        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 26, 2013

               GARY THOMAS REED v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Cumberland County
                     No. 08-0107A    Leon C. Burns, Jr., Judge




                 No. E2013-00169-CCA-R3-PC - Filed August 30, 2013


A Cumberland County jury convicted the Petitioner, Gary Thomas Reed, of initiating the
process of manufacturing methamphetamine. This Court affirmed the Petitioner’s conviction
and sentence on appeal. State v. Gary Thomas Reed, No. E2009-02238-CCA-R3-CD, 2011
WL 1842711 (Tenn. Crim. App., at Knoxville, Aug. 24, 2011), perm. app. denied (Tenn.
Aug. 24, 2011). The Petitioner timely filed a petition for post-conviction relief claiming that
he had received the ineffective assistance of counsel. The post-conviction court denied relief
after a hearing. On appeal, the Petitioner claims that his attorney failed to call an exculpatory
witness at trial and failed to object to a violation of the sequestration rule. After a thorough
review of the record, the briefs, and relevant authorities, we affirm the post-conviction
court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Jeffrey A. Vires, Crossville, Tennessee, for the Appellant, Gary Thomas Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall A. York, District Attorney General; and Amanda M. Hunter, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

                                            I. Facts
                                          A. Trial

        A Cumberland County jury convicted the Petitioner of initiating the process of
manufacturing methamphetamine, a Class B felony. On direct appeal, this Court provided
the following summary of the facts presented at trial:

             Investigator Jeff Slayton of the Cumberland County Sheriff’s
      Department testified that he had participated in approximately 20
      methamphetamine laboratory investigations in the past year. As a part of
      Investigator Slayton’s training for his position, he completed a course on
      clandestine laboratory safety through the Drug Enforcement Administration.
      In this course, he “learned what components were used to manufacture
      methamphetamine and how those components combined actually produced
      meth.” He also “learned how to safely investigate clandestine laboratories,
      how to go in and dismantle one so it could be cleaned up by hazardous
      material groups.”

              Investigator Slayton testified that after receiving some indication that
      a methamphetamine laboratory was present on a property located on Lynch
      Road, he and his team began surveillance of the property on June 3, 2008.
      There were “several abandoned trailers” parked on the property that appeared
      to be uninhabited, but there was also another trailer located on the property
      that the Defendant appeared to be living in. Jerry King owned the property
      and the inhabited residence. While there was no electricity supplied by the
      utility district, there was a generator located at the back of the residence.
      However, the water from the utility district had been connected using the
      Defendant’s name. Everett Bolin, Jr., of the Crab Orchard Utility District
      testified that the “meter-reading history report” for the property on Lynch Road
      reflected that the Defendant requested water for the property in his name on
      June 5, 2008. The last reading of the meter was made on September 12, 2008.

             Investigator Slayton testified that he and other members of his team
      stayed at the property observing the residence from the woods “in the
      nighttime hours” until the “early morning hours” as a part of their surveillance.
      While Investigator Slayton was not physically staying on the property every
      day, the surveillance team utilized cameras to record the activities on the
      property. When Investigator Slayton was present, he was able to identify the
      Defendant and “numerous individuals that were entering and leaving” the
      residence. However, the Defendant was the person he “viewed most often
      entering and leaving” the residence. The Defendant spent the night at the

                                             -2-
residence and was observed “riding a four-wheeler” and “doing something
with some equipment outside of the residence” on the property.

       On June 25, 2008, a warrant was obtained to search the residence.
Based upon the surveillance of the residence, Investigator Slayton believed
there would be “anywhere from 12 to possibly 16 people at that residence”
when they executed the search warrant. Several hours before they entered the
residence, Investigator Slayton observed the Defendant “continually go to a
back bedroom” inside the residence. When they entered the residence, there
were 13 people present, including the Defendant and his co-defendant, Jessica
Hale. FN1

       FN1. She pled guilty to attempt to manufacture
       methamphetamine and received a six-year sentence, suspended
       to probation.

       Sergeant Rick Lanzilotta of the Cumberland County Sheriff’s
Department testified that he participated in the execution of the search warrant
on the property located on Lynch Road on June 25, 2008. When he entered the
residence, he proceeded to the back bedroom. As he approached the bedroom,
the Defendant slammed the bedroom door in his face. After Sergeant
Lanzilotta broke the door down, he arrested the Defendant.

