellor found bruises on the internal tissue in S.I.’s thighs that were not
visible externally on her skin. Dr. Chancellor determined that S.I.’s injuries
were caused by blunt force trauma as a result of multiple impacts. Dr.
Chancellor opined that S.I. received “at least ten blows to the abdomen and
there were separate blows to the chest[, thighs, wrist, and head.]” Dr.
-4-
Chancellor testified that the bruises on the victim’s body appeared to be
recent. Dr. Chancellor determined that the manner of death was homicide.
Gary Hawkins, 2014 WL 1571810, at *1.
The Petitioner filed a direct appeal challenging the sufficiency of the evidence and
argued that the trial court erred by allowing evidence of a prior conviction for child abuse
into evidence. Id. This court found that the evidence was sufficient to sustain his
convictions, and concluded that even though the trial court erred by allowing evidence of
the Petitioner’s prior conviction, this error was harmless. Id. at *9-12. The Tennessee
Supreme Court denied permission to appeal. Id. at *1. On May 21, 2015, the Petitioner
filed a pro se petition for post-conviction relief alleging several grounds of ineffective
assistance of counsel. On June 1, 2015, the Petitioner was appointed counsel who filed
an amended petition, which incorporated the Petitioner’s pro se petition and raised new
grounds for relief. The State filed a response to the Petitioner’s allegations on November
25, 2015.
Post-Conviction Hearing. At the March 3, 2016 post-conviction hearing, trial
counsel testified that he represented the Petitioner during his trial and on appeal. During
the Petitioner’s trial, trial counsel remembered that the Petitioner’s co-defendant testified
about “some inappropriate contact” between the Petitioner and the victim. Specifically,
the co-defendant was asked “What did you and [the Petitioner] fight over,” and her
response was that while she and the Petitioner were having sex, the victim touched the
Petitioner on his “balls” and the Petitioner said “it felt good to him.” Trial counsel
acknowledged that he did not object to this testimony, and he was unaware that the co-
defendant would provide this testimony at trial. Trial counsel stated that he had filed a
motion in limine to prevent any testimony regarding prior child abuse by the Petitioner,
but he was unaware that the co-defendant would testify about this incident. When asked
whether it was a strategic decision not to object to the co-defendant’s testimony, trial
counsel explained that he believed the co-defendant was not a credible witness and that
her testimony was not “bad” for the Petitioner.
He explained that his defense theory was that the co-defendant was lying to the
police about the Petitioner’s involvement and “made up . . . stories to protect herself” and
that she was the person responsible for the victim’s death. Trial counsel testified that his
plan was to “come back around and cross-examine her on why she didn’t tell the police
this story.” Trial counsel testified that he only had “split second” to decide whether to
object and that he made the “choice to see where it went.” He clarified that the co-
defendant’s testimony “was a problem,” but he chose to not “draw attention” to her
testimony by objecting. Trial counsel believed that he cross-examined the co-defendant
about her statement and “attempted to impeach her.” Trial counsel stated that he waived
-5-
any issues with the co-defendant’s statement on appeal because he did not object to the
statement at trial.
Next, post-conviction counsel read an excerpt of the State’s closing argument,
which included the following remark: “[The Petitioner] is guilty. There is no question
about that, we don’t need to argue about that and frankly that is not why we are here.”
Post-conviction counsel asked trial counsel if it was “some kind of strategy” not to object
to the State characterizing the Petitioner as “guilty.” Trial counsel testified that, at the
time, “it was very difficult . . . to make those contemporaneous objections at the trial
level” because an objection would not be “supported at either the trial level, or the Court
of Criminal Appeals level.” Because he thought an objection would not be successful at
trial and that he would not be successful on appeal, he chose not to object to the State’s
remarks. However, trial counsel stated that he would treat such comments differently
today because there is additional case law to allow defense attorney’s to object to such
comments during closing argument.
