         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 3, 2009

                 THOMAS COTHRAN v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hickman County
                          No. 07-5030C    Timothy Easter, Judge


                   No. M2008-01071-CCA-R3-PC - Filed December 3, 2009


The Petitioner, Thomas Cothran, was convicted by a jury of four counts of aggravated vehicular
homicide, three counts of vehicular assault, and one count of driving under the influence. The
petitioner now appeals the denial of post-conviction relief, claiming the post-conviction court erred
in finding that he received effective assistance of counsel. Upon our review of the record, we affirm
the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Patrick D. Frogge, Nashville, Tennessee, for the Petitioner-Appellant, Thomas Cothran.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Michael J. Fahey, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

        Facts. The facts of the underlying convictions, as outlined by this court in the petitioner’s
direct appeal, are described below:

               The convictions at issue in this case stem from a horrific motor vehicle
       accident that occurred the night of July 19, 2002. The Defendant lost control of his
       truck while driving on Interstate Forty (I-40) in rural Hickman County, crossed the
       median and careened head-on into a minivan, killing four individuals and seriously
       injuring three. The Defendant was indicted by a Hickman County grand jury in a
       seventeen-count indictment in December of 2002, and received a jury trial in
       December of 2003.
        The record reflects that the victims, a family of seven, were driving east on
I-40 from west Tennessee on their way to Maryland to visit the children’s
grandparents when the accident occurred shortly after 9:00 at night. The Defendant,
a truck driver by profession, was traveling westbound on I-40 in a 19,000 pound
garbage truck on his way to California. Mr. Donald Person testified that he was
traveling eastbound on the same interstate that night and saw the Defendant’s truck
“acting erratically” on the opposite side of the interstate. Mr. Person slowed, and as
he did he witnessed the garbage truck side-swipe another truck then suddenly cross
the median, go “airborne,” and hit the minivan traveling just in front of him.

         Mr. Oscar Maynez, a professional truck driver, testified that he was following
the garbage truck west-bound when he observed it “bump” the truck it was
attempting to pass. Only moments earlier Mr. Oscar Maynez had been attempting
to pass the Defendant’s garbage truck himself when it cut in front of him, forcing him
to apply his engine brakes and “back off.” As he did, he saw the garbage truck signal
right as if to pull back in behind the other truck in an aborted attempt to pass, but in
doing so it side-swiped the truck and then started “going all over the road.” Mr.
Oscar Maynez stated that the Defendant “started fish-tailing, going crazy,” and then
“ran into the median . . . almost flipped over . . . then he got control again [and] he
went airborne onto the east bound side.”

         Mr. Miles Faulkenham, a professional truck driver from Nova Scotia, Canada,
testified that he was driving an empty tractor-trailer rig west-bound on I-40 that night,
and first saw the Defendant in his rearview mirror as the Defendant attempted to pass
him. Mr. Faulkenham stated that the Defendant approached fast, pulled up along side
his rig, struck him on the side of his trailer, then “started to weave” and ultimately
lost control and crossed the median.

        Immediately after the accident, several eye witnesses stopped their vehicles
and ran to the crash site. Mr. Person stated that he saw the Defendant climb out of
his overturned truck, and as he did he “threw something out of the truck,” which Mr.
Person later determined to be a beer can. When Mr. Person tried to talk to the
Defendant, the Defendant was “incoherent,” and did not know where he was. Mr.
Person also testified that he “smelled alcohol” on the Defendant; saw a twelve-pack
of Old Milwaukee’s Best beer near the garbage truck; and observed the State Trooper
conduct field sobriety tests. Based on his observations, Mr. Person concluded the
Defendant was intoxicated, further stating: “It is my opinion [the Defendant] was
impaired.”

        Mr. Oscar Maynez testified that when he first ran down the embankment
where the minivan had come to rest after being hit, he “started hearing little kids
crying, begging for help . . . crying for their mom and dad.” He then saw the
Defendant get out of his truck and “take a big ol’ chug of beer.” After the Defendant


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had taken this “long-ass chug” of Milwaukee’s Best beer, he threw the empty can
into the bushes. Mr. Oscar Maynez concluded that “it was obvious that [the
Defendant] was drunk,” stating that he smelled alcohol on the Defendant, and the
Defendant “stumbled,” and could not stand up straight.