        Investigator Casey Cox of the Cumberland County Sheriff’s
Department testified that he had been involved with 85 to 90 percent of the
methamphetamine laboratory investigations in Cumberland County and that
all of his training and certifications have enabled him to properly investigate
such cases. He stated that a person can manufacture methamphetamine in
more than one way but that in Cumberland County, he found that red
phosphorus laboratories were more popular. Investigator Cox explained that
red phosphorous laboratories manufacture methamphetamine using ephedrine
or psuedoephedrine, iodine crystals, and red phosphorous. He stated that the
most important ingredient in the process is ephedrine or psuedoephedrine
because it is the only ingredient in the manufacturing process that must be
present.

       As relevant to this case, Investigator Cox stated that in order to use the
most important ingredient, psuedoephedrine, the manufacturer must break the
“binder away from the pill.” The binder can be removed by mixing the tablet
with Heet, which will dilute the pill, forming what is commonly called an

                                       -3-
ephedrine wash. The ephedrine wash is then poured through a filtering
system, which separates the binder from the liquified ephedrine. Generally,
manufacturers use coffee filters to separate the binder. The resulting liquid
can be stored in any type of container, such as a Mason jar.

       Investigator Cox explained that the three ingredients, ephedrine, iodine
crystals, and red phosphorous, are then “combined together and heated,”
creating a methamphetamine base. The methamphetamine base can be mixed
with a solvent, such as camp fuel and then filtered to remove the
methamphetamine crystals, the final product. Manufacturers may also create
a gas using a homemade generating system and muriatic acid that will heat the
base, causing the methamphetamine crystals to form. The base is then filtered,
removing the crystals. The crystals can be whitened with acetone, which
makes the crystals appear to have a higher concentration. The crystals are
generally weighed and placed into small bags for selling purposes.

        Investigator Cox participated in the investigation of the Defendant’s
case and collected the evidence found in the back bedroom of the residence.
He found a black bag with pink lining on the bed. The bag contained a digital
scale, a turkey baster, rubber gloves, a small container, a rubber stopper with
green duct tape on top with a small hole in the top, rubber tubing, clear plastic
tubing, pH strips, Mason jar lids, a bottle of Visine that contained muriatic
acid, and a small glass pipe. In the plastic container with the pink lid, he found
red phosphorous. He found coffee filters that appeared to be “damp” around
the edges and a clear plastic bag that contained left-over red phosphorous.

       Underneath the dresser in the bedroom, Investigator Cox found several
four-quart Mason jars. The jars contained an ephedrine wash. One of the jars
was a “pinkish-red color.” He explained that the substance was a different
color because the manufacturer had probably used a Sudafed pill, which
contained a dye, to create the wash. He admitted that he was unable to
conclusively determine when the ephedrine wash was created or how long the
jars had been in the bedroom. He stated that the items found in the room were
commonly used in the manufacturing process of methamphetamine and that
the “only legitimate purpose” for the presence of the items was to manufacture
methamphetamine.

       Also inside the bedroom, he found a leaf blower, three or four
chainsaws, a “toy bulldog” attached to the mirror, mail addressed to the
Defendant, and a binder that contained paperwork and documents bearing the

                                       -4-
       Defendant’s name. He stated that the Defendant was commonly referred to as
       “Bulldog.”

              Janice Hall testified for the Defendant and stated that she worked for
       the Defendant, who owned his own landscaping business. She stated that the
       Defendant lived on Moonlight Trail and that the property on Lynch Road was
       used to store his business equipment. Ms. Hall testified that she sold a black
       bag with pink lining to the co-defendant at a yard sale. Ms. Hall stated that she
       saw the co-defendant with the bag approximately two weeks before the
       Defendant was arrested. On cross-examination, she admitted that she had a
       child with the Defendant’s brother.

               Natasha Bowman testified that she also worked for the Defendant and
       that the Defendant was living on Moonlight Trail at the time of his arrest. She
       admitted that he stored his work equipment on the property on Lynch Road.
       She stated that everyone who worked for the Defendant met at the property on
       Lynch Road at the beginning of the day. She stated that on June 25, 2008, she
       had worked with the Defendant in Fairfield Glade before bringing the
       equipment back to the property on Lynch Road. She testified that Ms. Hall
       was her friend and that Ms. Hall sold her bag to the co-defendant, who was at
       the property on Lynch Road when they returned the equipment on June 25,
       2008.

