                                                                                               07/01/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 19, 2020

           KENNETH DARRIN FISHER v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Anderson County
                    No. B1C00719       Donald Ray Elledge, Judge
                      ___________________________________

                             No. E2019-01816-CCA-R3-PC
                        ___________________________________


The petitioner, Kenneth Darrin Fisher, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received the effective assistance of
counsel at trial and on appeal. Specifically, the petitioner asserts trial counsel was
ineffective for failing to properly prepare the petitioner to testify at trial; failing to object
to the State’s assertion that the gun found in the petitioner’s vehicle was an “assault rifle;”
failing to object to the admission of the unredacted video of the petitioner’s police
interview; and failing to appeal the trial court’s admission of Ms. Burchett’s recorded
preliminary hearing testimony. The petitioner also asserts he was deprived due process
when the post-conviction court sustained the State’s objection regarding Ms. Green’s
testimony. After our review of the record, briefs, and applicable law, we affirm the denial
of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.

William F. Evans, Jacksboro, Tennessee, for the appellant, Kenneth Darrin Fisher.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; David S. Clark, District Attorney General; and Emily Abbott, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                          OPINION

                               Facts and Procedural History
      On direct appeal, this Court summarized the facts surrounding the petitioner’s
conviction for attempted first degree murder, as follows:1

                At the trial, Clinton Police Department 9-1-1 Center employee
        Amanda Carter testified that on the evening of August 26, 2011, she received
        calls from individuals who identified themselves as the [petitioner’s] father
        and a friend of the [petitioner]. She identified a compact disc containing
        recordings of the calls, and the calls were played for the jury. In one call, the
        [petitioner’s] father stated that the [petitioner] had left the father’s house with
        an M14 rifle and ammunition and was “headed up towards LaFollette”
        because the [petitioner] was “after” the [petitioner’s] wife, whom the father
        stated was living with another man and had asked for a divorce. In another
        call, the [petitioner’s] friend, Jody Patterson, stated that the [petitioner] was
        “on his way back to Clinton right now” to a specified address. Mr. Patterson
        stated that the [petitioner] was coming to the address “to say ‘bye’” to some
        friends. Mr. Patterson said the [petitioner] had stated he was in the
        “Knoxville Oak Ridge area” and would call again when he was “on his way.”
        Mr. Patterson stated the [petitioner] was armed with an M14 and “plenty of
        ammo.” Mr. Patterson specified that responding officers should park in the
        back of a business at the address in order to prevent the [petitioner] from
        seeing them. Mr. Patterson stated that the [petitioner] was “AWOL” and that
        he had called the police because the [petitioner’s] friends wanted the
        [petitioner] to get the help the [petitioner] needed.

        ...

                Oliver Springs Police Officer Bruce Morgan, who was employed with
        the Clinton Police Department on August 26, 2011, testified that he heard
        radio calls about an armed male subject traveling in a described vehicle. He
        said that he and Officer Jackson were in the area where the vehicle was
        described as possibly being and that they parked nearby and watched the
        apartment to which the subject was supposed to be traveling. Officer Morgan
        said that within a few moments, they saw the vehicle that had been the subject
        of the radio calls and that they approached the [petitioner], who was dressed
        in military fatigues and boots. He said he and Officer Jackson had their
        police-issued shotguns trained on the [petitioner] because the radio dispatch
        had included information that the [petitioner] might be armed with a rifle.
        Officer Morgan said that they ordered the [petitioner] onto the ground and

        1
           Due to the length of the trial court testimony, we have only included those facts relevant to the
issues raised on post-conviction and before us.
                                                   -2-
that Sergeant Gregory handcuffed the [petitioner], who did not struggle or
resist. Officer Morgan said they removed “knives and stuff” from the
[petitioner’s] waistband and pockets. He said the [petitioner] had two knives,
each of which was sheathed and in a different pocket. One was a hunting or
military-style knife, and the other was a “multi-tool” knife.

...

        Clinton Police Sergeant Scott Gregory testified that he came into
contact with the [petitioner] shortly before midnight on August 26, 2011. He
said he and other officers had been searching for a specific vehicle containing
a person armed with a rifle based upon information they received from
dispatch. He said that when he arrived at the address of an apartment in
Clinton, other officers held shotguns toward the [petitioner], who was
“prone” on the ground. Sergeant Gregory handcuffed the [petitioner] and
searched him for weapons, locating a large, green sheathed knife, a smaller
multi-purpose tool in a case, and two other knives in the [petitioner’s] cargo
pants pockets. Sergeant Gregory said the [petitioner] was cooperative and
followed Sergeant Gregory’s commands. Sergeant Gregory said the
[petitioner] stated that he was AWOL from Fort Drum and that he had been
deployed to Afghanistan. Sergeant Gregory saw a rifle on the front passenger
seat of the [petitioner’s] car. Sergeant Gregory took a statement from Leslie
Hannah [Burchett], a resident of the apartment. Sergeant Gregory identified
photographs of the [petitioner], the knives, and the rifle inside the car, which
were taken at the scene. He said a magazine was “seated” in the rifle,
meaning the rifle was ready to be fired. He said the magazine appeared to be
capable of holding twenty rounds, but he did not know if it was loaded or if
a bullet was in the rifle’s chamber.

...