        Mr. Manuel Maynez, the brother of Oscar Maynez, testified that he was in the
sleeper of the truck his brother was driving when the accident occurred. He exited
the truck and arrived at the accident scene in time to see the Defendant climb out of
his over-turned garbage truck and throw a beer can into the bushes. Mr. Manuel
Maynez also stated that the Defendant had alcohol on his breath, but when asked, the
Defendant denied he had been drinking. Mr. Manuel Maynez further described the
Defendant moments after the accident as “stumbling” and “mumbling.” At one
point, he was forced to grab the Defendant and pull him to safety after the Defendant
wandered out over the fog line and into a lane with on-coming traffic. Mr. Manuel
Maynez concluded that the Defendant “was not sober.”

       Mr. Faulkenham also testified that he observed the Defendant shortly after the
accident “walk with a limp or a slight stagger,” and found several beer cans on the
ground near the over-turned truck, which he gathered together, placed in the
cardboard beer case he found, and handed to the first State Trooper to arrive at the
scene. He stated that of the eight to ten beer cans he found, most were full, some
were empty, and some were damaged. Mr. Faulkenham also testified that he smelled
alcohol on the Defendant.

        Mr. Mark Pierce, an EMS paramedic, testified that he just happened to be
driving on I-40 that night and arrived on the scene shortly after the accident occurred.
He rushed to the minivan, which he described as “severely damaged.” He described
what he found inside as “seven patients total, and four appeared to have expired. The
three female patients that were in the rear seat of the vehicle were all-appeared to be
very badly injured.” He determined the injuries to the three live victims were “life
threatening,” and immediately called for helicopter transport. Mr. Stewart Fuqua of
the Tennessee City Volunteer Fire Department testified that he assisted in the
extraction of the victims from the wreckage. Because of the extensive damage, he
was forced to remove a passenger side door in order to remove the bodies of the two
small boys who were sitting in the middle seat. Next, he removed the seat itself, and
then was finally able to access the three living victims in the back seat, who were
placed on two life flight helicopters. Mr. Fuqua also assisted in removing the two
deceased adults from the front seats.

       Trooper Mark Blasco of the Tennessee Highway Patrol was the first law
enforcement officer to arrive on the scene. Trooper Blasco testified that he smelled
alcohol on the Defendant’s breath and asked if he had been drinking, to which the
Defendant responded that he had “a beer” in Chattanooga and pointed in the opposite


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direction from Chattanooga. Trooper Blasco administered several field sobriety tests,
including the finger-to-nose, one-leg-stand, and walk-and-turn tests. Trooper Blasco
testified that the Defendant performed “poorly” on the finger-to-nose test, could not
perform the one-leg-stand, and missed several steps on the walk-and-turn test.
Trooper Blasco stated that it “was obvious [the Defendant] was greatly impaired,”
and he placed him under arrest for DUI. The Trooper also stated that he found a
cardboard Milwaukee’s Best beer case inside the garbage truck, which contained four
unopened and cold cans of beer. He also found two nearly empty beer cans inside the
cab of the over-turned truck. Officer Blasco stated that he placed the cardboard case
and beer cans on the hood of his patrol car, but the rotor-wash from the life flight
helicopters blew the cans off his car, and when he returned he “made a mistake and
then threw them away.”

         Trooper Jacob Blackwell of the Tennessee Highway Patrol testified that he
retrieved the Defendant from the back of Trooper Blasco’s patrol car and transported
him to the hospital to have a blood sample drawn sometime between 11:00 p.m. and
1:00 a.m. Trooper Blackwell stated that he smelled alcohol on the Defendant, and
the Defendant stated to him that he had “a few” beers. Trooper Blackwell further
testified that the Defendant signed an implied consent form before the blood sample
was drawn, and that he personally delivered the Defendant’s blood sample to the TBI
crime lab. Special Agent Jerry Dickey, an investigator with the Tennessee Highway
Patrol, took the Defendant’s statement and attempted to interview him after the blood
sample was drawn. However, when asked if he had been drinking, the Defendant
stated: “I don’t want to answer that.” In the Defendant’s official statement for the
Highway Patrol accident report, he wrote: “all I remember is the vehicle started
swerving” and then “flipped over.”

