        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 22, 2010

                  JAMES R. SMITH v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Putnam County
                       No. 03-0826    David Patterson, Judge




               No. M2009-02077-CCA-R3-PC - Filed November 29, 2010


Following a jury trial, the Petitioner, James R. Smith, was convicted of one count of rape, a
Class B felony, one count of sexual battery, a Class E felony, and one count of attempted
false imprisonment, a Class B misdemeanor. See Tenn. Code Ann. §§ 39-12-107(a), -13-
302(b), -13-503(b), -13-505(c). This Court affirmed his convictions on direct appeal. See
State v. James R. Smith, No. M2005-00615-CCA-R3-CD, 2006 WL 264468 (Tenn. Crim.
App., Nashville, Jan. 31, 2006), perm. to appeal denied, (Tenn. May 1, 2006). The Petitioner
filed a timely petition for post-conviction relief. Following an evidentiary hearing, the
post-conviction court denied relief. In this appeal, the Petitioner contends that the
post-conviction court erred in denying him relief because his rights to due process and a fair
and impartial jury were violated when five jurors ate lunch at the same table as the court
clerk and two potential State witnesses. He also asserts that his trial counsel was ineffective
because he (1) did not file any pretrial motions besides a request for discovery; (2) should
have asked the trial court to declare a mistrial when he learned about the lunch incident; (3)
failed to ask the jurors what they talked about at lunch; and (4) failed to raise the lunch
incident in his direct appeal. After our review, we affirm the post-conviction court’s denial
of relief.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Robert Luke Chaffin, Cookeville, Tennessee, for the appellant, James R. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant
Attorney General; William E. Gibson, District Attorney General; and Anthony Craighead,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                   OPINION

                             Factual Background
                                     Trial

In the Petitioner’s direct appeal, we summarized the underlying facts as follows:

        At trial the victim, [J.A.], testified that on September 14, 2003, she
walked her dog from her house down Broad Water Branch Road in rural
Putnam County, as was her custom. On the return trip, a man she identified
as the [Petitioner] pulled up next to her in a red Jeep and inquired about the
ownership of a nearby house. When the victim responded that she did not
know, the vehicle pulled away, but drove past twice more. Upon again
stopping next to the victim, the [Petitioner] asked if the vehicle in the driveway
of her home was for sale. The victim responded that he would have to ask the
owner of the vehicle. The [Petitioner] reached down to get a piece of paper,
wrote a number on it, and handed it to the victim. As she reached for the
paper, he quickly exited the vehicle and apprehended her.

        The victim stated that the [Petitioner] held a green and black utility
knife to her throat and ordered her to perform oral sex on him. She complied,
noting at trial that this went on “[a] few minutes,” until he pulled her head
back and attempted to kiss her. When she resisted, he again ordered her to
perform oral sex on him, with this episode lasting five to ten minutes. The
[Petitioner] then pulled the victim to her feet, removed her shirt, and began
touching her breasts while pushing her toward his vehicle. The victim testified
that the [Petitioner] threw the utility knife into the seat of the vehicle and
attempted to push her into the vehicle. When she resisted, the [Petitioner]
pinned her against the back door, removed her pants, and performed oral sex
on her for approximately five to ten minutes. She testified that the assailant
again tried to kiss her and stated, “We can do what you want now.” The victim
responded by saying, “Why aren’t you letting me then?” The [Petitioner] then
apologized and said, “[I] didn’t hurt you, at least not physically. I didn’t beat
you or anything.” The victim was able to escape and ran home.

        Upon returning home, the victim went into her mother’s bedroom and
sat in a chair until her mother awakened. She testified that she was unable to
tell her mother what happened until approximately 3:00 p.m. because she was
stressed and frightened. She later told her older brother Peter what happened,

                                       -2-
and took a shower and washed her clothes because she “felt dirty.” The victim
stated that the [Petitioner] passed by her house “[a]t least three times” in his
vehicle and that a family friend was eventually able to obtain the license plate
number.

