        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs October 29, 2014

       RICHARD CLEVELAND MARTIN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                   No. 2005-D-2955     Cheryl A. Blackburn, Judge


               No. M2013-02480-CCA-R3-PC - Filed November 17, 2014


Petitioner, Richard Cleveland Martin, was convicted of first degree premeditated murder and
first degree felony murder committed during the perpetration of or attempt to perpetrate a
kidnapping. Following merger, the trial court sentenced him to life in prison. After an
unsuccessful direct appeal, petitioner filed this petition for post-conviction relief alleging the
following claims of ineffective assistance of counsel: (1) failure to ensure that petitioner
understood the trial process; (2) failure to request a mental health examination; (3) failure to
view the crime scene or interview and develop potential witnesses; and (4) failure to analyze
or review a supplemental DNA Report. Upon our review, we affirm the judgment of the
post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS
and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Kara Everett, Nashville, Tennessee, for the appellant, Richard Cleveland Martin.

Herbert H. Slatery, III, Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                               I. Facts and Procedural History

       This court summarized the facts from petitioner’s trial in our opinion denying him
appellate relief:
        This case relates to the death of Angela Richards. At the trial, Jenna
Marie Richards, the victim’s daughter, testified that she met the defendant at
a 2002 Narcotics Anonymous meeting, to which she had accompanied her
mother. She said her mother had a substance abuse problem with prescription
drugs for as long as she could remember. She stated she met with the
defendant five to seven times after that meeting, and she identified him in the
courtroom. She said that while she and her brother lived in Florida at the time
of trial, her mother had moved to Nashville in September 2004 “to get a fresh
start” and to be away from the defendant. She said that her mother and the
defendant had been in a relationship and that she and her brother objected to
it. She said she and her brother had told their mother that they did not want to
have anything to do with her as long as she continued to associate with the
defendant. She stated that she spoke on the telephone with her mother at least
once or twice weekly, although she said she had not visited her mother in
Nashville and did not know where she had been living. She said she only
learned the defendant had been in Nashville when she came to Knoxville after
her mother’s death and spoke with a detective.

        Ilesh Patel testified that he was the manager of the Madison Motel
where the victim had been found in the defendant’s room on July 14, 2005. He
said the defendant, whom he identified in the courtroom, stayed at the motel
from May 16 through July 2005. He said that the defendant listed his
employer as Labor Finders and his home as Lake Park, Florida. Patel stated
that he knew the defendant had a girlfriend who sometimes stayed with him at
the motel. He said this girlfriend’s first name was Angela. He said that there
had been an incident two days before the discovery of the victim’s corpse
when the defendant and Angela had been arguing. He said the defendant came
to the manager’s office that afternoon for Patel to tell Angela to leave. Patel
said he told her to leave the motel because the room was not registered in her
name. He said that was the last time he saw Angela alive. He said he saw the
defendant the next afternoon or early evening. He said that the following day,
when housekeeping arrived to service the room, his employee had difficulty
opening the door. He said the motel’s normal practice was to clean the guest
rooms every second day. He said that the employee came to his office and that
he went to the defendant’s room, where he saw Angela lying on the bathroom
floor.

....




                                      -2-
         William Kirby, an officer with the Metropolitan Nashville Police
Department’s Identification Crime Scene Section, said he arrived on July 14,
2005, around 12:45 p.m. He said his department documents the crime scene
and collects and processes evidence. He explained how fingerprints are
discovered and recovered from crime scenes. He said that from the doorway
of the hotel room, he saw the victim lying face down at the base of the
commode on the bathroom floor and that there was a large “blood spot” on the
stripped mattress to his left. He said that the victim’s face and hands had been
bound with tape, that the victim had a washcloth in her mouth, that her ankles
had been bound twice with a belt and another article of clothing, and that the
victim had been tied to the commode using a telephone cord. He said items,
including the contents of a purse, had been thrown around the room. He said
the bloodstains, both wet and dried, on the mattress continued over the edge
of the bed onto the floor. He said that a drop of blood was on a pair of shower
shoes, that bloodstains were on a rug, and that papers were scattered on the
floor. He said he saw two wet, bloodstained shirts in the sink. He said that a
roll of tape was on the floor and that it appeared to be the same kind of tape as
the tape binding the victim. He said the telephone cord missing from the
telephone receiver and base was tied around the victim’s hands and around the
commode. He said a note on the nightstand read: “I’m sorry I don’t know
what happened I loved her Call her son, Nick Richards. WPB Fla. My Dad
Harold Martin 954 973 4233.”

....