       Leslie Hannah Burchett testified that she was Jody Patterson’s ex-
wife. She knew the [petitioner] from high school and said the [petitioner]
and Mr. Patterson had been close friends. She recalled the police coming to
her apartment on August 26, 2011, but she did not recall any telephone calls
she received beforehand that night, Mr. Patterson’s being home, or Mr.
Patterson’s calling the police. She recalled that the [petitioner] came to the
apartment and that she had been outside smoking with the [petitioner] when
the police approached. She said the police were there because the [petitioner]
was “in trouble” but did not recall how the police were aware of the problem.
She did not recall attending an event with the [petitioner] two weeks before
                                     -3-
August 26 and did not recall testifying at the preliminary hearing. She said
the [petitioner] had told “us” that the [petitioner’s] wife left him. She did not
recall any discussion with the [petitioner] “concerning violence to his wife.”

      When shown the August 26, 2011 written statement she gave law
enforcement, Ms. Burchett acknowledged she had no reason to believe the
document was not authentic. She said she had been truthful in the statement.
She read portions of the statement to the jury. The statement provided, in
part:

       When [the petitioner] got home [to] Tennessee it was obvious
       he was not going back to Fort Drum. It was almost like he was
       a totally different person. He used to be a very laid-back, fun-
       to-be-around kind of person. After a day or two of coming
       back he started talking about where his wife Kendall Dunham
       was staying in LaFollette with Anthony Walden to kill her and
       him. I thought he was just blowing steam until he brought the
       shells bullets to do it with. He then proceeded to tell me how
       he was going to kill them. [The petitioner] told me he was just
       going to shoot Anthony but he was going to take his time with
       Kendall. He said he was going to start off by carving whore
       into her forehead so she would be marked for what she is and
       so the whole world would know it as well. [The petitioner]
       also told me that he was going to sew her vagina shut so she
       could never hurt anyone again. After he did this he said . . . he
       hadn’t decided if he was going to shoot her or stab her. [The
       petitioner] had also said that if the police showed up during all
       of this he wasn’t going down without a fight and the police
       weren’t going to take him until he was either out of bullets or
       dead. He told me he wasn’t going to pull the trigger on himself,
       he would force someone else to. He had also said over and
       over he wished he was dead.

        After reading the statement, Ms. Burchett acknowledged her signature
but stated that although she recalled giving the statement, she had no
recollection of the conversation with the [petitioner] it referenced. She said
she had anxiety and depression and that although she had taken anxiety
medication at the time she gave the statement, she did not take it at the time
of the trial.



                                      -4-
       When shown a transcript of her preliminary hearing testimony, Ms.
Burchett said that reviewing it did not refresh her memory of having gone
somewhere with her ex-husband and the [petitioner] a few days to a week
before August 26, 2011.

       Rachel Shell, an employee of the general sessions court, testified that
she had been asked to provide the recording of the [petitioner’s] preliminary
hearing relative to the testimony of Leslie Hannah Patterson, which other
evidence showed was the name by which Ms. Burchett was formerly known.
The recording was received as an exhibit and played for the jury.

        The recording of the preliminary hearing reflected that Ms. Burchett
testified she and her husband had talked to the police about the [petitioner]
one to one and one-half weeks before August 26, 2011. She said they went
to the police because the [petitioner] made statements about killing his wife
a few days earlier and because they saw him buy bullets at a gun show the
day before they went to the police. She said they took the bullets to the
police. She said the police stated they could not arrest the [petitioner] for
“talking s---.” She said that after they went to the police, she had two or three
conversations with the [petitioner] in which he spoke of killing his wife. She
said the [petitioner] stated his wife had hurt him and antagonized him on the
telephone. She said the [petitioner] stated he wanted to “kill that b----” and
shoot and kill the man with whom she lived. She said the [petitioner] stated
he was going to carve “whore” in his wife’s forehead in order to warn others
and prevent her from hurting anyone else. She said the [petitioner] did not
know if he would shoot or stab his wife.

        In the recording of the preliminary hearing, Ms. Burchett testified that
on August 26, 2011, she learned what was occurring relative to the
[petitioner] when the [petitioner’s] father called her home. She said both the
[petitioner’s] father and Ms. Burchett’s then-husband, Mr. Patterson, called
the police because they did not know the [petitioner’s] state of mind. She
said Mr. Patterson called the [petitioner] and learned the [petitioner] was
driving toward Knoxville. She said she spoke to the [petitioner], who did not
state where he was going or what he was doing when she questioned him.
She said he stated, “I’ve got to do it.” She said that she invited the [petitioner]
to come to her and Mr. Patterson’s home and that the [petitioner] agreed. She
said the [petitioner] arrived about one and one half hours later. She said she
went downstairs, hugged the [petitioner], and asked where he was going. She
said he responded that she knew where he was going. She said she asked
him to smoke a cigarette with her. She said that as the [petitioner] went to
                                       -5-
his car to get a cigarette, two police officers ran across the street with
shotguns. She said the officers detained the [petitioner], searched him,
recovered knives, and handcuffed him. She said that the [petitioner] told the
police he was not in his right mind, that they told him “this was not the right
way to go about it,” and that an officer said the [petitioner] was under arrest.
She said the [petitioner] was cooperative and honest with the police. She
said that when an officer stated a gun was in the [petitioner’s] car, the
[petitioner] stated that a clip was in the gun, but no bullet was in the chamber.
She said she had heard everything said between the police and the
[petitioner]. She never heard the [petitioner] say he had intended to kill his
wife. She did not hear the police read the [petitioner] his rights.

        In the recording of the preliminary hearing, Ms. Burchett testified that
the [petitioner] had also spoken of going into the mountains of Tennessee or
to South America because he was heartbroken and did not think he could
“deal with it anymore.” She said that although she did not know the
[petitioner’s] wife’s whereabouts on August 26, 2011, she understood the
[petitioner’s] wife might be in the Jacksboro/LaFollette area. She agreed that
if the [petitioner] had gone to Knoxville, he would have been driving away
from, rather than toward, the area where his wife was living.

...