        Approximately three hours after the incident, the victim’s mother
telephoned Genesis House1 and the Putnam County Sheriff’s Department to
report the incident. The victim related the incident to the responding deputy
and turned over the license plate number and the receipt that the [Petitioner]
handed the victim. The victim testified that she did not know the [Petitioner]
and had never seen him before the incident.

        On cross-examination, the victim testified . . . that she had not had any
alcohol or drugs on the day of the incident and reiterated that she had never
seen the [Petitioner] before. The victim stated that she believed the
[Petitioner] got the utility knife out of his pocket and that he threw the knife
in the vehicle as she was performing oral sex on him. She acknowledged that
she did not seek medical treatment after the encounter and decided not to be
examined because of the amount of time that had passed following the
incident. The victim acknowledged that she told Officer Donnie Duncan that
she did not have any bruises. Although she attempted to run “several times,”
she stated that she did not scratch the [Petitioner] because she was “so scared
and stunned.”

        Ms. Ronney Anthony, the victim’s mother, testified that on the day of
the incident, she was asleep when the victim came into her bedroom. When
Ms. Anthony awakened, she saw the victim sitting in a chair “shaking like a
leaf, and very, very quiet.” Although she repeatedly questioned the victim, she
stated that it took “the best part of an hour to get any idea of what the matter
was.” Ms. Anthony testified that she decided to call Genesis House and the
Sheriff’s Department at approximately 3:00 p.m. because the [Petitioner’s]
vehicle had driven past their house four times. On cross-examination, Ms.
Anthony testified that she and the victim’s grandmother home schooled the
victim and that the victim enjoyed living in the country. She further stated that
she called Genesis House first because her foremost concern was for the
victim’s emotional state and safety.




1
    It appears from the record that Genesis House is an organization that aids abused women.

                                            -3-
        Peter Anthony, the victim’s older brother, testified that the victim was
in the kitchen when he arrived home from church on the day of the incident.
He recalled that the victim appeared to be “in shock,” her lips were blue, and
she was not talking. Although she initially did not speak of what happened,
over time she began to explain the incident “[i]n very simple language.” He
stated that the [Petitioner’s] vehicle passed by three times and that a family
friend was able to obtain the license plate number. Finally, Mr. Anthony stated
that the police responded approximately three hours after he arrived.

       ....

        Deputy Tony Branch testified that he was employed by the Putnam
County Sheriff’s Department and that he responded to the subject incident
between 5:30 and 6:00 p.m. He stated that when he arrived, the victim and her
mother were on the side porch of the house, and the victim was initially not
responsive. Deputy Branch stated that when the victim began talking, she gave
him the license plate number of the [Petitioner’s] vehicle; that it was radioed
in; and that officers were sent to the [Petitioner’s] residence. He further noted
that the victim gave a written statement of what had occurred. Finally, he
stated that he did not recall if the victim gave him the receipt the [Petitioner]
had given her. On cross-examination, Deputy Branch testified that, although
he had patrolled the victim’s house on his regular route, he did not know the
victim personally.

        Deputy Ed Henley testified that he was employed by the Putnam County
Sheriff’s Department and that he responded to the [Petitioner’s] house. When
he arrived, Deputy Henley asked the [Petitioner] to come outside to talk, to
which the [Petitioner] responded that this “must be about that little girl down
on the creek.” When Deputy Henley inquired as to what happened, the
[Petitioner] stated that he saw her and asked her to get in the vehicle, which
she did. The [Petitioner] then told Deputy Henley that he drove down a side
road and that the victim performed oral sex on him at his request. Deputy
Henley advised the [Petitioner] of his Miranda rights and asked him to again
recall the incident with the victim, which he did. On cross-examination,
Deputy Henley testified that he knew the [Petitioner] because of his previous
service as a sheriff’s department reserve.

       Detective Donnie Duncan testified that he was called to investigate the
subject incident. He stated that he did not take a rape kit because the alleged
act involved oral sex with no ejaculation. Detective Duncan stated that,

                                       -4-
although the victim turned over the receipt that the [Petitioner] gave her, it had
“been misplaced.” Detective Duncan recalled that the [Petitioner] stated that
he and victim had a previous sexual relationship.