Gary Thomas Reed, 2011 WL 1842711, at *1-3.

       The trial court sentenced the Defendant as a Range II, multiple offender to sixteen
years in the Tennessee Department of Correction.

                                     B. Post-Conviction

        The Petitioner timely filed a post-conviction petition claiming that he received the
ineffective assistance of counsel at trial. At the hearing on the petition, the parties presented
the following evidence: Jessica Hale testified on behalf of the Petitioner and stated that on
June 28, 2009, law enforcement searched her trailer and found items used for the
manufacture of methamphetamine. As a result of the search and resultant discovery of these
items, Hale pled guilty to manufacture of methamphetamine, and a trial court sentenced her
to serve a six-year probation sentence.

       Hale testified that the Petitioner was her ex-boyfriend. She said that he had lived with
her “[o]n and off” in April and May 2008, but on June 25, 2008, he was living with Janice

                                               -5-
Hall. She said that the Petitioner was unaware of the drug activity in her residence. When
the Petitioner was arrested, Hale offered to testify on his behalf and assume all responsibility
for the items law enforcement found. Hale said that she never spoke with the Petitioner’s
attorney (“Counsel”).

       On cross-examination, Hale agreed that she pled guilty before the Petitioner’s trial.
Hale admitted that she pled “no contest” to the charges and, on a court form requesting
diversion, she wrote that the basis of the charges was her possession of a “friend’s key chain”
in which methamphetamine was found. The form also indicated that Hale had pending
matters and refused to testify at the Petitioner’s trial. Hale explained that she “should have
marked that out” as incorrect. She denied refusing to testify at the Petitioner’s trial and stated
that she was “never given an option.”

       Hale testified that she spoke with law enforcement at the time of the search and denied
ownership of the residence or items inside. She later spoke with Investigator Cox and again
denied ownership of the drug-related items. Hale said that she “didn’t know what [the
Petitioner] was doing.” She said that she did not remember telling Investigator Cox, during
the same conversation, that the Petitioner’s response to her desire to participate in
rehabilitation was, “[y]ou better not turn state’s evidence against [me].”

       Hale clarified that she did not live in the trailer where the drug-related items were
found but “by it.” Hale said that she was aware that law enforcement had been conducting
surveillance of the trailer for approximately a month before the search. She said she
observed the Petitioner frequenting the trailer. She agreed that the Petitioner had stayed there
“a few nights in a row.” Hale maintained that all of the items associated with
methamphetamine found in the trailer were hers, even though all of the items were found in
the room where the Petitioner stayed.

       The Petitioner testified that Counsel failed to adequately investigate his witness, Hale,
in preparation for trial. He said he told Counsel that Hale would claim all of the items. The
Petitioner recalled that Counsel told him he spoke with Hale, and Hale told him that the
Petitioner had threatened to kill her. The Petitioner said he knew that this was a lie because
Hale told the Petitioner she had never spoken with Counsel. The Petitioner denied ever
threatening Hale or telling her that she “better not turn state’s evidence.” The Petitioner
denied living in the trailer but was present on the night of the search.

        The Petitioner testified that a subpoena was issued requiring Hale’s appearance to
testify at the motion for new trial hearing. When the Petitioner asked Counsel about Hale
testifying, Counsel told him he would not be calling Hale to testify but instead would be
relying on her affidavit. The Petitioner said that Counsel provided no explanation as to his

                                               -6-
reliance on the affidavit rather than presenting testimony from Hale.

      The Petitioner testified that when Investigator Cox testified at trial, he referenced
Sergeant Lanzilotta’s previous testimony during the trial, which indicated that the witnesses
had spoken to each other outside of court. The Petitioner said that he did not raise this issue
with Counsel but that Counsel should have “struck his testimony, or - - and had him
impeached.”

         On cross-examination, the Petitioner admitted that he had no personal knowledge of
what was said outside of court during the alleged conversations, but he inferred that there
were conversations based on Investigator Cox’s reference to Deputy Lanzilotta’s testimony
at trial. The Petitioner agreed that he was unaware that the State was allowed to designate
a witness to remain present in the courtroom during the trial. He said that he could not recall
whether Investigator Cox was seated at the State’s table throughout the trial.

       The Petitioner testified that the affidavit presented at the motion for new trial hearing
was drafted by Counsel and signed by Hale. The Petitioner said that he never objected when
Counsel told him he planned to rely on the affidavit but said that he told Counsel he wanted
Hale to testify.