        Assistant Chief Becker testified that he interviewed the [petitioner] at
the police department. Assistant Chief Becker said that he advised the
[petitioner] of the [petitioner’s] Miranda rights and that the [petitioner]
waived his rights. Chief Becker said the [petitioner] did not appear to be
under the influence. He identified a video recording of the interview, which
was received as an exhibit and played for the jury. In the interview, the
[petitioner] stated the following: He and his wife had been married for three
months. Two weeks before the date of the statement, the [petitioner’s] wife
left Fort Drum after telling him she had to go home to help with her mother.
The [petitioner] said he left Fort Drum “to come home to fix it.” He said he
learned that his wife had confessed to her best friend that she was having sex
with other men during the marriage and that one of his best friends tried to
have a “threesome” with her. He said a friend advised him that the
[petitioner’s] wife had only “played” him “for the money.” The [petitioner]
stated that his wife hated him and refused to talk to him and that she was in
LaFollette. He said that before he was apprehended, he had intended to
locate his wife and kill her “before she could do that to anyone else” and that
he planned to leave the country. He said he had intended to shoot his wife in
                                      -6-
the leg to prevent her from fleeing, cut a tattoo off her arm, and kill her by
shooting her again. He said the tattoo had the date of his wife’s miscarriage
and that he had intended to tell her it was good she had miscarried because a
child “didn’t need a whore as a mom.” He said that although he did not know
his wife’s address in LaFollette, he had a photograph of the car she had been
driving. He said he had also planned to kill the man with whom his wife was
involved. He said the M14 rifle belonged to his father. The [petitioner]
stated that he stopped in Clinton because his friends Jody and Hannah wanted
to see him before he left. He said he had discussed his plan with them
previously. When asked about a “round” on the driver’s seat, he said the gun
had never been loaded and that he had begun loading a second, twenty-round
magazine from a bag of 100 rounds. When asked if he had planned to kill
himself, he said that he had planned for the police to come and that he
planned to die in a shoot-out. He acknowledged that he was AWOL from
Fort Drum and said he had considered volunteering for a deployment but
decided to come home instead. He said that he had intended to talk to his
parents but that they had not answered his call. The [petitioner] stated that
he had last been in contact with his wife the previous week and that she knew
he had come home. He said he had developed the plan to kill his wife the
previous week, after he learned “the whole thing was a lie.”

        In the statement, the [petitioner] said that the previous evening, he had
been at home and asked his father for permission to clean the guns. He said
his father kept the guns and ammunition in a safe. He said he removed screws
that secured windows of the house and disabled an alarm. He said he went
out a window with an M14 and ammunition and ran to his car. He said his
father called two minutes later, but he did not answer. The [petitioner] said
Mr. Patterson called and then sent him a text message when he did not answer
the call. He said Mr. Patterson had advised him that the police would be
looking for him. The [petitioner] said that he later spoke to Mr. Patterson
and that Mr. Patterson and Ms. Burchett wanted the [petitioner] to visit them.
The [petitioner] said he had been “going off toward Lovell Road” but turned
around. He said he stopped on the way to Clinton, changed into his uniform,
and loaded a magazine. He said that after he arrived at Mr. Patterson and
Ms. Burchett’s home, Ms. Burchett asked where he was going and what he
was doing. He said he responded, “You know where I am going. I have to
do this for me. I have to get closure.” He said she told him that he did not
have to do it and asked him to smoke a cigarette with her. He said that the
police approached him as he was getting a cigarette from his car. He said he
cooperated with the police.          He thought that he had 143 rounds of
ammunition in his car and that twenty of them were for hunting. He said he
                                      -7-
obtained the ammunition “just the other day.” The [petitioner] stated that he
knew he should return to Fort Drum but that if he did so, he would kill one
of his best friends because the man had been with the [petitioner’s] wife.

...

        The [petitioner] testified that he had been in the Army, had been
stationed at Fort Drum, and had been deployed to Afghanistan. He said that
he did not experience combat but had been threatened by children with
weapons on three occasions while he was in Afghanistan. He said that
although the military rules of engagement dictated that he should have killed
these individuals, he did not because they were children. He said he returned
to Fort Drum from Afghanistan approximately five months before August
2011. He said that he had known his wife since high school and that they
were married after he returned from Afghanistan. He said they had not dated
previously, that he had been indoctrinated during the deployment to believe
the military was “the best,” and that he wanted to start a family with his wife.
He said that he believed at the time that she was in love with him and that he
loved her. He said that after he and his wife were married, his father advised
him of a rumor about his wife’s having been unfaithful and that his wife’s
best friend said his wife had been unfaithful. He said he became angry and
developed the homicidal thoughts about which Assistant Chief Becker
testified. The [petitioner] said he knew his wife was in the LaFollette area.
When asked if he would have carried out his plan if he had encountered his
wife on August 26, 2011, he said he had not been able to kill the children in
Afghanistan and asked, “How could I kill an innocent civilian and whoever
she was with.”

        The [petitioner] testified that when he left his father’s house on
August 26, 2011, he went toward Lovell Road in Knoxville. He said he did
not know his destination. He said that when Mr. Patterson advised him the
police were looking for him, he thought it was because he was AWOL. He
thought Mr. Patterson had told him about the police looking for the
[petitioner] before the [petitioner] asked his father to clean the guns and
before the [petitioner] left Anderson County. The [petitioner] said he thought
he needed to get out of town and get a fresh start. The [petitioner] said that
when Mr. Patterson called and wanted him to come to Mr. Patterson’s house
to say goodbye, the [petitioner] wanted to see his friends one more time
before he “took out and went [somewhere he] didn’t know anybody.” He
recalled that after he turned around and drove toward Clinton, he stopped but
did not recall why.
                                     -8-
       The [petitioner] testified that he was at Mr. Patterson and Ms.
Burchett’s house for ten to fifteen minutes before the police approached him.
He said he knew the people who approached him were police because he had
heard the sounds of their rifles. He acknowledged he had thought about
committing “suicide by cop” but did not think he would have acted on the
thought.