        On cross-examination, Detective Duncan testified that he knew the
[Petitioner] because he served as chief while the [Petitioner] was a sheriff’s
department reserve. He stated that he had no problems with the [Petitioner] at
that time. He further stated that the victim did not call his attention to any
bruises and that he did not see any scratches or bruising on the [Petitioner]. He
stated that he did not recall whether he instructed the victim to see a doctor.

        Charles Hardy testified that he works at the Tennessee Bureau of
Investigation (TBI) crime lab as a serology and DNA analyst. He further
stated that there was no DNA or physical evidence in this case. Hardy noted
that he did not swab the inside of the victim’s mouth to check for the
[Petitioner’s] DNA because, “the odds of finding that suspect’s DNA are so
great . . . that you’re not going to get it, that it’s not something that we would
test for.” Hardy testified that even if a DNA match was obtained, it would not
indicate whether or not the contact was forced.

        The [Petitioner] testified that he had worked as a mechanic with the
Cookeville Housing Authority and as a cook at the Waffle House Restaurant.
He noted that he had previously participated as a volunteer firefighter and as
a sheriff’s department reserve. The [Petitioner] stated that he lived on his
father’s property in a shed that he converted into a one-bedroom apartment.
He testified that he had seen and been sexually involved with the victim three
months prior. The [Petitioner] stated that, at that time, he saw the victim
walking down the road and asked her if she needed a ride. Although she
refused, the [Petitioner] stated that they began talking, that they became
physically intimate, and that the victim performed consensual oral sex on him
in his vehicle.

       He stated that on this occasion, he saw the victim and she appeared to
recognize him from their earlier encounter. The [Petitioner] recalled that he
asked the victim about a nearby residence and that they began talking and
eventually kissing. He testified that the encounter again progressed to her
performing oral sex on him. Although the [Petitioner] stated that he did not
have a utility knife in his vehicle, he admitted that officers did find a steak
knife upon a consensual search of the vehicle, which he had used to trim wires



                                       -5-
on his headlight switch. Finally, the [Petitioner] stated that his only prior
arrest was for public intoxication in the mid-1980’s.

        On cross-examination, the [Petitioner] testified that after their first
encounter, he drove down the victim’s road one or two times “hoping [he]
might get lucky again.” Although he knew where the victim lived, he stated
that he never approached her house. The [Petitioner] indicated that he did not
ask about the car in the victim’s driveway and did not perform oral sex on her.
He estimated that their encounter lasted between fifteen and twenty minutes
and further stated that he wrote his phone number on the receipt because she
inquired as to how to contact him. The [Petitioner] testified that he did not try
to intimidate the victim and did not force her to perform oral sex on him. He
further stated that he “took off” when he realized that someone was attempting
to get his license plate number because the victim stated that she was “afraid
[that someone was] going to find out about this.”

        Billy Joe Smith, the [Petitioner’s] brother, testified that the [Petitioner]
came home between 12:00 and 1:00 in the afternoon and that he remained at
home until 3:00 or 3:30 p.m. On cross-examination, he testified that he lives
in the house with his father, while the [Petitioner] lives in the converted shed,
where he has resided for three years. Amy Smith Holloway testified that the
[Petitioner] is her father and that she spoke with him by phone at his home
between 1:30 and 2:30 p.m. On cross-examination, she testified that she talked
to the [Petitioner] for ten to fifteen minutes and admitted that she did not know
what happened after their conversation.

        Sara Bright testified that she was married to the [Petitioner] for five
years and that he has a good reputation for honesty and truthfulness. On
cross-examination, she stated that she and the [Petitioner] divorced in 1986
and that he has since remarried. Amanda Wright testified that she has known
the [Petitioner] for approximately four years as a co-worker at the Waffle
House and that he has a good reputation for honesty and truthfulness. On
cross-examination, she acknowledged that she has socialized with the
[Petitioner] outside of work only one or two times. Geneleta Ashburn testified
that she was previously employed at the Waffle House for sixteen years and
has known the [Petitioner] “as a very good friend.” She likewise stated that
he has a good reputation for honesty and truthfulness. On cross-examination,
she acknowledged that she has not worked with the [Petitioner] in two years,
but stated that she has made an effort to keep in touch with him by phone.