        The Petitioner maintained that he never threatened Hale and had no knowledge of the
methamphetamine found in the trailer. The Petitioner admitted that he had previous
convictions related to methamphetamine and knew how to make methamphetamine. The
Petitioner admitted to spending the night at the trailer “on occasion” and keeping clothes and
work equipment in the trailer. The Petitioner said he was unaware of the specific location
of the work equipment in the trailer because his workers would store the equipment in the
trailer. He said that “several guys” that worked for him “stayed there.” The Petitioner
maintained that he was unaware that methamphetamine was being made in the trailer.

       Counsel testified that, in March 2009, he represented the Petitioner in a trial on the
charge of initiation of methamphetamine. Throughout the course of his representation,
Counsel said that he and the Petitioner had “very limited conversations.” He described the
Petitioner as “reluctant” or “unable to meet” to discuss the case as often as Counsel would
have preferred. His notes indicated numerous letters sent to the Petitioner to notify him of
an impending court appearance and requesting a meeting to discuss the case. The Petitioner,
however, was “for whatever reason . . . unable” to meet with Counsel.

       Counsel said that he reviewed Hale’s two statements to police in the discovery
materials. She gave one of the statements around the time of her arrest in June 2008, and she
provided the second statement in March 2009. Both statements denied ownership of the drug

                                              -7-
materials.

        Counsel testified that, through court records, he learned that Hale had filed a pretrial
diversion application and, closer to the trial date, that she had entered a guilty plea. Upon
seeing her entry of a guilty plea, Counsel made contact with Hale to see if she was willing
to provide any information that would assist in the defense of the Petitioner at trial. An
investigator met with Hale shortly before the Petitioner’s trial, and Hale said she did not want
to testify. Hale said that the Petitioner lived in the Lynch Road trailer and that the items
found were the Petitioner’s items. Hale told the investigator that the Petitioner threatened
to kill her, so it was better for her not to testify.

        Counsel testified that he told the Petitioner that Hale would not testify. He explained
that he had a meeting scheduled with the Petitioner on Tuesday afternoon before the trial, and
the Petitioner never showed up. The Petitioner failed to meet Counsel at his office on
Wednesday and was late to court on Thursday. When Counsel was finally able to meet with
Counsel on Thursday in court, he told the Petitioner that Hale would not testify. Counsel said
that the Petitioner appeared to understand that Hale would assert her Fifth Amendment
privilege or would not testify favorably. Counsel said that the Petitioner did not “insist” he
call Hale to testify, but, if he had, Counsel would have advised against it based on credibility
concerns.

        Counsel testified that, after the jury convicted the Petitioner but before the hearing on
the motion for new trial, he saw Hale in general sessions court and she “gave [him] the
impression that she would be willing to sign an affidavit or testify at the motion for new trial
hearing.” Counsel identified Hale’s affidavit that he had submitted during the motion for
new trial hearing. Additionally, he had Hale served in jail with a subpoena for the motion
for new trial hearing. Counsel and the Petitioner discussed whether or not to have Hale
testify at the motion hearing and decided to rely on the affidavit. If Hale testified, Counsel
explained, he believed the trial court would not find her credible based on her multiple prior
statements, criminal history, and current status. He said that submitting her statement by
affidavit was “the best way” to address the credibility issue. Counsel testified that,
furthermore, if the trial court denied the motion, he believed that the affidavit would be better
support on appeal than live testimony.

        Counsel testified that the State filed a motion in limine requesting that the trial court
limit any reference to Hale and her conviction during the trial. Counsel said that Investigator
Casey Cox was the State’s designated representative during the trial and sat at the State’s
table. He agreed that, as the State’s designated representative, Investigator Cox was not
subject to the rule excluding all witnesses from sitting in court during testimony.



                                               -8-
       On cross-examination, Counsel testified that the Petitioner was out of jail on bond
pending trial “for most of the time.” He explained that the Petitioner was arrested “a time
or two” and was incarcerated before making a “new bond.” Counsel agreed that he met with
the Petitioner twice at his office in preparation for trial: (1) when the Petitioner retained
Counsel; and (2) four or five days before trial.