        The [petitioner] testified that he had given the recorded statement
voluntarily. He said he never thought he could have committed the crimes
he described to Assistant Chief Becker. He said that his thoughts had been
disturbing and that he had been “young and stupid” and “in a messed up
place.” He said he thought the best thing he could do was to tell the police
about his thoughts because they would ensure he did not act on the thoughts.
He said he did not regret telling Assistant Chief Becker about his thoughts
because he knew “it stopped something from happening.” The [petitioner]
said he felt better after telling Assistant Chief Becker about the thoughts
because the [petitioner] knew he could not do anything to make his thoughts
happen. The [petitioner] said that after telling a law enforcement officer
about thoughts of this nature, “They can put you in handcuffs and make sure
you don’t do anything that you’d regret.” The [petitioner] said he had a “slim
thought” of carrying out his thoughts about harming his wife but denied his
harmful thoughts had been intentions. He said they were merely a
“disturbing fantasy.” He agreed, however, that the only reason he did not
kill his wife was because the police stopped him.

       When asked if he recalled telling Ms. Burchett that he intended to sew
his wife’s vagina closed, the [petitioner] testified that he did not remember
exactly what he told Ms. Burchett. He said he “might have” said it. He said
he knew he said “some disturbing things like the whore and the tattoo.” He
agreed he had gone to a gun expo with Mr. Patterson and Ms. Burchett and
that he bought bullets at the expo. He said, however, that he had not
remembered until the trial that he had gone to the expo and claimed he did
not recall whether he bought bullets at the expo in order to kill his wife. He
thought his buying the bullets was an “act of need” to show that he was
having disturbing thoughts about which he was conflicted.

       The [petitioner] acknowledged that he had not wanted his father to
know he took the rifle out of the house and that he snuck out of the house
with the rifle, his military fatigues, and over 100 rounds of ammunition. He
also acknowledged he did not answer when his father called him. He
                                    -9-
       acknowledged telling Mr. Patterson, “I’ve got to do this, I’ve got to get
       closure.” He acknowledged saying in his police interview that he had gone
       to Mr. Patterson’s house to say goodbye to his parents and to apologize for
       leaving without saying goodbye to them. The [petitioner] acknowledged
       saying he had come up with the plan to kill his wife when he found out “the
       whole thing was a lie.” He also acknowledged that he had not told the police
       the plan to kill her had been a fantasy. He did not think the police asked if
       he would go through with the plan.

State v. Kenneth Darrin Fisher, No. E2016-01333-CCA-R3-CD, 2017 WL 4083785, at *1-
6 (Tenn. Crim. App. Sept. 15, 2017), perm. app. denied (Tenn. Feb. 14, 2018).

        Following the denial of his direct appeal, the petitioner filed a timely pro se petition
for post-conviction relief. After the appointment of counsel, the petitioner filed an
amended petition for post-conviction relief, arguing, in part, trial counsel was ineffective
for failing to properly advise the petitioner whether to testify at trial; failing to object to the
State’s reference to an “assault rifle” in closing arguments; failing to object to the
admission of the unredacted video of the petitioner’s police interview; and failing to raise
on direct appeal the admission of Leslie Burchett’s preliminary hearing testimony.

        At the post-conviction hearing, trial counsel testified he was retained to represent
the petitioner prior to the preliminary hearing and continued his representation through the
petitioner’s direct appeal. Because trial counsel recommended the petitioner not testify at
trial, he did not conduct mock direct or cross-examinations. However, prior to the
petitioner’s Momon2 hearing, the petitioner informed trial counsel of his desire to testify,
which trial counsel believed was, in part, to please the petitioner’s father. Trial counsel
quickly discussed a few important points for the petitioner’s direct and cross-examinations
but did not have a detailed outline or checklist prepared. On cross-examination, trial
counsel testified he and the petitioner discussed the possibility of the petitioner testifying
approximately eight or nine times. During each conversation, trial counsel told the
petitioner “there was no way [they] would have him testify.” Trial counsel also agreed the
petitioner testified he simply had a murderous fantasy and did not intend to go through with
the murder.

        Because trial counsel reviewed the petitioner’s recorded police interview prior to
trial, he was aware the petitioner stated he would have killed his wife’s new boyfriend if
he was with the petitioner’s wife. During the interview, the petitioner also stated he wanted
to kill his friend at Fort Drum because he tried to have sex with the petitioner’s wife.
However, trial counsel did not ask for those statements to be redacted from the video

       2
           Momon v. State, 18 S.W.3d 152 (Tenn. 2000).
                                                - 10 -
because he “didn’t think of it.” He agreed his decision was not a trial tactic, and he should
have asked for the video to be redacted. On cross-examination, trial counsel conceded the
petitioner had also viewed the video of the interview prior to trial.

        During closing arguments, the prosecutor referred to the gun found in the
petitioner’s vehicle as an assault rifle. Trial counsel knew the gun was not an assault rifle
and agreed he filed a request for a special jury instruction on the definition of “assault
rifle.” However, trial counsel did not object to the prosecutor’s statement for “a
combination of reasons.” Because he was “thinking really fast and really hard” about when
to speak up, trial counsel “let [the reference] go by.” He was also concerned the trial court
would not understand his objection, which would only “magnify the argument that [the
petitioner] had an assault weapon.” Nonetheless, trial counsel could not define his decision
as tactical because “[i]t happened so quickly.” On cross-examination, trial counsel agreed
that, because the gun was admitted into evidence, the jury was able to examine it.
Additionally, when the prosecutor referred to the gun as an assault rifle during the
petitioner’s cross-examination, the petitioner corrected the prosecutor and stated the gun
was not an assault rifle.