                                        -6-
                David Carlile testified that he has known the [Petitioner] for between
        fifteen and eighteen years and that he has a good reputation for honesty and
        truthfulness. On cross-examination, he admitted that he has not seen the
        [Petitioner] in two years. Additionally, the State stipulated that the testimony
        of Freddie Judd, owner of L & J Market, and Richard McBroom, fire chief and
        city manager of Baxter, would be consistent with the previously presented
        character witnesses. Following the presentation of evidence, the [Petitioner]
        was convicted of rape, sexual battery, and attempted false imprisonment.2

State v. James R. Smith, No. M2005-00615-CCA-R3-CD, 2006 WL 264468, at *1-5 (Tenn.
Crim. App., Nashville, Jan. 31, 2006) (footnotes in original), perm. to appeal denied, (Tenn.
May 1, 2006).

                                    Post-Conviction Hearing
        The Petitioner filed a timely petition for post-conviction relief on October 19, 2006.
In his petition, the Petitioner claimed that his trial counsel was ineffective for, among other
reasons, failing to ask the trial court to declare a mistrial after it was discovered that five
jurors ate lunch at the same table as the court clerk and two sheriff’s deputies who were
potential State witnesses, and failing to present the issue in his direct appeal. The Petitioner
also asserted that his due process rights were violated when the trial court failed to sua sponte
order a new trial after seeing the jurors at the same lunch table as the deputies. The
Petitioner’s post-conviction hearing was held on September 18, 2009.

         Judge Leon Burns testified that he presided over the Petitioner’s trial. He stated that,
although he did not remember the specific instruction he gave the jury during the Petitioner’s
trial, the standard instruction includes an admonition that jurors should not discuss the case
with any of the witnesses or attorneys in the case.3 Judge Burns recalled that he had “[s]ome
vague memory” of an incident during the Petitioner’s trial when he noticed that some
members of the jury, the court clerk, and two deputies were sitting at the same table in a
restaurant during lunch. He recalled that he thought he approached the table and told them



        2
         The record reflects that Count One was based upon the act of forced fellatio; Count Two on forced
cunnilingus; and Count Three on the [Petitioner’s] attempt to force the victim into the vehicle.
        3
          In fact, the Petitioner read the trial court’s admonition from the trial transcript into the record as
follows:
        [D]uring the course of the trial you should not talk with any witnesses, the [D]efendant or
        attorney involved in the case. Please do not talk with them about any subject whatsoever.
        You may see them in the hallway or on the elevator or . . . other locations. If you do,
        perhaps the best standing rule would be not to say anything to the participants.

                                                      -7-
to separate. Judge Burns also explained that he thought the jurors sat with the deputies
because it was crowded and it was the only place to sit down.

       Although Judge Burns did not have a specific recollection about what occurred after
he witnessed the jurors at the same table as the court clerk and two deputies, he said that it
seemed “like I did ask them about it.” However, he stated that he could not “specifically
remember what responses” he received. Judge Burns elaborated, “But if I did not declare a
mistrial, I must have come to the conclusion that there was no discussion about the case, that
it was just a casual contact there and they weren’t talking about the testimony in the case.
I found no prejudice, so I did not grant a mistrial.”

       Marcia Borys testified that she is the Circuit Court Clerk for Putnam County. She
recalled that she acted as the court clerk during the Petitioner’s trial. She also remembered
going to lunch, at the invitation of one of the jurors, with a group of jurors from the
Petitioner’s trial. Ms. Borys testified that two deputies, Donnie Duncan and Ed Henley, were
already eating at the restaurant that she and jurors went to. She added, “[T]he restaurant was
very crowded and we were headed toward the back. And Mr. Watts4 just said sit down and
so we did.” She recalled that Judge Burns later approached the table and told the jurors and
deputies that they should not be sitting together. Ms. Borys said that there was no
conversation about the trial at the lunch table and that the desputies “were very quiet and just
ate their lunch and left.” She also recalled that Judge Burns questioned her and the jurors
about the incident after they returned from lunch.

