         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                   Assigned on Briefs December 13, 2005 at Knoxville

              JOHNNY DEE ROBERTS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                        No. 2001-C-1812    Cheryl Blackburn, Judge



                    No. M2005-00215-CCA-R3-PC - Filed January 10, 2006


The petitioner, Johnny Dee Roberts, appeals from the Davidson County Criminal Court’s dismissal
of his petition for post-conviction relief, in which the petitioner had attacked his 2002 convictions
of aggravated rape and aggravated sexual battery. The post-conviction court determined that (1) the
petitioner failed to establish either the deficient performance of trial counsel or that he was
prejudiced by the actions of counsel and that (2) the issue of prosecutorial misconduct had been
previously determined on direct appeal. Because the record supports the post-conviction court’s
ruling, we affirm the denial of relief.

               Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Johnny Dee Roberts.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                              OPINION

                 This court’s opinion adjudicating the petitioner’s direct appeal sets forth the facts of
the conviction offenses. See State v. Johnny D. Roberts, No. M2002-02996-CCA-R3-CD (Tenn.
Crim. App., Nashville, July 30, 2003). To summarize, the female victim went into the garage of her
condominium about 1:00 a.m. on July 28, 2001, and when she raised the garage door, the petitioner
entered, pulled down her shorts, and inserted his finger into her vagina. Id., slip op. at 1-2. As they
fell to the floor and struggled, the victim bit the petitioner’s cheek and ear and scratched him. Id.,
slip op. at 2. The petitioner ran away but left behind his hat and a necklace. Id. A medical
examination of the victim revealed vaginal irritation, and when arrested, the petitioner had scratches
on his face and elbow and a cut on his ear. Id., slip op. at 2-3. A DNA analysis linked the blood
found on the victim’s clothing to the petitioner. Id., slip op. at 3. The jury convicted the petitioner
of aggravated rape and aggravated sexual battery.

               In the post-conviction evidentiary hearing, the petitioner testified that he met with his
court-appointed trial counsel “at least six to eight times” prior to trial. He agreed that counsel had
opined that the petitioner’s version of the facts of the case was not believable.

                 He testified that counsel “kept like trying to persuade [him] not to testify” and told
him that “they would max [him] out or give [him] the max” if he testified. He recounted that counsel
said, “[I]f you want me to sit and – to keep you from getting 25 years, she said, yeah, I will beg you
not to testify.” He acknowledged that he “finally gave in” because of the “excitement and stress at
the time.” On the day of trial, he signed a written waiver of his right to testify. He acknowledged
that counsel read the written waiver form to him and that he understood that the decision whether
to testify was his.

                 The petitioner testified in the evidentiary hearing that, at trial, he would have testified
that he met the victim at a local pub, that she told him where she lived, that she was new to the area,
and that she had some pills to sell. The petitioner said he would have testified at trial that, after the
victim left the pub, he walked to her condominium to tell her he might be able to find a buyer for her
pills. She was in the driveway at her car, and the petitioner said that his approach startled her,
resulting in the victim’s assault of the petitioner.

                 The petitioner’s trial counsel testified in the evidentiary hearing that she had been
practicing criminal law for approximately 14 years. She testified that she held 20 “face-to-face”
meetings with the petitioner prior to trial. She testified that the petitioner rejected her
recommendation to accept a plea offer of 12 years’ incarceration. Additionally, she testified, “[I]t
was always my belief that Mr. Roberts would not help his case by testifying.” She acknowledged
that she often expressed this opinion to the petitioner. She testified that the petitioner’s account of
the encounter with the victim “sounded false” and was inconsistent with the accounts of witnesses
who observed the petitioner on the night of the offense. The petitioner had made a “terrible witness”
during a pretrial suppression hearing, and counsel expected devastating impeachment evidence if the
petitioner testified at trial. Counsel testified that the decision whether the petitioner would testify
was not made until after the state closed its case-in-chief. She affirmed that she informed the
petitioner that, regardless of her recommendation, he could testify if he elected to do so.

                 In its written order, the post-conviction court determined that the petitioner had failed
to establish that trial counsel had performed deficiently with respect to the petitioner’s waiver of his
right to testify and that in any event, no prejudice was shown. The court further held that the issue
of the prosecutor’s claimed closing-argument reference to the petitioner’s election to not testify had
been previously determined by the court of criminal appeals. We agree that the petitioner
established no claim to post-conviction relief.




                                                    -2-
               When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below
the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceedings would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994). Courts need not address both Strickland components in any particular
order or even address both if the petitioner fails to meet his burden with respect to one. Henley v.
State, 960 S.W.2d 572, 580 (Tenn. 1997). On review, there is a strong presumption of satisfactory
representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                In evaluating counsel’s performance, this court should not examine every allegedly
deficient act or omission in isolation, but rather we view the performance in the context of the case
as a whole. State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern
of the court should be the fundamental fairness of the proceeding being challenged. Id. Therefore,
this court should not second-guess tactical and strategic decisions of defense counsel. Henley, 960
S.W.2d at 579. Instead, this court must reconstruct the circumstances of counsel’s challenged
conduct and evaluate the conduct from counsel’s perspective at the time. Id.; see also Irick v. State,
973 S.W.2d 643, 652 (Tenn. Crim. App. 1998). A court must

               “consider the totality of the evidence before the judge or jury. Some
               of the factual findings will have been unaffected by the errors, and
               factual findings that were affected will have been affected in different
               ways. Some errors will have had a pervasive effect on the inferences
               to be drawn from the evidence, altering the entire evidentiary picture,
               and some will have had an isolated trivial effect . . . .”