        Charles Hardy, of the Tennessee Bureau of Investigation’s Serology and
DNA Analysis Unit, testified that he had known DNA samples from the
defendant and the victim with which to compare the physical evidence taken
from the hotel room and a sexual assault kit taken from the victim. He said he
obtained “a mixture of a DNA profile” from the victim’s fingernail scrapings,
which meant that he had profiles from two people. In the report of his findings
provided as discovery, he identified the victim as the “major contributor” to
the genetic profile, and he wrote that the defendant “cannot be excluded as the
minor contributor.” He testified that in his scientific opinion, the defendant
was the minor contributor of the profile developed from the victim’s fingernail
scrapings. He said that although he “normally would not report out statistical
calculations” of the probability that someone other than the defendant would
have this DNA profile, the District Attorney requested that he generate
statistics for the areas of the DNA mixture in which the defendant’s profile had
been visible. He stated he developed statistics for these five areas in a

                                       -3-
subsequent report in which he stated the probability that someone unrelated to
the defendant would have this genetic profile was 1 in 786,200 for Caucasians;
1 in 8,842,000 for African-Americans; 1 in 2,124,000 for the southeastern
Hispanic population; and 1 in 20,700,000 for the southwestern Hispanic
population.

        On cross-examination, Hardy testified that the DNA profile from each
bloody item was the defendant’s. He said his scientific opinion had not
changed since he wrote his initial report. He said that his “conservative”
statement that the defendant “cannot be excluded as the minor contributor of
the profile” from both the vaginal swab and fingernail scrapings was consistent
with his trial testimony that the defendant was “the minor contributor” of the
profiles. He stated that he generated these subsequent statistics for the
fingernail scrapings only because the District Attorney had not requested
statistics for the vaginal swab material. On redirect-examination, Hardy
testified that he and defense counsel did not meet before trial, but that he had
met with other defense attorneys in other cases, and that he would have met
with defense counsel if asked. On recross-examination, he said that defense
counsel did not call to request a meeting between the Thursday evening when
he gave the subsequent report to the District Attorney and the Monday
morning trial date.

        Bruce Phillip Levy, the Chief Medical Examiner for the State of
Tennessee and the County Medical Examiner for the Metropolitan
Government of Nashville and Davidson County, testified that he certified the
results of the autopsy, which another medical examiner performed on July 15,
2005, the day after the victim’s body was discovered. He said that the cause
of death of the victim was asphyxia and that the manner of death was a
homicide. He said that the victim had been pronounced dead at 2:30 p.m.

        Dr. Levy testified about the body’s condition after the examiner had
removed the tape and bindings. He said that the victim had scrapes and
bruises, swelling around her eyes, and ruptured blood vessels in the whites of
her eyes. He said that these ruptured blood vessels could have been caused by
both trauma and asphyxia and that because the victim had experienced both,
he could not determine which caused the victim’s ruptured blood vessels. He
said the victim had injuries on her face, her left shoulder, the right side of her
chest, both arms at the elbows, her legs, and her hands and wrists. He said that
sloughing of the skin on her right leg indicated that “some period” had elapsed
between her death and the time of the autopsy the day after she had been

                                       -4-
found. He said the victim had bleeding under the scalp in four specific
locations: a large area on the left side, a smaller area on the right side, the
forehead, and the back of the head. He said these four injuries were caused by
“some type of blunt trauma” to the head, consisting of at least four separate
blows. He stated that injuries on the victim’s face, particularly around the
victim’s eyes, were caused by at least three blows other than those that caused
the four scalp bleedings. He stated that although there was “no way to tell”
from the victim’s autopsy if her injuries had caused her to lose consciousness,
it “was certainly a possibility.”

       Dr. Levy testified that because the victim’s nose and mouth had been
blocked due to the “wrappings around her face and the towel in her mouth,”
the victim had been unable to breathe. He said that “irreversible brain
damage” requires at least four minutes of oxygen deprivation. He stated that
the victim was alive at the time she was bound with the cords and clothing
because (1) there was no evidence that the victim died from blunt trauma and
the victim in fact died from asphyxia; and (2) her wrists, one of the places she
had been bound, were bleeding, thereby indicating she had both a heartbeat
and blood pressure. He said that it was difficult to state precisely how long
someone had been dead using autopsy observations because there was a “lot
of variety from person to person” and certain factors can increase or hinder the
development of post-mortem physical signs. He said that using the
information gathered in the examination alone, the victim had been dead for
twenty-four hours before the autopsy. He said that “historical information,”
however, provided that the victim was alive “approximately eighteen hours”
before the examiner made his findings. He stated that the autopsy findings
were consistent with a statement that the victim had been dead at 7 a.m. on
July 14, 2005. He said the victim was 5’3”and weighed 136.5 pounds.