On cross-examination, trial counsel reiterated that the co-defendant’s testimony
regarding the “inappropriate contact” between the victim and the Petitioner was a
complete surprise to trial counsel, and he was not expecting her to provide such
testimony. Trial counsel explained that he had to “quickly balance” whether there was
some way he could use this statement to his advantage during cross-examination or
object to the statement and ultimately decided to cross-examine the co-defendant about
this testimony. With regards to the State’s remark during closing argument that the
Petitioner was “guilty,” trial counsel stated that this remark was close to being
“objectionable” and that it “was discomforting when it was said.”
On redirect examination, post-conviction counsel read another portion of the
State’s closing argument, which included the following remark: “[The Petitioner] is the . .
. same kind of guy that would say, not my baby, not my problem, the same kind of cold
blooded guy that would punch a little girl, that’s about this tall and weighs about twenty-
one pounds in the abdomen, time and time again.” Post-conviction counsel asked if trial
counsel would object to such a remark today, and trial counsel’s response seemed to
imply that this court would “not do anything about the argument,” but he did not provide
a reason for failing to raise an objection.
The Petitioner testified that he had reviewed his petition for post-conviction relief
with post-conviction counsel, but the Petitioner stated that he did not want to testify about
any of the grounds raised in his petition.
The post-conviction court took the matter under advisement, and on March 3,
2016, the court issued a written order denying relief. The post-conviction court
-6-
concluded that trial counsel made a strategic decision not to object to the co-defendant’s
testimony regarding the “inappropriate contact” between the Petitioner and the victim,
and the State’s remarks during closing argument.1 The post-conviction court also noted
that trial counsel was not asked “why” he failed to object to any portion of the closing
argument. The court found that “[t]he decisions of a trial attorney as to whether to object
to opposing counsel’s arguments are often primarily tactical decisions.” The post-
conviction court determined that the Petitioner failed to established deficient performance
or prejudice, and also noted that “since the[se] matters were not properly contested at the
time of trial, they would have been deemed ‘waived’ for purposes of appellate review . . .
Counsel pursued his strongest issues in the direct appeal.” It is from this order that the
Petitioner now timely appeals.
ANALYSIS
On appeal, the Petitioner argues that trial counsel was ineffective for failing to
object to inadmissible testimony during trial and that trial counsel failed to object to the
State’s improper remarks during closing argument. The Petitioner further contends that
trial counsel’s cumulative errors were prejudicial and entitle him to relief. The State
responds that the Petitioner received effective assistance of counsel and that the
cumulative error doctrine does not entitle the Petitioner to relief. Upon review, we agree
with the State.
We begin our review of these issues by acknowledging that post-conviction relief
is only warranted when a petitioner establishes that his or her conviction is void or
voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-103. The
Tennessee Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal unless
the evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of
their testimony are matters for the trial court to resolve. The appellate
court’s review of a legal issue, or of a mixed question of law or fact such as
a claim of ineffective assistance of counsel, is de novo with no presumption
of correctness.
1
The Petitioner raised two additional arguments in his petition for post-conviction relief.
However, a footnote in the Petitioner’s brief states, “[b]ased on the record on appeal, including the
testimony elicited during the post-conviction evidentiary hearing, Appellant chooses not to address
grounds (3) and (4) in this brief.” The post-conviction court addressed all of the Petitioner’s issues in its
order denying relief; however, this opinion will focus solely on the two issues addressed in the
Petitioner’s brief.
-7-
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. State,
354 S.W.3d 266, 276 (Tenn. 2011). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).
In Vaughn, the Tennessee Supreme Court repeated well-settled principles
applicable to claims of ineffective assistance of counsel:
The right of a person accused of a crime to representation by counsel is
guaranteed by both the Sixth Amendment to the United States Constitution
and article I, section 9, of the Tennessee Constitution. Both the United
States Supreme Court and this Court have recognized that this right to
representation encompasses the right to reasonably effective assistance, that
is, within the range of competence demanded of attorneys in criminal cases.
Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).
In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668,
687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim. Indeed, a court need not address the components in any particular order
or even address both if the [petitioner] makes an insufficient showing of one component.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,
466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated
once the petitioner establishes “‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). In order to satisfy the
“prejudice” requirement in the context of a guilty plea, the petitioner must show that, but
-8-
for counsel’s errors, he would not have entered his guilty plea and would have proceeded
to trial. Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474
U.S. 52, 59 (1985)).
We note that “[i]n evaluating an attorney’s performance, 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.” State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular
set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,
we note that this “‘deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).
The Petitioner argues that trial counsel was ineffective for failing to object to
inadmissible testimony from his co-defendant, the victim’s mother. He asserts that trial
counsel allowed the co-defendant to testify about an alleged incident where the victim
touched the Petitioner’s “balls”, and he said “it felt good to him.” The Petitioner further
contends that this evidence was “both wholly irrelevant and highly prejudicial to [the]
Petitioner,” and trial counsel’s failure to object “contributed to the State’s ability to
impugn [the] Petitioner’s character in a manner not allowed by Tennessee [l]aw.” The
State responds that trial counsel’s decision was strategic and that trial counsel provided
effective assistance of counsel. We agree with the State.
At the post-conviction hearing, trial counsel testified that he decided not to object
to this testimony and instead cross-examined the co-defendant about this incident. He
further testified that he did not want to “draw attention” to the statement by objecting and
decided that a thorough cross-examination was the appropriate decision. It is well
established that this court will not “second guess’ tactical and strategic choices pertaining
to defense matters or to measure a defense attorney’s representation by ’20-20
hindsight.’” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997) (quoting Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982)). The post-conviction court concluded that trial
counsel’s decision was strategic and that trial counsel’s performance was not deficient.
We agree, and conclude that the record shows that trial counsel made a well-informed
and reasoned decision under the circumstances not to object to the testimony at issue.
The Petitioner has failed to establish either deficient performance or prejudice resulting
therefrom. He is not entitled to relief.
Next, the Petitioner argues that trial counsel was ineffective for failing to object to
the State’s remarks during closing argument. The Petitioner contends that trial counsel
-9-
should have objected to the following remarks: (1) “[The Petitioner’s] guilty. There’s no
question about that. We don’t need to argue about that, and frankly that’s not why we’re
here. . . .” and (2) “[The Petitioner] is the same kind of guy, the same kind of guy that
would say, not my baby, not my problem, the same kind of cold blooded guy that would
punch a little girl, that’s about this tall and weighs about twenty-one pounds in the
abdomen, time and time again.” Later, during its rebuttal, the Petitioner claims the State
argued that the jury “should disregard impeaching evidence of a critical witness,” and the
jury should return a guilty verdict because they were “good community members.” The
Petitioner asserts that the “collective impact of these statements prejudicially undermined
the fundamental fairness of [the Petitioner’s] trial.” The State contends that trial counsel
reasonably decided not to object during the State’s closing argument and that the
Petitioner failed to established that trial counsel was ineffective. We agree with the State
The Tennessee Supreme Court has stated that closing argument is a “valuable
privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156 (Tenn.
2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978) (citation omitted)). As a
result, attorneys have considerable leeway in arguing their positions during closing
argument. Id. The closing argument, however, “must be temperate, must be predicated
on evidence introduced during the trial of the case, and must be pertinent to the issues
being tried.” Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Furthermore, “the
reviewing court must indulge a strong presumption that the [counsel’s] conduct falls
within the range of reasonable professional assistance and may not second-guess the
tactical and strategic choices made by counsel unless those choices were uninformed by