        At trial, Leslie Burchett testified she could not recall many of the events leading up
to the petitioner’s arrest. The State attempted to refresh Ms. Burchett’s memory with the
transcript of her preliminary hearing testimony, and, when Ms. Burchett testified the
transcript did not refresh her memory, the State introduced a recording of her preliminary
hearing testimony. Prior to the admission of the recording, the State called Rachel Schell,
an employee in the clerk’s office, who authenticated the recording. Trial counsel objected
to the admission of the recorded testimony because the State failed to prove Ms. Burchett
was sworn in prior to testifying. Although trial counsel could not initially recall why he
did not include this issue in the petitioner’s direct appeal, he testified he later verified Ms.
Burchett was, in fact, properly sworn in at the preliminary hearing. Additionally, trial
counsel did not consider the issue to be very strong and chose to focus on the strongest
issues on appeal. On cross-examination, trial counsel conceded he had a copy of Ms.
Burchett’s preliminary hearing testimony prior to trial. However, he disagreed that Ms.
Burchett was attempting to be favorable toward the defense, and, if that was her goal, her
efforts were “completely useless and idiotic.”

        The petitioner testified that whenever he and trial counsel discussed the possibility
of the petitioner’s testifying at trial the petitioner told trial counsel to decide because he
was “the legal expert.” Although trial counsel told the petitioner they would “cross that
bridge when [they came] to it,” trial counsel indicated the petitioner would not testify, and,
while trial counsel went over the advantages and disadvantages of testifying, he did not
conduct a mock direct or cross-examination with the petitioner. At trial, during a recess,
trial counsel approached the petitioner and asked how he felt about testifying. Although
                                             - 11 -
trial counsel did not tell the petitioner to testify, the petitioner believed it was necessary
because trial counsel “looked worried about something.” Trial counsel told the petitioner
not to get “stumbled up” during cross-examination and to listen to each question being
asked of him. The petitioner did not know what topics would be discussed during his
testimony but told trial counsel to ask the petitioner about Afghanistan.

       The petitioner testified, if he had been better prepared by trial counsel, he could
have made a “better” decision about whether to testify. Additionally, the petitioner would
have been able to keep calm during cross-examination and not blurt out answers. On cross-
examination, the petitioner agreed that it was his decision to testify and that he told the
truth during his trial testimony. He also agreed, at trial, he testified on cross-examination
that he intended to murder his wife and the only reason he did not do so was because the
police stopped him.

       The petitioner testified the gun found in his vehicle at the time of his arrest was an
M1 Alpha semi-automatic rifle. According to the petitioner, the State’s characterization of
the gun as an assault rifle was problematic because the general public associates assault
rifles with mass shootings. Essentially, the petitioner believed the State used the term
“assault rifle” as a scare tactic. On cross-examination, the petitioner agreed an M1 Alpha
is capable of murdering someone. He also agreed that he corrected the prosecutor during
trial when the gun was referred to as an assault rifle during the petitioner’s cross-
examination.

       The petitioner also called Connie Green, a juror during the petitioner’s trial, as a
witness at the post-conviction hearing. However, when the petitioner attempted to question
Ms. Green about the jury’s deliberations, the post-conviction court sustained an objection
by the State and held the jury’s deliberations are private.

       After its review of the evidence presented, the post-conviction court denied relief,
and this timely appeal followed.

                                            Analysis

       On appeal, the petitioner asserts trial counsel was ineffective for failing to properly
prepare the petitioner to testify at trial; failing to object to the State’s assertion that the gun
found in the petitioner’s vehicle was an “assault rifle;” failing to object to the admission of
the unredacted video of the petitioner’s police interview; and failing to appeal the trial
court’s admission of Ms. Burchett’s recorded preliminary hearing testimony. The
petitioner also asserts he was deprived due process when the post-conviction court
sustained the State’s objection regarding Ms. Green’s testimony. The State contends the
post-conviction court correctly denied the petition and disallowed Ms. Green’s testimony.
                                              - 12 -
   I. Trial Counsel

        The petitioner bears the burden of proving his post-conviction factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. See Ruff
v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel
presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
Thus, this Court reviews the petitioner’s post-conviction allegations de novo, affording a
presumption of correctness only to the post-conviction court’s findings of fact. Id.; Burns
v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the
standard for determining ineffective assistance of counsel applied in federal cases is also
applied in Tennessee). The Strickland standard is a two-prong test:

               First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.; see
also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter
                                            - 13 -
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the Strickland test is
satisfied when the petitioner shows there is a reasonable probability, or “a probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. However, “[b]ecause of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

   A. Failure to Prepare the Petitioner to Testify

       The petitioner argues trial counsel was ineffective for failing to properly prepare
him to testify at trial. Specifically, the petitioner contends trial counsel should have
realized the petitioner would need to testify about his homicidal fantasies and, therefore,
should have prepared an outline and conducted mock direct and cross-examinations. The
petitioner argues he would have been able to keep calm under cross-examination if he was
better prepared. The State contends the petitioner has failed to establish trial counsel was
deficient in regards to the petitioner’s trial testimony. The post-conviction court made the
following findings regarding this issue:

               [L]ike the [petitioner] said, his attorney didn’t tell him to testify. In
       fact, he kept saying, we shouldn’t testify, you shouldn’t testify. He said eight
       or nine times he advised him of that; you shouldn’t testify. The [petitioner]
       said today that he testified because it looked like his attorney was hesitant
       and it looked like it wasn’t going well. Well, of course it wasn’t going well.
       Preparation . . . and let me reflect on the [petitioner’s] testimony that that
       would have given him more time, more time for what? If you are telling the
       truth, and I always told my clients this. Listen to the question, make sure you
       understand it. Once you understand it, answer it. And answer it truthfully.
       You don’t have to think. You can blurt out anything as long as it is the truth.
       So the only thing I can conclude from your testimony today that would have
       given you more time to think about what you could do that wouldn’t be
       truthful on the stand, which is a felony in and of itself.