Henley, 960 S.W.2d at 580 (quoting Strickland, 466 U.S. at 696-97, 104 S. Ct. at 2069).

                 The post-conviction procedure may not be used to re-litigate issues that have been
“previously determined.” See Tenn. Code Ann. § 40-30-106(f) (2003). A ground for relief is
previously determined when “a court of competent jurisdiction has ruled on the merits after a full
and fair hearing.” Id. § 40-30-106(h) (2003). “A full and fair hearing has occurred where the
petitioner is afforded the opportunity to call witnesses and otherwise present evidence, regardless
of whether the petitioner actually introduced any evidence.” Id.; see Miller v. State, 54 S.W.3d 743,
747-48 (Tenn. 2001) (holding that issue raised and resolved in the petitioner’s direct appeal “cannot
be revisited in this post-conviction proceeding”).

               The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). On appeal, the appellate
court accords to the trial court’s findings of fact the weight of a jury verdict, and these findings are



                                                  -3-
conclusive on appeal unless the evidence preponderates against them. Henley, 960 S.W.2d at
578-79; Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

                We agree with the post-conviction court that the petitioner failed to establish by clear
and convincing evidence that the petitioner’s trial counsel deficiently represented the petitioner in
facilitating his waiver of his right to testify. The post-conviction court accredited counsel’s
testimony that she had strategic concerns about the petitioner’s testifying1, that she expressed her
reservations to the petitioner, and that he voluntarily chose to waive in writing his right to testify.
The petitioner acknowledged that counsel read the waiver to him and that he understood that the
decision was his alone. The record, therefore, supports the post-conviction court’s ruling that the
petitioner failed to show deficient performance of trial counsel on the issue of waiving the right to
testify.

               The claim of prosecutorial misconduct during closing argument was described by this
court in Johnny D. Roberts:

                  In his closing argument, the prosecutor stated, “Now, let’s talk about
                  what [the victim] did say, because she’s the only one that gave a
                  version of what happened. She’s the person who told you what
                  happened.” The defendant objected, arguing that the prosecutor had
                  commented on the defendant’s right not to testify, and the trial court
                  responded with the following curative instruction:

                                     All right. Ladies and gentlemen, you
                                     are to disregard the last remarks of
                                     counsel. Again, counsel’s statements
                                     are not evidence and are intended just
                                     to assist you. The defendant is not
                                     required to testify and you can make
                                     no inference from that fact.

Johnny D. Roberts, slip op. at 6.

                The petitioner’s amended petition for post-conviction relief casts this issue as one of
prosecutorial misconduct resulting in a violation of the petitioner’s right to refrain from self-
incrimination. The post-conviction court apparently understood the issue as such and held that the
issue had been previously determined on direct appeal. Indeed, as a primary issue, the claim was
determined by this court in Johnny D. Roberts. The Johnny D. Roberts court said, following its
analysis of the issue, “We conclude that the [prosecutor’s] comment did not affect the verdict and


         1
           This court’s opinion in Johnny D. Roberts states, relative to a sentencing issue, that “the defendant has prior
convictions for attempted rape, indecent exposure, assault, burglary, and many other offenses.” Johnny D. Roberts, slip
op. at 8.

                                                           -4-
does not require reversal.” Id., slip op. at 7. We hold that the primary legal issues surrounding the
prosecutor’s comments were previously determined and may not be re-litigated in a post-conviction
proceeding.

                 In the petitioner’s brief, however, he casts the issue as one of ineffective assistance
of counsel, based upon his claim that counsel failed to object to the prosecutor’s commentary,
including the prosecutor’s reference to “letting the cat out of the house” as a comment upon the
petitioner’s failure to testify. We note that trial counsel testified that she objected to the “letting the
cat out of the house” remark and raised it on appeal. The post-conviction court did not comment on
the testimony because it treated the issue as one of primary error that had been previously
determined.

                As mentioned, the pleadings do not cast the issue as one of ineffective assistance of
counsel, and the post-conviction court did not adjudicate the effectiveness of counsel relative to the
state’s closing argument. This court generally will not find error premised upon a theory raised for
the first time on appeal. See Tenn. R. App. P. 36(a).

               In any event, on direct appeal, this court held that “the trial court’s curative instruction
was sufficient to correct any possible prejudice that resulted from the statement. The jury’s
compliance with the instruction by the trial court is presumed.” Johnny D. Roberts, slip op. at 7.
The Johnny D. Roberts court’s adjudication that the petitioner experienced no prejudice as a result
of the prosecutor’s remarks compels this court in this post-conviction action to hold that no
Strickland prejudice resulted from counsel’s actions. This determination forecloses post-conviction
relief.

                For the reasons articulated, we affirm the denial of post-conviction relief.



                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




                                                   -5-