        Davis Watts testified that he was a juror in the Petitioner’s trial. He recalled that the
trial court instructed the jurors not to talk to the witnesses or attorneys in the case. Mr. Watts
stated that he and some of the other jurors had lunch at a small café across from the
courthouse. He “vaguely” remembered that there were two sheriff’s deputies at their table.
He testified that he did not remember any conversation between the jurors and the deputies.
Mr. Watts did recall that Judge Burns asked the group to disperse and commented that they
should not be sitting together. He also stated that Judge Burns questioned the jurors after
they came back from lunch. Mr. Watts explained that he did not know that the two deputies
were potential witnesses in the Petitioner’s trial.

        Hazel Lemka, also a juror in the Petitioner’s trial, testified that she remembered the
trial court telling the jurors that they were not to speak to the attorneys or witnesses in the
case. She said that, during the trial, a small group of the jurors went to the café across the
street for lunch and that Ms. Borys “might have” went with them. When asked if she


        4
         Davis Watts was one of the jurors from the Petitioner’s trial. He was also the juror who invited
Ms. Borys to go out to lunch with the group.

                                                  -8-
remembered sitting down at a table with two deputies, she replied, “I remember the place was
crowded and we had a short time. We got our tray and just sat down at the nearest empty
chair.” Ms. Lemka said she did not remember Judge Burns saying anything to the group
while they were at the restaurant, however, she did remember him speaking to them after
lunch. She recalled, “He asked if we had discussed anything, talked about anything that
happened in the courtroom or at the trial and we said no.” She said that, other than saying
hello, she did not speak to the deputies during lunch.

        Pamela Malone, another juror from the Petitioner’s trial, testified that she recalled that
Judge Burns instructed the jury that they could not talk to anyone who was participating in
the trial. Ms. Malone testified that she remembered going to lunch with the other jurors.
However, when asked if she remembered that two sheriff’s deputies were sitting at their
table, Ms. Malone maintained that the deputies were not seated at the same table as the
jurors. She also stated that the jurors did not talk about the trial during their lunch. Ms.
Malone said that she did not recall Judge Burns coming up to their table and speaking to
them during lunch. However, she did remember that he questioned the jurors individually
after they came back from lunch.

       John Magura, also a juror in the Petitioner’s trial, described the lunch outing in
question as follows:

       I believe I walked over there, got a plate of food, was looking for a place to sit
       down. I think that Mr. Watts asked me if I wanted to come and sit down. I sat
       down at the table, I believe Judge Burns came in, saw the two, I don’t even
       remember if there were two, but I just remember him coming over and that
       there were some deputies over there sitting in the vicinity, I couldn’t tell you
       if they were, these tables are real long, so there were multiple people sitting at
       the table. But I believe he said something to them and they got up and moved
       where they were sitting.

Mr. Magura testified that he did not remember Judge Burns questioning the jurors
individually after lunch. He also stated that he did not think that he discussed the trial with
anyone during lunch.

        Deputy Ed Henley, employed by the Putnam County Sheriff’s Department, testified
that he thought he was introduced to the jury as a potential witness during the Petitioner’s
trial. He recalled that he ate lunch with Chief Deputy Donnie Duncan, but that the two men
“[d]idn’t really talk about anything.” He stated that he saw Ms. Borys come into the
restaurant with a group of people, but that he did not know they were jurors. He described
that he and Chief Deputy Duncan were “sitting at the table and of course the restaurant was

                                               -9-
real crowded that day, so they come in and found a seat wherever they could and sat down.”
He recalled that the group, which he later found out was composed of jurors, sat at the same
table with him and Chief Deputy Duncan. However, he maintained that neither of the two
men said anything to the jurors or Ms. Borys. Deputy Henley testified that, after lunch, Judge
Burns asked him whether the deputies had talked about the case at the restaurant and that he
told Judge Burns they had not.