       At the post-conviction hearing, trial counsel testified he and the petitioner discussed
the petitioner’s potential testimony eight or nine times. However, because trial counsel
recommended the petitioner not testify at trial, he did not prepare an outline or conduct
mock direct and cross-examinations. During trial, when the petitioner informed trial
counsel that he wished to testify, trial counsel discussed a few important points for the
petitioner’s direct and cross-examinations. The petitioner testified he left the decision of
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whether he should testify up to trial counsel because he was “the legal expert.” At trial,
during a recess, trial counsel approached the petitioner and asked how he felt about
testifying. Because trial counsel looked worried, the petitioner believed he needed to
testify. Trial counsel told the petitioner not to get “stumbled up” on cross-examination and
to listen to the question that was being asked. The petitioner was not aware what topics
would come up during his testimony but told trial counsel to ask him about Afghanistan.
If he had been better prepared, the petitioner testified he would have kept calm while
testifying on cross-examination. The petitioner also agreed that it was his decision to
testify and that he told the truth during his testimony. He also agreed that he testified on
cross-examination that he intended to kill his wife and the police stopped him from doing
so.

        Implicit in the post-conviction court’s order denying relief is an accreditation of trial
counsel’s testimony, and nothing in the record preponderates against the post-conviction
court’s factual findings. See Tidwell, 922 S.W.2d at 500. Trial counsel recommended the
petitioner not testify. However, once the petitioner made the decision to testify, during the
middle of trial, trial counsel did all he could to prepare and advise the petitioner. Thus, the
petitioner has not shown deficient performance on the part of trial counsel. Furthermore,
as the post-conviction court noted, the petitioner testified it was his decision to testify, and
the petitioner agreed he told the truth during his testimony. The petitioner is not entitled
to relief on this issue.

   B. Failure to Object to “Assault Rifle” Reference

        The petitioner argues trial counsel was ineffective for failing to object to the State’s
reference to the gun found in the petitioner’s vehicle as an “assault rifle” and “assault
weapon.” The petitioner contends trial counsel knew the weapon was not an assault rifle,
and trial counsel’s failure to object prejudiced the petitioner because the phrase “assault
rifle” painted the petitioner as “a rogue member of the military, trained and hellbent on
killing his wife, her paramour, and his own friend, with a rifle capable of killing numerous
people with a simple pull of a trigger.” The State contends the petitioner failed to prove
any ineffectiveness on the part of trial counsel.

       As to this issue, the post-conviction court made the following findings:

              [T]he [c]ourt, as the [c]ourt always does, in the jury instructions that
       were filed as an exhibit for identification purposes specifically set out, as I
       always do, that arguments of counsel is (sic) not proof. If counsel says
       something that is not supported by the proof, the jury is to disregard it, or
       words to that effect. I’ve said it so many times it is engrained in my mind.

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               This is a semi[-]automatic rifle that was used, as was acknowledged
       by the [petitioner] himself, by the United States Army and the Marines for
       years. I have trained on that rifle. That was fifty years ago when I was in
       the Army. I trained on that rifle. It’s a semi[-]automatic. It will shoot, well,
       there is modified rounds but it goes up to twenty . . . I’ll take the twenty he
       said, I always thought I had more than that in my weapon. But anyway,
       twenty rounds he had in one of the pictures, the second picture introduced,
       showed pictures of two magazines. That was exhibit number nine of
       collective exhibit number two or three, I don’t remember exactly. And then
       all the ammunition. And if I remember, there was well over a hundred rounds
       in this thing. A hundred rounds of, I would call it an assault rifle, too, but he
       says it’s a M1 because it’s a semi-automatic, it’s not technically an assault
       rifle because an assault rifle should be automatic. So whatever, the jury had
       the opportunity to review and look at this and draw their own conclusion.
       And they were told whatever the district attorney said that they don’t find
       true, they need to discard it.

       At the post-conviction hearing, trial counsel testified he knew the gun found in the
petitioner’s vehicle was not an assault rifle and agreed he filed a request for a special jury
instruction on the definition of “assault rifle.” When the prosecutor referred to the gun as
an assault rifle during closing argument, trial counsel did not object for several reasons.
Trial counsel “let [the reference] go by” because he was “thinking really fast and really
hard” about when to object. He also had concerns about the trial court’s understanding his
objection and believed this would only “magnify the argument that [the petitioner] had an
assault weapon.” On cross-examination, trial counsel agreed the gun was entered into
evidence, and the jury was able to examine it. Trial counsel also agreed the petitioner
corrected the prosecutor when the prosecutor called the gun an assault rifle while cross-
examining the petitioner. The petitioner testified the gun found in his vehicle was an M1
Alpha semi-automatic rifle. The petitioner was worried about the State’s characterization
of the gun as an assault rifle because assault rifles are often connected to mass shootings,
and the petitioner believed the State used the term “assault rifle” as a scare tactic. On cross-
examination, the petitioner acknowledged an M1 Alpha is capable of murdering someone
and agreed he corrected the prosecutor when he referred to the gun as an assault rifle during
his cross-examination.