        Troopers Randy Robinson and Allan Brenneis, both of the Tennessee
Highway Patrol Critical Incident Response Team, were certified as experts in
accident reconstruction and testified that the the [sic] evidence they collected showed
no signs of a defect in the road or tire blow-out. Rather, the evidence, primarily the
“yaw marks” left on the road by the garbage truck, indicate that it was going
approximately sixty-nine miles per hour when erratic steering caused a weight shift;
the truck started to slide toward the outside lane; then over-steering caused another
weight shift; the truck then slid in the other direction and continued to travel across
the median and into on-coming traffic. Trooper Robinson also testified that there
was no sign of any braking.

         Mr. Roger Edwards, the general manager of a Pilot Travel Center located just
off the interstate highway near Rising Fawn, Georgia, testified that he is in charge of
the store’s video surveillance tapes. The State played a tape for the jury purporting
to show the Defendant making a purchase of a six-pack. Mr. Edwards testified that
the tape contained footage of his store, taken at 5:30 p.m. on July 19, 2002, and that


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      the only products his store sold bound by plastic into a six-pack were cans of beer.
      Trooper Jerry Dickey identified the customer in the video as the Defendant.

              Special Agent John Harrison, a Forensic Scientist with the TBI, was certified
      as an expert in toxicology and retrograde extrapolation. Agent Harrison testified that
      the Blood Alcohol Content (BAC) of the Defendant’s sample submitted to his lab
      was 0.0699%. Using retrograde extrapolation, Agent Harrison testified that, in his
      opinion, at the time of the accident, approximately two to two and a half hours prior
      to when the Defendant’s blood was drawn, the Defendant’s BAC would have been
      approximately 0.08%. Agent Harrison further testified that some individuals can be
      impaired with as little as a 0.04% BAC. On cross-examination, Agent Harrison
      admitted that a variety of factors could effect the “average” upon which he based his
      calculations.

              Laura Hanlein, one of the surviving victims, testified that she was sleeping
      in the back seat of her family’s minivan when she awoke to the violent accident. As
      a result of the accident, the ligaments in her neck and left knee were torn; she lost
      seven inches of her small intestine; she broke a finger and both of her wrists; and she
      suffered brain and lung injuries. She was ten years old at the time of the accident.
      Brandi Knowles, the mother of victim Bayli Hanlein, testified that Bayli suffered a
      broken leg which required pins; her colon was perforated; and she endured multiple
      surgeries and extensive therapy and counseling. Bayli was seven at the time of the
      accident. James Duck, father of victim Jessica Duck, testified that Jessica broke both
      of her legs requiring plates and screws; broke her right arm requiring screws and
      rods; injured her lungs; suffered from internal bleeding; and endured multiple
      surgeries. Jessica was eleven at the time of the accident. The death certificates of
      the four victims killed in the accident, Bradley Duck, Andrew Duck, Janet Hanlein,
      and Joseph Hanlein, Jr. were read into the record.

              The Defense offered no evidence, but made a motion for judgment of
      acquittal, which was denied. The jury found the Defendant guilty of four counts of
      vehicular homicide, three counts of vehicular assault, and DUI. Pursuant to the
      bifurcated trial requirements, see Tenn. Code Ann. § 39-13-218(c), the jury was
      presented with evidence that the Defendant had a record of prior driving while
      intoxicated offenses. The jury then found the Defendant guilty of aggravated
      vehicular homicide and DUI, third offense. The trial court imposed consecutive
      sentences of twenty-five years for each aggravated vehicular homicide conviction,
      four years for each vehicular assault conviction, and eleven months, twenty-nine days
      and a $10,000 fine for the DUI third conviction. The Defendant timely filed a motion
      for a new trial, which was denied.

State v. Thomas W. Cothran, No. M2005-00559-CCA-R3-CD, 2005 WL 3199275, at *1-5 (Tenn.
Crim. App., at Nashville, Nov. 29, 2005) (footnotes omitted).