        The Petitioner testified that he thought his trial counsel was ineffective because he
“never s[a]t down with me and my witnesses at one time” to discuss “what kind of questions
he was going to ask us.” He also alleged that his trial counsel did not meet with him enough
before trial, recalling that he only met with trial counsel four or five times. The Petitioner
stated that he thought his trial counsel should have filed pretrial motions, including a request
for a bill of particulars, a motion to suppress his statement, and motions to exclude the
AutoZone receipt and the photograph taken of him the night of his arrest. Specifically, with
regard to the photograph, the Petitioner testified, “I had been locked up in a jail cell for some
four or five hours before the photograph was taken. I had been laying down, been asleep,
and I looked pretty messed, pretty rough.” The Petitioner also testified that his trial counsel
did not show him the discovery he had received from the State until the day before his trial.

        The Petitioner stated that he felt his trial counsel was ineffective for failing to ask that
a mistrial be declared after the trial court disclosed that it observed five jurors having lunch
at the same table as two potential State witnesses. Further, he said that his trial counsel
should have questioned the jurors, rather than relying on the questions asked by the trial
court. He also said that he believed his trial counsel should have asked the jurors what they
talked about during lunch. The Petitioner explained that he felt that, by sitting at the same
lunch table, the jurors had “made a social connection with the two deputies” and that he felt
the jurors were “totally in favor of the [S]tate.”

        The Petitioner testified that his trial counsel should have contested the relevance of
the testimony of the TBI expert because no DNA testing was done in the case. He explained
that he felt the language the TBI expert used “made the jury mad” at him. He also testified
that had his trial counsel requested that the jury be sequestered, they would have never had
lunch at the same table as the two deputies. The Petitioner also asserted that his trial counsel
should have asked for a mistrial to be declared when he found out that the trial court had ex
parte communication with the jurors at the restaurant. Further, he said that his trial counsel
should have raised the issue in his direct appeal.

       The Petitioner testified that the trial court should have sua sponte declared a mistrial
after he saw the jurors eating lunch at the same table as the two potential State witnesses.
He also asserted that the trial court erred when it questioned the jury about their progress on

                                               -10-
reaching a verdict, after they had informed the trial court that they were deadlocked. He
elaborated, “I felt that the judge was trying to push them into making a decision one way or
the other.”

       On cross-examination, the Petitioner acknowledged that there were no fact witnesses
who could have testified on his behalf and that his trial counsel presented the testimony of
eight character witnesses. The Petitioner also admitted that his trial counsel did object when
the State moved to introduce the Petitioner’s photograph into evidence, but that the trial court
overruled his objection.

        The Petitioner’s trial counsel (“Trial Counsel”) testified that he had been an attorney
for forty years and, before working at the District Public Defender’s Office, he worked as an
Assistant District Attorney, in private practice, and as a Federal Bureau of Investigation
agent. He testified that he and his investigator “thoroughly investigate[d]” the Petitioner’s
case, even conducting a “neighborhood investigation,” in which they spoke to all of the
neighbors in the area around where the alleged rape occurred.

       Regarding the lunch incident, Trial Counsel testified that he thought Judge Burns did
a good job of questioning the jurors and that he “didn’t know of anything else [he] could
ask.” Trial Counsel also explained that he felt like he had a “good jury” and that “it was [his]
strategy to leave the jury in place.” When asked why he did not file a motion for a new trial
on the issue of the trial court’s ex parte communication with the jurors, Trial Counsel
explained, “I didn’t see anything improper that [Judge Burns] had said to them or anything.”

       Trial Counsel stated that he was pleased with the outcome of the Petitioner’s trial
because rather than finding him guilty of two counts of aggravated rape, a Class A felony,
and one count of aggravated kidnapping, a Class B felony, as he was charged, the jury
convicted the Petitioner of the lesser-included offenses of rape, a Class B felony, sexual
battery, a Class E felony, and attempted false imprisonment, a Class B misdemeanor.

       The post-conviction court denied the Petitioner’s request for relief. He now appeals.

                                            Analysis
        In this appeal, the Petitioner contends that the post-conviction court erred in denying
him relief because: (1) his rights to due process and a fair and impartial jury were violated
when five jurors ate lunch at the same table as the court clerk and two State witnesses; and
(2) he received ineffective assistance of counsel.

       To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.

                                              -11-
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony, and
the factual issues raised by the evidence are to be resolved by the post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,
960 S.W.2d at 578.