       The post-conviction court accredited the testimony of trial counsel, and nothing in
the record preponderates against the findings of the post-conviction court. See Tidwell,
922 S.W.2d at 500. Despite trial counsel’s assertion that he would not characterize his
decision as tactical because it happened so quickly, his testimony that he chose not to object
because he believed it would magnify the State’s argument that the petitioner was armed
with an assault rifle indicates he did, in fact, make a strategic and informed decision not to
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object to the prosecutor’s statement. The fact that a trial strategy or tactic failed or was
detrimental to the defense does not, alone, support a claim for ineffective assistance of
counsel. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is
given to sound tactical decisions made after adequate preparation for the case. Id.
Furthermore, the trial court instructed the jury to follow the law, not the opinions of the
attorneys, and we presume the jury followed those instructions. State v. Robinson, 146
S.W.3d 469, 494 (Tenn. 2004). The petitioner is not entitled to relief on this issue.

   C. Failure to Object to Unredacted Police Interview

       The petitioner argues trial counsel was ineffective for failing to object to the
admission of the unredacted video of the petitioner’s police interview. The petitioner
contends the video contained statements by the petitioner that he would have killed his
wife’s boyfriend and a friend from Fort Drum. The State contends the petitioner failed to
prove any ineffectiveness regarding the interview. The post-conviction court made the
following findings regarding this issue:

               [T]he video interview was admissible to prove the probative value and
       probative to the [petitioner’s] guilt. I don’t remember if it did or didn’t say
       but let’s assume that it did say he is going to kill his wife’s boyfriend if he
       ever saw him too. Well, he wasn’t charged and that’s the complaint, well, he
       wasn’t charged. It doesn’t matter. Again, the jury was able to hear all the
       proof in this case; who was the intended target and, in fact, if I remember
       correctly, and I don’t remember all of it, but I think it was said, if he’s there
       with her. I think that’s it but apparently he wasn’t so it doesn’t matter. But
       even if it did, the [c]ourt would not find by clear and convincing evidence
       that that would rise to the level of deficient performance by defense counsel
       in this case sufficient to prejudice the defense in violation of the defendant’s
       constitutional rights, both state and federal.

       At the post-conviction hearing, trial counsel testified he and the petitioner reviewed
the video prior to trial. Trial counsel was aware the petitioner stated he would have killed
his wife’s boyfriend and his friend at Fort Drum. Trial counsel testified he did not ask for
those statements to be redacted from the video because he “didn’t think of it.” He agreed
he should have asked for the video to be redacted and his decision was not strategic. On
cross-examination, trial counsel agreed the defense’s trial strategy was to argue the
petitioner was having a homicidal fantasy and did not intend to kill anyone.

       To prove prejudice on a claim that trial counsel was ineffective for failing to file a
motion to suppress, a petitioner must show “(1) a motion to suppress would have been
granted and (2) there was a reasonable probability that the proceedings would have
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concluded differently if counsel had performed as suggested.” Terrance Cecil v. State, No.
M2009-00671-CCA-R3-PC, 2011 WL 4012436 at *8 (Tenn. Crim. App. Sept. 12, 2011),
no perm. app. filed (citing Vaughn v. State, 202 S.W.3d 103, 120 (Tenn. 2006)). Therefore,
“[i]f a petitioner alleges that trial counsel rendered ineffective assistance of counsel by
failing to . . . file a motion to suppress . . . the petitioner is generally obliged to present . . .
the [evidence supporting the claim] at the post-conviction hearing in order to satisfy the
Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3-PC,
2013 WL 6021415 at *4 (Tenn. Crim. App. Nov. 8, 2013), perm. app. denied (Tenn. Mar.
17, 2014).

        While in hindsight, trial counsel’s decision not to object to the unredacted police
interview may have been ill-advised, a defendant is not entitled to perfect representation.
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). Additionally, “counsel
must make quick and difficult decisions respecting strategy and tactics that appear proper
at the time but which, later, may appear to others, or even to the trial lawyer himself, to
have been ill considered.” Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

       Even if we were to conclude that trial counsel’s representation in this regard fell
below the constitutional standard, the petitioner has failed to demonstrate he was
prejudiced by the alleged ineffective representation. The petitioner provided no proof to
support his assertion that a motion to suppress portions of his police interview would have
been granted. Nor has he shown that trial counsel’s decision regarding the admission of
the police interview effected the outcome of the proceedings, especially in light of the
overwhelming evidence presented at the petitioner’s trial. Accordingly, we conclude trial
counsel’s representation did not fall below an objective standard of reasonableness, and the
petitioner is not entitled to relief on this issue.

   D. Failure to Raise Issue of Ms. Burchett’s Testimony

       The petitioner argues trial counsel was ineffective for failing to raise on direct
appeal the admission of Ms. Burchett’s recorded preliminary hearing testimony without
proof that she was properly sworn as a witness at the preliminary hearing. The State
contends the post-conviction court accredited trial counsel’s testimony that Ms. Burchett
was sworn in.

       At the post-conviction hearing, trial counsel testified he objected to the admission
of Ms. Burchett’s preliminary hearing testimony because the State failed to prove she was
sworn in prior to her testimony. However, he later verified that she was, in fact, properly
sworn in at the preliminary hearing. Trial counsel testified he did not raise the issue on
appeal both because he discovered Ms. Burchett was properly sworn in and because he did

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not consider the issue to be particularly strong and wanted to focus on the strongest issues
on appeal.

       The test used to determine whether appellate counsel was constitutionally effective
is the same test applied to claims of ineffective assistance of counsel at the trial level.
Carpenter, 126 S.W.3d at 886. To establish a claim of ineffective assistance of counsel,
the petitioner must show that: 1) counsel’s performance was deficient; and 2) counsel’s
deficient performance prejudiced the outcome of the proceedings. Strickland, 466 U.S. at
687; see Carpenter, 126 S.W.3d at 886.