....

       Ronald Petway testified that the defendant, whom he identified in court,
told him that he had killed his girlfriend. He said the defendant claimed he
“blacked”; killed his girlfriend, “Angie”; and realized what he had done when
he “came back to his senses.” Although he said the defendant did not tell him
precisely how he had killed his girlfriend, he said the defendant did tell him
that she was tied to the toilet and that she had died from strangulation or
suffocation. He claimed the defendant told him that he killed his girlfriend
because he and she had a “real bad argument” and that he could not bear the
arguments any longer. He stated the defendant told him that he had fled

                                      -5-
       because “he had a hold on him” and that he had attempted suicide by cutting
       his arm. He said the defendant told him no evidence found at the crime scene
       linked him to the crime. He particularly remembered the defendant saying that
       his fingerprints were not on the tape found at the crime scene. He said the
       defendant told him, however, that because he and the girlfriend had intercourse
       a few days before the victim’s death, the defendant was worried any DNA
       analysis would show that he raped her. He claimed the defendant had revealed
       he was going to tell the police that his girlfriend’s drug dealer killed her over
       a debt. He said the defendant told him he “was heavily on drugs” and used
       them a lot. He also said the defendant stated that drug use made him violent.
       He said the defendant told him that he had kicked his girlfriend through a door
       the day before the killing. He stated the defendant told him that he had choked
       his girlfriend at a bowling alley after an argument, too.

       ....

       The videotape of the interrogation was admitted into evidence . . . .

               Initially, the defendant gave the appearance of not knowing that his
       girlfriend, the victim, was dead. However, [a] . . . timeline developed from his
       responses . . . .

       ....

               After additional questioning, a second story developed . . . He denied
       killing his girlfriend.

       ....

             The jury found the defendant guilty of both first degree premeditated
       murder and first degree felony murder. The trial court merged the felony
       murder conviction with the premeditated murder conviction and sentenced the
       defendant to life in prison for first degree premeditated murder.

State v. Richard Martin, No. M2007-02097-CCA-R3-CD, 2009 WL 1372287, at *1-12
(Tenn. Crim. App. May 18, 2009), perm. app. denied (Tenn. Oct. 5, 2009). Following
petitioner’s unsuccessful direct appeal, he filed a timely petition for post-conviction relief
on September 20, 2010. The post-conviction court appointed counsel, who filed an amended
petition on July 25, 2011.



                                              -6-
                                  II. Post-Conviction Proceedings

        An evidentiary hearing was held on the petition for post-conviction relief on August
17, 2011, at which petitioner testified on his own behalf and presented the testimony of trial
counsel.1 Trial counsel testified that he was licensed to practice law in 1976 and had been
employed with the Davidson County Public Defender’s Office for twenty-four years. His
representation of petitioner began on April 19, 2006. Petitioner raised several claims of
ineffective assistance of trial counsel, and the testimony relevant to each claim will be set
forth in our analysis of the issue.

                                        A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

       The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,


        1
          Petitioner also called appellate counsel as a witness, but because he has abandoned any claims with
regard to ineffective assistance of appellate counsel, we have omitted any reference to his testimony.

                                                    -7-
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).




                                               -8-
                     B. Ineffective Assistance of Counsel Resulted in
                     Petitioner’s Failure to Understand the Trial Process

       Petitioner claimed that he did not have an understanding of the trial process, the
elements of the crimes, or what would be required of the prosecution to convict him. Trial
counsel recalled that “from the beginning of the appointment until the conclusion of [his]
representation[,] [he] . . . had twenty-one contacts with [petitioner] for a total of 10.6 hours.”
“Contacts” included telephone calls, short visits at the courthouse, and visits at the jail, which
varied in length. During one of their meetings, trial counsel reviewed the discovery with
petitioner and discussed the proof and evidence against him. Trial counsel maintained that
he was able to “adequately and sufficiently explain the evidence” and “the definitional
elements of the crimes” to petitioner.

         Petitioner testified that he had “enough of an opportunity to speak to [trial counsel]
about questions in regards to [his] case.” Trial counsel reviewed discovery with him, but
petitioner did not “feel” that trial counsel explained the elements of the criminal offenses to
him. Petitioner said that he had questions about the criminal trial process and that he did not
obtain a thorough understanding of it from trial counsel. On cross-examination, he stated
that he had been “in a fog” from the medication during the entire period from arraignment
to trial and that his condition had been a contributing factor to his lack of understanding the
process. Petitioner acknowledged that at the time of trial, he was aware that jurors would
determine his guilt or innocence, that he would have an attorney, that there would be
prosecutors, that witnesses would testify, and that physical evidence would be introduced.