I. Due Process
        The Petitioner claims that he was denied his rights to due process and a fair and
impartial jury when five jurors ate lunch at the same table as the court clerk and two State
witnesses. The State argues that the Petitioner is not entitled to post-conviction relief on this
issue because he did not present it for review in his direct appeal.5 We agree with the State
that the Petitioner has waived this issue because “[a] ground for relief is waived if the
petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented.” Tenn. Code Ann. § 40-30-106(g). This issue could have been presented on
direct appeal. Thus, the Petitioner is not entitled to post-conviction relief on this issue.

II. Ineffective Assistance of Counsel
        The Petitioner contends that he received ineffective assistance of counsel.
Specifically, he asserts that his trial counsel was ineffective because he (1) did not file any
pretrial motions other than a request for discovery; (2) should have asked the trial court to
declare a mistrial when he learned that five jurors ate lunch at the same table as the court
clerk and two State witnesses; (3) failed to ask the jurors what they talked about at lunch; and
(4) failed to raise the lunch incident in his direct appeal.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.


        5
          In his direct appeal, the Petitioner raised three issues: (1) Whether the charges of sexual battery
and false imprisonment merged into the conviction of rape; (2) Whether the trial court erred when it
sentenced the Petitioner to eight years to serve in jail and did not consider alternative sentencing; and (3)
Whether the State presented sufficient evidence to convict him.

                                                    -12-
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

      A. Pretrial Motions
      The Petitioner alleges that his trial counsel was ineffective for failing to file pretrial
motions, including a request for a bill of particulars, a motion to suppress his statement, and
motions to exclude the AutoZone receipt and the photograph taken of him the night of his



                                              -13-
arrest. The post-conviction court accepted Trial Counsel’s testimony and found that the
Petitioner’s allegations were without merit and not supported by proof.

        We agree with the post-conviction court that Trial Counsel was not deficient for
failing to file any pretrial motions other than a request for discovery. Trial Counsel stated
that he intentionally did not file any other pretrial motions. He said that he did not file a
motion to suppress the Petitioner’s statement to Deputy Henley because the Petitioner was
not in custody when he made the statement. He explained, “I had rather concentrate on
investigating the case, which I had been trying to do and [his private investigator] had been
trying to do, as opposed to filing motions I’m not going to possibly win.” Moreover, he
testified that he felt the introduction of the Petitioner’s statement was beneficial because it
showed the jury that the Petitioner consistently told the same version of events—that the
sexual encounter was consensual. With regard to why he did not try to exclude any mention
of the AutoZone receipt that the police misplaced, Trial Counsel said that it was part of his
strategy to argue that “you just don’t go out and commit a heinous crime that you can go to
jail for fifteen to twenty[-]five years for and leave your phone number. That doesn’t make
any sense.” Trial Counsel said that he did not ask for a bill of particulars because the victim
testified during the preliminary hearing and he felt that her allegations were clear. He
testified that he did object to the introduction of the Petitioner’s photograph during trial and
stated that he chose not to file a motion in limine because, in his experience, the trial court
would not have ruled on the motion until the trial, even if it was filed in advance.

       In its order, the post-conviction court credited the testimony of Trial Counsel and
found that his representation had not been deficient in any way. The post-conviction court
also found that the Petitioner failed to present clear and convincing evidence that he was
prejudiced by his trial counsel’s failure to file pretrial motions. We conclude that the post-
conviction court properly denied the Petitioner relief on this issue.

        B. Failing to Request a Mistrial
        The Petitioner contends that his trial counsel was ineffective for failing to request that
the trial court declare a mistrial after he learned that some of the jurors ate lunch at the same
table as the court clerk and two State witnesses. Initially, we note that “[a] mistrial is usually
appropriate in a criminal case only where there is a ‘manifest necessity.’” State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996) (quoting Arnold v. State, 563 S.W.2d 792,
794 (Tenn. Crim. App. 1977)). “The purpose for declaring a mistrial is to correct damage
done to the judicial process when some event has occurred which precludes an impartial
verdict.” Id.