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        Post-Conviction Hearing. At the post-conviction hearing, the petitioner’s half-brother,
Steven Gray, testified that he helped the petitioner obtain legal representation. Gray, who is a
criminal defense attorney, did not serve as the petitioner’s counsel; however, he spent considerable
time reviewing the petitioner’s case. Gray testified that he hired David Heno to investigate the
collision. Heno did not testify at trial or at the post-conviction hearing. Gray said Heno had
experience in accident reconstruction through NASCAR; however, Gray acknowledged that Heno
did not have a degree in accident reconstruction. Gray claimed Heno was willing to testify that the
conclusions of his investigation differed from those of the Critical Incident Response Team. Gray
also testified that he provided trial counsel (“counsel”) with information about alcohol retrograde
extrapolation, which counsel did not use at trial.

         The petitioner testified that he had been a professional truck driver for most of his life. He
has no recollection of the collision other than “three bumps” and “mashing the seatbelt.” During
trial, the petitioner said he told counsel to question the State’s witness, Oscar Maynez, about whether
he had a driver’s license. The petitioner also told counsel to question Maynez about the use of his
“jake brakes.” Counsel did not question Maynez about either matter. The petitioner testified that
counsel had very limited knowledge of trucking. The petitioner said the elements of the charged
offenses were not explained to him, and that he was not informed that he could testify at his
sentencing hearing.

        Counsel testified that before representing the petitioner, he had tried only one homicide case.
Counsel’s defense theory was that the collision was not caused by the petitioner’s intoxication, but
by Oscar Maynez initially striking the petitioner’s trailer. Counsel said he did not interview Maynez
prior to trial. In preparing for trial, counsel relied entirely on the discovery he received from the
State. He could not recall filing a motion for discovery. Counsel did not thoroughly examine the
scene of the collision, or personally inspect the trailer that the petitioner initially struck. After
Maynez testified, counsel did not recall receiving a letter which said Maynez did not have a valid
driver’s license.

       Counsel testified that he did not pursue the testimony of Heno after learning he had a prior
conviction. Counsel said he hired an accident reconstruction expert to investigate the collision;
however, the expert’s conclusions were consistent with those of the Critical Incident Response
Team, and therefore he did not have the expert testify. Counsel said he did not attempt to contact
an alcohol retrograde expert, and he did not investigate the chain of custody for the petitioner’s blood
sample. Counsel put on no proof at trial or at the sentencing hearing.

         The post-conviction court determined that counsel’s performance was not deficient and did
not prejudice the petitioner. First, it found that counsel’s investigation of the case was reasonable.
It stated that counsel had “open file discovery,” which gave him access to all of the State’s evidence.
The court also determined that the petitioner was not prejudiced by counsel’s failure to interview
Oscar Maynez because Maynez was just one of several witnesses to testify about the collision.




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         Next, the court found that counsel’s performance was not deficient even though no experts
testified for the defense. The court noted that counsel contacted an expert in accident reconstruction;
however, the expert’s conclusions were not beneficial to the petitioner. The court said counsel’s
decision not to have Heno testify was reasonable because Heno had been convicted of driving under
the influence. Additionally, Heno might not have qualified as an expert witness. The court
acknowledged that neither Heno nor an expert in alcohol retrograde testified at the post-conviction
hearing. The court also found that counsel’s failure to object to “inflammatory and improper”
comments made by Oscar Maynez was not improper. The court stated that counsel’s conduct during
closing argument was “perhaps the most persuasive of the petitioner’s claims;” however, it found
that counsel “was able to pull it together and present a sufficient closing argument in the face of
overwhelming evidence . . .”

                                             ANALYSIS

         Standard of Review. Post-conviction relief is only warranted when a petitioner establishes
that his or her conviction is void or voidable because of an abridgement of a constitutional right.
T.C.A. § 40-30-103 (2006). Our supreme court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the appellate
       court will not re-weigh or re-evaluate the evidence; moreover, factual questions
       involving the credibility of witnesses or the weight of their testimony are matters for
       the trial court to resolve. The appellate court’s review of a legal issue, or of a mixed
       question of law or fact such as a claim of ineffective assistance of counsel, is de novo
       with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotations and citations omitted). The
petitioner bears the burden of proving factual allegations in the petition for post-conviction relief by
clear and convincing evidence. Id.; see also T.C.A. § 40-30-110(f) (2006). Evidence is clear and
convincing when there is no serious or substantial doubt about the accuracy of the conclusions drawn
from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Vaughn further repeated well-settled principles applicable to claims of ineffective assistance
of counsel:

                The right of a person accused of a crime to representation by counsel is
       guaranteed by both the Sixth Amendment to the United States Constitution and
       article I, section 9, of the Tennessee Constitution. Both the United States Supreme
       Court and this Court have recognized that this right to representation encompasses
       the right to ‘reasonably effective’ assistance, that is, within the range of competence
       demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal citation and quotation omitted).