inadequate preparation.” Gregory Paul Lance v. State, No. M2005-01765-CCA-R3-PC,
2006 WL 2380619, at *6 (Tenn. Crim. App. Aug. 16, 2006) (internal citations omitted).
In denying relief, the post-conviction court concluded that trial counsel made a
strategic decision not to object and that the Petitioner offered no evidence as to “why”
trial counsel failed to object. See Robby Lynn Davidson v. State, No. M2005-02270-
CCA-R3-PC, 2006 WL 3497997, at *7 (Tenn. Crim. App. Dec. 4, 2006) (concluding that
“[t]he decisions of a trial attorney as to whether to object to opposing counsel’s
arguments are often primarily tactical decisions.”). Citing State v. Sexton, 386 S.W.3d
371, 429 (Tenn. 2012), the post-conviction court found that “without testimony from trial
counsel as to ‘why’ he chose not to object to a statement, the court must assume it was a
valid tactical decision.”
The Petitioner raised several issues with the State’s closing argument, but during
the post-conviction hearing, trial counsel was only questioned about one specific portion
of the State’s closing argument. Post-conviction counsel asked trial counsel if it was
“part of some kind of strategy to let [the State] say that [the Petitioner] is guilty,” and trial
counsel responded that the State was typically allowed to make such comments during
- 10 -
closing, and an objection would have been unsuccessful. Moreover, trial counsel testified
that this remark was “close” to being “objectionable,” but ultimately decided not to
object. The post-conviction court concluded, and we agree, that trial counsel made a
strategic decision not to object. See Henley, 960 S.W.2d at 579 (quoting Hellard, 629
S.W.2d at 9). The Petitioner is not entitled to relief.
The Petitioner also argues that trial counsel should have objected when the State
referred to the Petitioner as a “cold blooded guy that would punch a little girl, that’s
about this tall and weighs about twenty-one pounds in the abdomen, time and time
again.” The Petitioner also claims that the State’s remarks on rebuttal were improper and
trial counsel was ineffective for failing to object. The Petitioner argues that this
statement was an “improper disparagement of [the] Petitioner’s character.” However, at
the post-conviction hearing, trial counsel’s response was vague and did not provide a
clear explanation for his decision not to object. Moreover, there is no testimony from
trial counsel explaining why he did not object to the State’s remarks during its rebuttal.
Based on the record before us, we cannot conclude that trial counsel was deficient. See
State v. Sexton, No. M2004-03076-CCA-R3-CD, 2007 WL 92352, at *5 (Tenn. Crim.
App. Jan. 12, 2007). The burden was on the Petitioner to establish trial counsel’s
deficient performance, and the Petitioner failed to meet that burden. We agree with the
post-conviction court’s conclusion that “without testimony from trial counsel as to ‘why’
he chose not to object to a statement, the court must assume it was a valid tactical
decision.” Accordingly, he is not entitled to relief.
Finally, the Petitioner argues that the cumulative effect of trial counsel’s errors
entitles him to relief because it is “reasonably probable that [the] Petitioner’s trial and
direct appeal could have had a significantly different outcome.” The cumulative error
doctrine recognizes that in some cases there may be multiple errors committed during the
trial proceedings, which standing alone constitute harmless error; however, considered in
the aggregate, these errors undermined the fairness of the trial and require a reversal.
State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). However, the cumulative error doctrine
properly applies only where there has been more than one actual error. Id.; See also,
Tracy F. Leonard v. State, No. M2006-00654-CCA-R3-PC, 2007 WL 1946662, at *21
(Tenn. Crim. App. Sept. 13, 2007) (“[A] Petitioner who has failed to show that he
received constitutionally deficient representation on any single issue may not successfully
claim that his constitutional right to counsel was violated by the cumulative effect of such
counsel’s errors.”). Because the Petitioner has failed to prove deficient representation on
any issue, he cannot successfully claim that the cumulative effect of counsel’s
performance violated his constitutional rights. The Petitioner is not entitled to relief.
CONCLUSION
- 11 -
Based on the above reasoning and authorities, we affirm the judgment of the post-
conviction court.
_______________________________
CAMILLE R. McMULLEN, JUDGE
- 12 -