       The post-conviction court concluded that “[n]othing in the record shows that trial
counsel failed to meet with petitioner or keep him informed of the proceedings.” We agree
with this assessment. The record reflects that trial counsel met with petitioner, reviewed
discovery, and informed him about the charges against him and the trial process. Petitioner
has not specified how trial counsel performed ineffectively or how he was prejudiced by this
alleged shortcoming. Petitioner is not entitled to relief on this claim of error.

                    C. Ineffective Assistance of Counsel for Failure to
                          Request a Mental Health Examination

        Petitioner argues that trial counsel failed to order a mental health examination despite
his history of mental health-related hospitalizations and suicide attempts and that such failure
was highlighted at trial when petitioner became dizzy and nauseated because of a change in
his medications.




                                               -9-
       Trial counsel testified that although he discussed petitioner’s mental health history
with him, he did not seek an independent mental health evaluation of petitioner. However,
he obtained records from Middle Tennessee Mental Health Institute (“MTMHI”) for
petitioner’s admission shortly following the commission of the crimes. Petitioner had
admitted himself using the alias “Harlin Wells.” The admission related to suicidal ideations,
drug usage, and “possibly even cutting on himself.” Trial counsel stated that “nothing from
that evaluation . . . implied an ongoing question of competence to stand trial[,] [a]nd from
[his] personal contact with [petitioner][,] [trial counsel] did not detect any incompetence to
do so.” He continued, “Nor was there any suggestion from that contact immediately after the
incident that he was insane at the time of the commission of the offense.” Trial counsel
characterized petitioner as “alert, able to process the information, had thoughts and ideas
about his case, some of which were good.”

        Furthermore, trial counsel opined that “an insanity defense presumed that one
committed the act but lacked the intent because of their . . . mental condition” and that
petitioner denied committing the crimes. He said, “A mental health defense would have had
to put us in a posture of “we . . . were saying he didn’t do it but if he did do it[,] then he was
crazy[,] [which] [is] not a very effective representation.” Trial counsel did not recall
announcing to the court during the trial that petitioner was not feeling well or that he had
suffered side effects from a medication.

       Petitioner testified that he told trial counsel that he had passed out once due to the
change in his medication and that he had fallen and cut his eye when it occurred. He also
maintained that he was not feeling well enough to make decisions during the trial and that
he informed trial counsel as such. He indicated that jail personnel continued to “up” his
medication, and he opined that it was because he had attempted suicide and they were trying
to keep him stable. For that reason, he did not complain to jail personnel about the effects
he was feeling.

         The post-conviction court determined that despite his claims to the contrary, petitioner
testified that he had an understanding of the roles of the various parties and witnesses and
that he understood the charges against him. It further concluded that petitioner had not
established deficient performance or prejudice. We agree with the post-conviction court.
Specifically, we note that “if a petitioner seeks to establish deficient performance based upon
trial counsel’s failure to employ an expert witness, then it is incumbent upon the petitioner
to call a witness at the post-conviction hearing to establish that the witness’s testimony would
have benefitted the petitioner and that prejudice has resulted.” Anthony M. Clark v. State,
No. M2006-01176-CCA-R3-PC, 2007 WL 2295583, at *9 (Tenn. Crim. App. Aug. 6, 2007)
(citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). Petitioner has
established neither deficient performance nor prejudice, and he is not entitled to relief.

                                              -10-
        D. Ineffective Assistance of Counsel for Failure to View the Crime Scene
    or Interview and Develop Potential Witnesses Whose Names Petitioner Provided

        Petitioner asserts that trial counsel neither viewed the crime scene nor developed a
witness to testify on petitioner’s behalf. Petitioner said that he supplied trial counsel with the
names of potentially exculpatory witnesses from the motel, the bowling alley where the
victim was employed, and the labor office where petitioner was employed. Trial counsel
testified that at his behest, another assistant district public defender went to the motel to
interview the owner/operator, Mr. Patel, who discovered the victim’s body. Although trial
counsel’s file was devoid of any further information with regard to the interview, he
“assume[d]” that they did so. He recalled that Mr. Patel was “extensively” questioned by the
police. Trial counsel further stated that he did not interview any of the residents of the motel
and that his file bore no indication that anyone did so at his direction. He was unaware of
whether anyone from the bowling alley was interviewed and stated that if someone from his
office had made a contact there, “it certainly wasn’t a significant one.” Neither did they
question anyone from petitioner’s employment who may have witnessed petitioner and the
victim together on previous occasions. Trial counsel did not think it was relevant to present
testimony that petitioner and the victim had shared good times together in their relationship.