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         In order to prevail on an ineffective assistance of counsel claim, the petitioner must establish
that (1) his lawyer’s performance was deficient and (2) the deficient performance prejudiced the
defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) and
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[F]ailure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim[, and] a court
need not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996).

        A petitioner successfully demonstrates deficient performance when the clear and convincing
evidence proves that his attorney’s conduct fell below an objective standard of “reasonableness under
prevailing professional norms.” Id. (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065). Prejudice
arising therefrom is demonstrated once the petitioner establishes “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A
‘reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id.
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

         I. Ineffective Assistance of Counsel. The petitioner claims the post-conviction court erred
in denying his petition for post-conviction relief. He argues that counsel failed to: (1) adequately
investigate a State’s witness; (2) obtain the testimony of expert witnesses in accident reconstruction
and alcohol retrograde extrapolation; (3) advise the petitioner not to make incriminating statements
in a collateral civil proceeding; (4) object to inflammatory comments made by a State’s witness; and
(5) perform an effective closing argument. The petitioner also claims the cumulative effect of these
alleged errors denied the petitioner the effective assistance of counsel.

        The petitioner asserts that counsel “conducted no investigation at all” even though Maynez
was central to the petitioner’s defense theory. First, the petitioner claims counsel was ineffective
because he failed to adequately investigate a State’s witness, Oscar Maynez. The State argues the
petitioner cannot establish deficient performance or prejudice because Maynez did not testify at the
post-conviction hearing. The State also contends the post-conviction court properly found that prior
investigation of Maynez would not have affected the outcome of the trial.

       We agree with the post-conviction court that the petitioner cannot establish deficient
performance or prejudice. In Black v. State, this court held:

        When a petitioner contends that trial counsel failed to discover, interview, or present
        witnesses in support of his defense, these witnesses should be presented by the
        petitioner at the evidentiary hearing. As a general rule, this is the only way the
        petitioner can establish that (a) a material witness existed and the witness could have
        been discovered but for counsel’s neglect in his investigation of the case, (b) a known
        witness was not interviewed, (c) the failure to discover or interview a witness inured
        to his prejudice, or (d) the failure to have a known witness present or call the witness



                                                   -8-
        to the stand resulted in the denial of critical evidence which inured to the prejudice of
        the petitioner.

Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Here, the petitioner contends an
investigation of Maynez would have produced evidence that Maynez was not a credible witness and
possibly caused the collision. However, Maynez did not testify at the post-conviction hearing, and
therefore we will not speculate about whether an investigation would have produced such evidence.
Id. Additionally, several other witnesses testified about how the collision occurred. Donald Person
testified that he saw the petitioner drive erratically before side-swiping the trailer driven by
Faulkenham. Faulkenham testified that the petitioner struck his trailer from the side. Neither witness
said Maynez was involved in the collision. The record supports the post-conviction court’s
determination that further investigation of Maynez would not have affected the outcome of the trial.
The petitioner is not entitled to relief on this issue.

        Next, the petitioner argues that counsel’s performance was ineffective because he failed to
obtain the testimony of an expert in accident reconstruction or alcohol retrograde extrapolation. The
State claims that the petitioner cannot show deficient performance or prejudice because he did not
have an expert in either subject testify at the post-conviction hearing. We agree with the State. Under
Black, the petitioner needed to present the testimony of all potential expert witnesses at the hearing
in order to establish that “a material witness existed and the witness could have been discovered but
for counsel’s neglect in his investigation of the case.” Id. Here, no expert witnesses testified at the
post-conviction hearing. Again, we will not speculate about what the testimony of an expert in
accident reconstruction or alcohol retrograde extrapolation might have been. Id. We also reject the
petitioner’s claim that this case is comparable to Tavarus Williams v. State, in which this court made
an exception to this court’s holding in Black. No. 02C01-9711-CR00423, 1998 WL 742348, at *7
(Tenn. Crim. App., at Jackson, Oct. 23, 1998). Tavarus Williams is distinguishable because the
petitioner in this case presented no evidence of what the testimony of the expert witnesses would have
been. Id. We agree with the post-conviction court that an exception to our holding in Black is not
warranted.