        Based on this evidence, the post-conviction court denied the Petitioner post-conviction
relief. It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

        On appeal, the Petitioner contends that he received the ineffective assistance of
counsel. Specifically, he asserts that Counsel failed to: (1) call Hale as an exculpatory
witness at trial and at the motion for new trial hearing; and (2) failed to object to a violation
of the sequestration rule “as regards to Investigator Casey Cox and Sergeant Lanzilotta.” The
State responds that the Petitioner has failed to prove his allegations by clear and convincing
evidence and that, therefore, the post-conviction court should be affirmed. We agree with
the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2012). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] must show that counsel’s performance was deficient.

                                               -9-
       This requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d
417, 419 (Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, “a petitioner must show that counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the “distorting
effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.
at 689-90. In doing so, the reviewing court must be highly deferential and “should indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a
criminal case is not entitled to perfect representation, only constitutionally adequate
representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘we address not what is
prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483
U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)).
Counsel should not be deemed to have been ineffective merely because a different procedure
or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-
80 (Tenn. Crim. App. 1980). “The fact that a particular strategy or tactic failed or hurt the
defense, does not, standing alone, establish unreasonable representation. However, deference
to matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,

                                              -10-
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State,
90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).

                                       A. Witness Hale

        The Petitioner claims that Counsel was ineffective for failing to call Hale to testify
in his defense at trial. The post-conviction court, in denying the petition, credited Counsel’s
testimony that Hale refused to testify. Counsel said that Hale told his investigator that she
would not testify and that the drugs and drug-related items belonged to the Petitioner. The
post-conviction court noted Hale’s affidavit for police, in which it she stated she would not
testify at the Petitioner’s trial. The post-conviction court did not credit Hale’s testimony at
the post-conviction hearing that she merely failed to mark through the sentence indicating
she was not willing to testify when she had made other corrections throughout the affidavit.

        The evidence does not preponderate against the post-conviction court’s findings.
Once Hale had settled the charges stemming from this same incident, Counsel sent an
investigator to talk with Hale. Hale told the investigator that she would not testify on the
Petitioner’s behalf at trial. Further, the police affidavit indicated that Hale would not testify
at the Petitioner’s trial. Counsel also stated concern about Hale’s credibility as a witness at
trial. These concerns are well-founded in light of Hale’s criminal history, incarceration at
the time of trial, and prior statements to police that were inconsistent with what the Petitioner
asserted she would say at trial. Considering all of these factors, Counsel made an informed,
strategic decision not to call Hale to testify at the Petitioner’s trial. We can not conclude that
Counsel’s performance was deficient or that Counsel’s failure to call Hale prejudiced the
Petitioner at trial. The Petitioner is not entitled to relief.

        We now consider the Petitioner’s argument that Counsel was deficient for failing to
call Hale to testify at the motion for new trial hearing. In its written order, the trial court
stated that it did not find Hale credible. Further, in its oral ruling, it recalled stating
reservations regarding Hale’s credibility as it pertained to the affidavit at the motion for new
trial. The trial court concluded that Counsel was not deficient for submitting the affidavit
rather than live testimony.

       The evidence in the record does not preponderate against the trial court’s factual
findings in this respect. As earlier noted, Hale was charged for these crimes as well and had
pled guilty to her charges before the Petitioner’s trial. She had made inculpatory statements
regarding the Petitioner in two statements provided to police. Counsel prepared an affidavit

                                              -11-
of Hale’s statement and served Hale with a subpoena for the motion for new trial hearing.
After discussing the options with the Petitioner, Counsel and the Petitioner decided on a
course of action that provided less opportunity for the State to attack Hale’s credibility.
Based on the record, Counsel made an informed decision to present Hale’s testimony by
affidavit rather than live testimony. We can not conclude that Counsel was deficient in this
respect or that the Petitioner was prejudiced. The Petitioner is not entitled to relief.

                                    B. Investigator Cox

       The Petitioner argues that Counsel failed to notify the trial court of a violation of the
sequestration rule, Tennessee Rule of Evidence 615. The post-conviction court made the
following findings as to this issue:

              Mr. Cox was designated as the prosecuting witness. The State has a
       witness to be here in the trial of a case, and he did hear, I suppose, the
       testimony of the other witnesses. But the mere fact that he reiterated what Mr.
       Lanzilotta said in his testimony does not mean that there was some
       collaboration in violation of the rule.

       In the Petitioner’s brief, he includes the following trial testimony:

       Question:      Were you able to see in the mobile home at various times during
                      the evening before the search warrant was executed?