       Petitioner stated that he provided trial counsel with the names of potential witnesses,
including people from the bowling alley where the victim had been employed and the labor
office where he had been employed. He said that witnesses from the bowling alley would
have testified that they never heard him raise his voice to the victim and that they “definitely”
never saw him reach across the counter and choke her. They would further have stated that
he brought her breakfast on the weekends and dinner during the week. He also walked her
to and from work because of the neighborhood where they lived. Petitioner expressed that
people from his employment would have testified similarly about their holding hands and
being “lovey dovey.”

          The post-conviction court noted that petitioner did not present at the post-conviction
hearing any of the witnesses whom he wanted trial counsel to develop and that he, therefore,
failed to demonstrate prejudice resulting therefrom. We agree with the post-conviction
court’s assessment. “To succeed on a claim of ineffective assistance of counsel for failure
to call a witness at trial, a post-conviction petitioner should present that witness at the
post-conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (citing Black,
794 S.W.2d at 757). “‘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 enured to the prejudice of the petitioner.’” Id. (quoting
Black, 794 S.W.2d at 757). Without such testimony, the post-conviction court is unable to



                                               -11-
ascertain whether failure to call the witness enured to petitioner’s prejudice. For his failure
to present those witnesses at the post-conviction hearing, petitioner is not entitled to relief.

             E. Ineffective Assistance of Counsel for Failure to Analyze or
            Review a Supplemental DNA Report Provided on the Eve of Trial

        Petitioner maintains that trial counsel did not analyze or review the DNA report that
was provided to him just prior to trial and that he was prejudiced by this failure because the
State’s expert provided inaccurate and incriminating testimony and petitioner could not refute
it because of trial counsel’s unfamiliarity with the document. Trial counsel received
supplemental discovery on the Friday prior to the trial beginning on Monday. He described
it as “one page of data.” At first glance, trial counsel thought the document was unimportant;
it appeared to be an “insignificant” numerical base for forthcoming testimony. However,
trial counsel said that his understanding had been “completely wrong.” He said that the
special agent’s testimony at trial differed from the content of his report and that at trial, he
gave “a much more definitive statement indicating the presence of [petitioner’s] DNA in a
couple of the samples that were mentioned.”

       Trial counsel explained that he was provided the document by an assistant district
attorney who was not involved in petitioner’s prosecution. Therefore, no one was available
who understood the contents of the document. When he reviewed it later that day, he
ascertained that he had no idea what it was. He admitted that he “should have been more
vigorous in trying to find out what the columns of data were.”

        On cross-examination, trial counsel acknowledged that petitioner and the victim had
been in a romantic relationship and that petitioner had admitted that the victim had scratched
him. The DNA report had indicated that the DNA under the victim’s fingernails contained
a combination of the victim’s and petitioner’s DNA. However, trial counsel attempted to
draw a distinction between the original report that read, “‘[Petitioner] cannot be excluded as
a contributor,’” and, “‘[T]he chances [that] someone else was the contributor were one in .
. . 786,2000 Caucasian males.” Trial counsel viewed that assertion as being “a lot more
certain than saying he can’t be excluded.” As to his preparation for trial, counsel indicated
that had the original report been more definitive, he might have been “inspired” to consult
with an expert in DNA to challenge the “statistical projections.” In his testimony, petitioner
simply said that he could not recall whether trial counsel attempted to explain the
supplemental discovery to him.

        The post-conviction court noted that this issue had been raised and addressed at trial
in a jury-out hearing and on direct appeal. Post-conviction relief is not available to relitigate
issues that have been raised and litigated on direct appeal. Forrest v. State, 535 S.W.2d 166,

                                              -12-
167 (Tenn. 1976). Excerpts from this court’s opinion on petitioner’s direct appeal are set
forth above. It is clear that trial counsel raised the difference between the original DNA
report and the expert’s testimony at trial in a jury-out hearing on a motion for a mistrial and
that disclosure of the supplemental report was not timely. Richard Martin, 2009 WL
1372287, at *22-23. The trial court noted that because the jury would hear petitioner’s
statement wherein he admitted that the victim scratched his neck, his being a “minor
contributor to the DNA profile developed from the victim’s fingernail scrapings would not
be surprising to either party.” Id. This court agreed that the trial court did not err in denying
petitioner’s motion for a mistrial on this basis. Id.

                                       CONCLUSION

       Based on the record as a whole, the briefs of the parties, and the applicable legal
authority, we affirm the judgment of the post-conviction court.


                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




                                              -13-