       In its order, the post-conviction court made the following findings:



                                              -14-
              1. Judge Leon Burns properly admonished trial jurors prior to the lunch
       break not to speak with others.

              2. Clerk Borys and the jurors briefly joined two State witnesses,
       specifically Deputy Ed Henley and Deputy Donnie Duncan at a large table.

              3. Judge Burns also ate at the restaurant. He arrived shortly after the
       [sic] Borys and jurors and addressed the group, whereupon the deputies
       immediately left the table.

              4. Following the lunch break, Judge Burns individually questioned, on
       the record, each juror and both deputies.

              5. Following this questioning, the [c]ourt determined to its satisfaction
       that no inappropriate conduct had taken place since the admonitions given to
       the jurors prior to the lunch break were kept by the jurors.

               ....

              The [c]ourt finds that further questioning by [Trial Counsel] would not
       have been successful in the declaration of a mistrial and that there was no
       reason for the [t]rial [c]ourt to declare a mistrial regarding this issue.

               The [P]etitioner has not shown any prejudice caused by the actions of
       the jurors and the State’s witnesses during his trial. Neither has the
       [P]etitioner shown ineffective assistance of counsel regarding this issue.
       These allegations are without merit.

        Regarding the lunch incident, Trial Counsel said that he did not see any grounds for
a mistrial to be declared. He also testified that he felt like he had a “good jury” and that “it
was [his] strategy to leave the jury in place.” Four of the jurors involved in the lunch
incident testified at the Petitioner’s post-conviction hearing. However, none of them testified
that there was any conversation about the trial while they ate lunch. Further, our review of
the trial transcript convinces us that the trial court thoroughly investigated the lunch incident.
After the lunch recess, the trial court informed the attorneys that it had witnessed several
jurors sitting at the same table as two potential State witnesses, “suggested that the witnesses
shouldn’t be there,” and “admonished the jurors that they should not let their familiarity or
relationship in any way interfere with their verdict and fairness in the case.” The trial court
then began individually questioning each of the jurors involved, Ms. Borys, and the two
deputies. Ms. Borys, Chief Deputy Duncan, and Deputy Henley each testified that there was

                                               -15-
no discussion of the case during lunch from anybody at the table. Each of the five jurors
involved in the lunch incident testified that there was no discussion of the case by anyone
seated at the table and that sitting at the table with the two deputies would not influence their
evaluation of the deputies’ testimony. Moreover, the Petitioner failed to show by clear and
convincing evidence that he was prejudiced by the failure of his trial counsel to request that
the trial court declare a mistrial. Therefore, we conclude that the post-conviction court
properly denied the Petitioner relief on this issue.

       C. Questioning the Jurors
       The Petitioner alleges that his trial counsel was ineffective for failing to ask the jurors
what they discussed during lunch. He asserts that his trial counsel should have asked the
jurors about their conversation in order “to determine if it was prejudicial to his client.”

        During the Petitioner’s post-conviction hearing, Trial Counsel testified that he thought
the trial court did a good job of questioning the jurors and that he “didn’t know of anything
else [he] could ask.” After hearing the proof presented at the hearing, the post-conviction
court stated, “The [c]ourt finds that further questioning by [Trial Counsel] would not have
been successful in the declaration of a mistrial and that there was no reason for the [t]rial
[c]ourt to declare a mistrial regarding this issue.” Moreover, we note that the Petitioner
failed to present clear and convincing evidence that he was prejudiced by his trial counsel’s
actions. Thus, we conclude that the post-conviction court properly denied the Petitioner
relief on this issue.

       D. Appeal
       The Petitioner asserts that, in his direct appeal, his trial counsel should have raised the
issue of the jurors eating lunch at the same table as two State witnesses. However, the
Petitioner failed to present clear and convincing evidence that he was prejudiced by his trial
counsel’s decision not to raise the lunch incident in his direct appeal. Therefore, we
conclude that the post-conviction court properly denied the Petitioner relief on this issue.

                                    Conclusion
      Based on the foregoing authorities and reasoning, we affirm the denial of post-
conviction relief.




                                                      _________________________________
                                                      DAVID H. WELLES, JUDGE




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