        When a petitioner bases his claim of ineffective assistance of counsel on counsel’s
failure to raise an issue on appeal, the petitioner proves deficient performance by showing
that “this omission was so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Carpenter, 126 S.W.3d at 887. The petitioner
satisfies the prejudice prong of the Strickland test by showing there is a reasonable
probability, or “a probability sufficient to undermine the confidence in the outcome,” that
but for counsel’s deficient performance, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694.

       “Appellate counsel is not constitutionally required to raise every conceivable issue
on appeal.” Carpenter, 126 S.W.3d at 887; citing King v. State, 989 S.W.2d 319, 334
(Tenn. 1999). Generally, appellate counsel has the discretion to determine which issues to
raise on appeal and which issues to leave out. Carpenter, 126 S.W.3d at 887. Thus, courts
should give considerable deference to appellate counsel’s professional judgment with
regard to which issues will best serve the petitioner on appeal. Id. Appellate counsel is
only afforded this deference, however, “if such choices are within the range of competence
required of attorneys in criminal cases.” Id.

        When a claim of ineffective assistance of counsel is based on the failure of appellate
counsel to raise a specific issue on appeal, the reviewing court must determine the merits
of the issue. Id. “If an issue has no merit or is weak, then appellate counsel’s performance
will not be deficient if counsel fails to raise it.” Id. Similarly, if the omitted issue has no
merit then the petitioner suffers no prejudice from counsel’s decision not to raise it. Id. If
the issue omitted is without merit, the petitioner cannot succeed in his ineffective assistance
claim. Id.

       Trial counsel testified he made a strategic decision not to raise the issue of Ms.
Burchett’s preliminary hearing testimony after verifying that Ms. Burchett was properly
sworn in and determining the issue was not as strong as the petitioner’s other issues. The
post-conviction court accredited the testimony of trial counsel, and nothing in the record
preponderates against the findings of the post-conviction court. See Tidwell, 922 S.W.2d
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at 500. Moreover, the petitioner has not shown the issue had any merit. He failed to present
any proof that Ms. Burchett was not properly sworn in and, therefore, has not shown he
suffered any prejudice from trial counsel’s failure to include the issue on appeal. The
petitioner is not entitled to relief on this issue.

    II.       Post-Conviction Court Error

       Finally, the petitioner argues the post-conviction court deprived him of due process
by sustaining the State’s objection to the testimony of Ms. Green, a juror at his trial.
Specifically, the petitioner contends he faces “a nearly insurmountable obstacle” in proving
prejudice without Ms. Green’s testimony and argues for a reversal of current law to allow
inquiry into the effects of certain evidence on jury deliberations. The State contends the
post-conviction court properly excluded Ms. Green’s testimony.

          Tennessee Rule of Evidence 606(b)3 states:

          Upon an inquiry into the validity of a verdict or indictment, a juror may not
          testify as to any matter or statement occurring during the course of the jury’s
          deliberations or to the effect of anything upon any juror’s mind or emotions
          as influencing that juror to assent to or dissent from the verdict or indictment
          or concerning the juror’s mental processes, except that a juror may testify on
          the question of whether extraneous prejudicial information was improperly
          brought to the jury’s attention, whether any outside influence was improperly
          brought to bear upon any juror, or whether the jurors agreed in advance to be
          bound by a quotient or gambling verdict without further discussion; nor may
          a juror’s affidavit or evidence of any statement by the juror concerning a
          matter about which the juror would be precluded from testifying be received
          for these purposes.

        The petitioner acknowledges Rule 606(b) prohibits testimony regarding jury
deliberations but argues such testimony is necessary to prove prejudice in the context of
post-conviction proceedings. The petitioner further argues he is being denied justice due
to a public policy which protects jurors from being “inconvenienced.” However, despite
the petitioner’s assertion, Rule 606(b) is not necessary merely to prevent jurors from being
inconvenienced. Instead, “Congress’ enactment of Rule 606(b) was premised on the
concerns that the use of deliberations evidence to challenge verdicts would represent a
threat to both jurors and finality in those circumstances not covered by the Rule’s express

          3
         Tennessee Rule of Evidence 606(b) and Federal Rule of Evidence 606(b) differ in one respect.
The Tennessee rule contains an additional exception allowing for juror testimony where “the jurors agreed
in advance to be bound by a gambling or quotient verdict.”
                                                 - 20 -
exceptions.” Warger v. Shauers, 574 U.S. 40, 50 (2014). The United States Supreme
Court noted “that attempts to impeach a verdict would ‘disrupt the finality of the process’
and undermine both ‘jurors’ willingness to return an unpopular verdict’ and ‘the
community’s trust in a system that relies on the decisions of laypeople.’” Pena-Rodriguez
v. Colorado, 137 S.Ct. 855, 866 (2017) (quoting Tanner v. United States, 483 U.S. 107,
120-21 (1987)). Indeed, allowing the introduction of juror testimony as proposed by the
petitioner would subject jurors to “harassment by the losing party who might seek to
impeach the verdict.” Walsh v. State, 166 S.W.3d 641, 646 (Tenn. 2005).

        Here, the petitioner called Ms. Green to testify regarding the effect the petitioner’s
trial testimony had on her deliberation. Because this testimony did not fall within one of
the exceptions of Rule 606(b), the post-conviction court properly sustained the State’s
objection. The petitioner is not entitled to relief on this issue.

                                        Conclusion

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.




                                               ____________________________________
                                               J. ROSS DYER, JUDGE




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