       Witness:       Yes, sir. I seen, as Sergeant Lanziolotta explained in his view
                      that he was going in the trailer, that was my limit to my view of
                      the trailer, was just inside the door. If the door come open, I
                      could see something. If the door was shut, I didn’t see
                      anything.

       The Petitioner, however, failed to include a transcript of the trial in the record on
appeal. It is the Petitioner’s duty to prepare a record that conveys “a fair, accurate and
complete account of what transpired with respect to the issues which form the basis of the
appeal.” Tenn. R. App. P. 24(b). Nonetheless, this Court may take judicial notice of the
direct appeal record. See State ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn.
1964). Despite the Petitioner’s error, we choose to take judicial notice of the direct appeal
record for purposes of the current appeal.

       Tennessee Rule of Evidence 615 provides that “[a]t the request of a party the court
shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory


                                              -12-
hearing.” The rule, however, does not authorize the exclusion of “a person whose presence
is shown by a party to be essential to the presentation of the party’s cause.” Tenn. R. Evid.
615.

       It appears that the Petitioner’s argument in his brief is that Counsel should have
objected to Investigator Cox’s reference to Sergeant Lanzilotta’s testimony based upon the
sequestration rule. Investigator Cox, however, was properly in court during the testimony
as the State’s designated witness or representative. At the post-conviction hearing, the
Petitioner testified as to this issue, apparently alleging that Investigator Cox’s reference to
Sergeant Lanzilotta’s testimony indicated that Investigator Cox and Sergeant Lanzilotta
spoke about the testimony outside of court. The mere fact that Investigator Cox referenced
Sergeant Lanzilotta’s testimony, which he heard in court as the designated witness, does not
prove by clear and convincing evidence that Investigator Cox and Sergeant Lanzilotta
engaged in out-of-court discussions about the case during the trial.

        Finally, we note, as the State did in its brief, that although not raised by the Petitioner,
Investigator Cox, as the State’s designated witness at trial, should have testified first. Our
review of the trial transcript indicates that Investigator Cox was the next witness to testify
after Sergeant Lanzilotta. When a prosecutor designates an investigating officer, that officer
should testify first at trial to comply with the purpose of the rule, which is to prevent one
witness from hearing the testimony of another and adjusting his testimony accordingly.
Mothershed v. State, 578 S.W.2d 96, 100-01 (Tenn. Crim. App. 1978). When this occurs,
a defendant must show that a witness improperly changed his or her testimony after hearing
other witnesses testify. State v. Sexton, 724 S.W.2d 371, 374 (Tenn. Crim. App. 1986).

        The Petitioner has failed to show that Investigator Cox improperly changed his
testimony after hearing Sergeant Lanzilotta’s testimony. Investigator Cox testified regarding
his view of the inside of the trailer from his surveillance position as consistent with Sergeant
Lanzilotta’s testimony. Cox testified that he could not see inside the trailer until Sergeant
Lanzilotta opened the trailer door. Sergeant Lanzilotta testified as to his view before entering
the trailer as follows:

       Q:      Now, were you situated where you could see inside the mobile home
               before you entered the mobile home?

       A:      That’s incorrect, I was not.

       Q:      So when it came time to enter, that’s the first time you actually had a
               good view of the mobile home; correct?



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       A:      Yes, sir, that’s correct.

       Q:      Could you see this - - bedroom, or this area that you were instructed to
               go into before you entered the mobile home?

       A:      No, sir.

       Q:      Could you see other areas of the mobile home, like the living room, or
               the wide area there where the TV is identified?

       A:      No, sir.

The Petitioner offers no explanation as to how both officers testifying that they could not see
inside the trailer until the time of the execution of the search warrant and their actual entrance
into the trailer prejudiced him. Based on the officers’ inability to see inside the trailer prior
to entry, neither officer offered any testimony, incriminating or otherwise, as to the activity
in the trailer in the few minutes leading up to police entry. Further, the Petitioner does not
point out, nor are we able to find any indication that Investigator Cox improperly altered his
testimony based on the testimony of Sergeant Lanzilotta. Accordingly, we conclude that the
Petitioner has not shown that he was prejudiced by Counsel’s failure to object to Investigator
Cox not testifying first at trial.

                                           II. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.


                                                       _________________________________

                                                       ROBERT W. WEDEMEYER, JUDGE




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