        The petitioner also contends counsel was ineffective because he failed to advise the petitioner
not to make incriminating statements in a collateral civil proceeding. We decline to consider this
issue because it was not included in the petition for post-conviction relief. See T.C.A. § 40-30-106(d)
(“The petition must contain a clear and specific statement of all grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds.”); see also Tennessee Supreme Court
Rule 28, section 5(E) (“The petition shall contain . . . (3) each and every error that petitioner asserts
as a ground for relief, including a description of how petitioner was prejudiced by the error(s).”).
Accordingly, we conclude the petitioner is not entitled to relief on this issue because he failed to
comply with the rules governing post-conviction relief.

       Next, the petitioner claims counsel was ineffective because he did not object to statements
made by Oscar Maynez at trial. Maynez testified that after the collision occurred, he told two
bystanders, “‘You know, this asshole right here just hit a family just because he wants to be drinking,


                                                  -9-
he wants to be drinking and driving in a big, you know, garbage truck.’” The petitioner argues that
these statements were irrelevant and unfairly prejudicial. We agree with the petitioner that counsel
should have raised an objection based on Tennessee Rule of Evidence 403. We cannot conclude,
however, that the petitioner was prejudiced by Maynez’s statements. Maynez already testified that
he watched the petitioner drive erratically, before bumping a tractor and colliding with the victim’s
vehicle. Maynez also testified that the petitioner was obviously intoxicated and took “a big ol’ chug
of beer” immediately after the collision. The statements at issue expressed Maynez’s personal
reaction to his prior admissible testimony. While Maynez’s inflammatory comments warranted an
objection, they certainly did not affect the outcome of the trial. The petitioner is not entitled to relief
on this issue.

        The petitioner also argues that he received ineffective assistance of counsel based on counsel’s
closing argument. Counsel abruptly paused on two different occasions during his closing argument.
After the first pause, he stated, “You’ll have to excuse me. This is frustrating for me, this is a big case
and my mind is swirling, so if I could collect myself for a second.” Later, after the second pause,
counsel stated, “I do apologize. It’s not my habit to be taken off-guard like this. This is a difficult
case.” The petitioner argues that counsel’s closing argument showed he was overwhelmed by the case
and was unable to adequately represent the petitioner. The State contends the post-conviction court
did not err in finding that the closing argument was not deficient or prejudicial.

        The post-conviction court found that counsel, despite becoming “temporarily distracted,” was
able to “pull it together and present a sufficient closing argument in the face of overwhelming
evidence against the Petitioner.” Our review of the court’s finding is somewhat limited, as the record
does not indicate the length or manner of counsel’s pauses. The record shows that counsel became
flustered during his closing argument, and that he expressed his frustration with the case, which he
said was difficult. This evidence alone does not preponderate against the finding of the post-
conviction court. Additionally, we cannot conclude the petitioner was prejudiced by counsel’s closing
argument. The trial court stated, “[T]his Court is hard pressed to envision a case wherein the proof
would be more beyond a reasonable doubt than this case.” We agree with the post-conviction court
that counsel’s closing argument did not affect the outcome of the trial. Therefore, the petitioner is
denied relief on this issue.

        Lastly, the petitioner claims the cumulative effect of counsel’s alleged errors denied him
effective assistance of counsel. The State argues that the petitioner failed to establish deficient
performance or prejudice for any of the alleged errors. Upon review, we hold the petitioner was not
prejudiced by counsel’s representation. Accordingly, the petitioner is not entitled to relief.

        Conclusion. Based on the foregoing, the judgment of the post-conviction court is affirmed.


                                                                 ______________________________
                                                                 CAMILLE R. McMULLEN, JUDGE



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