        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 19, 2013

               CHRISTA GAIL PIKE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2002-D-2294    J. Randall Wyatt, Jr., Judge


              No. M2012-01640-CCA-R3-PC - Filed September 30, 2013


The Petitioner, Christa Gail Pike, appeals the Davidson County Criminal Court’s denial of
post-conviction relief from her conviction for attempted first degree premeditated murder of
a fellow inmate. On appeal, the Petitioner argues that she received ineffective assistance of
counsel. Upon review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., and J EFFREY S. B IVINS, JJ., joined.

Graham Prichard (at trial) and Ryan C. Caldwell (on appeal), Nashville, Tennessee, for the
Defendant-Appellant, Christa Gail Pike.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor (Torry) S. Johnson, III, District Attorney General; and Kathy Morante,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

        The Petitioner was indicted by a Davidson County Grand Jury for one count of
attempted first degree premeditated murder. The Petitioner was convicted as charged, and
the trial court sentenced her as a Range II, multiple offender to a sentence of twenty-five
years, which she was ordered to serve concurrently with her prior sentence of death for her
first degree premeditated murder conviction. This court affirmed her conviction. State v.
Christa G. Pike, No. M2005-00738-CCA-R3-CD, 2006 WL 547997 (Tenn. Crim. App. Mar.
6, 2006), perm. app. denied (Tenn. Aug. 21, 2006).

       Trial. This court summarized the evidence presented at trial in its opinion:
       The origins of this case began during the early morning hours of August
24, 2001, at the maximum security unit of the Tennessee Prison for Women.
Due to a fire, three inmates, Patricia Jones, Natasha Cornett, and the
defendant, were evacuated from their cells to a recreation cell or cage. A
dispute arose between Cornett and the victim, Jones. The defendant intervened
by choking the victim into unconsciousness with a heavy shoe or boot lace.
The State contended that the defendant made a premeditated attempt to murder
the victim. The defendant argued that she was acting to protect a third party,
Cornett, from the victim.

       Patricia Jones, the victim, testified that due to a fire in her wing of
Tennessee Prison for Women she was moved from her cell and placed in an
exercise cage. Two other inmates, the defendant and Natasha Cornett, were
placed in the same cage. The victim and Cornett began arguing, and Cornett
swung at the victim but missed. The victim said she was about to fight Cornett
when the defendant came behind her and choked her until she was
unconscious.

        On cross-examination, the victim stated that during that time she
weighed 217 pounds. She estimated she was twice the size of the defendant
and three times the size of Cornett. She admitted that she had pled guilty to
first degree premeditated murder. The victim estimated that she and the
defendant had been incarcerated in the Knox County Jail for one and a half to
two years before both were transferred to Tennessee Prison for Women.

        The victim related that in the summer of 2001, there had been three
fires on the segregation unit that required evacuation of the inmates from their
cells. The third fire was on August 24, 2001. The victim expressed her dislike
for Cornett because “[s]he got in my face.” The victim had on different
occasions in the past thrown a bloody Kotex and a shoe in Cornett’s face.

       On the night of the first fire evacuation, the victim confronted Cornett,
but another inmate intervened on Cornett’s behalf. The victim said she
whipped the unnamed inmate. The defendant was present and witnessed the
events but was restrained by handcuffs.

        The victim denied hating Cornett but did admit telling a physician that,
“I just want to kill her, maybe, come up behind her and split her throat, or
catch her when the police ain’t around and just beat her until I get tired.” On



                                      -2-
redirect, the victim expressed her hate for Cornett but denied feeling hatred for
the defendant.

        Shaunna Fitzgerald, a correctional officer, was working at the
Tennessee Prison for Women on the night of August 24, 2001. She testified
that she assisted in releasing inmates from their cells due to the fire. Officer
Fitzgerald witnessed an argument between Cornett and the victim in the
recreational cage. She stated that Cornett swung at the victim and missed.
The defendant then went behind the victim and began choking her. The victim
fell to the ground on her stomach. Officer Fitzgerald attempted to pull the
defendant off the victim, and the defendant stated, “The way you’re pulling my
hands, you’re just helping me choke the bitch.” Another guard, Officer
Cheatham, responded and moved the defendant away from the victim. Officer
Fitzgerald picked up the object used by the defendant to choke the victim. She
described it as similar to a drawstring from sweat pants. The defendant had
suffered what Officer Fitzgerald described as rope burns on the top of both
hands. She stated that the victim was given aid by firemen and was not
hospitalized.

       Sergeant Dennis Henry, a correctional officer at Tennessee Prison for
Women, spoke with the defendant on August 24, 2001, shortly after the
incident. He described the defendant’s attitude as proud and unremorseful.
The defendant stated that if she had been given thirty more seconds “she would
have killed the bitch.” The defendant made no mention to Sergeant Henry of
acting to defend Cornett.

       Christie Donoho had served as an internal affairs investigator for the
Department of Correction and was the lead investigator in this case. Ms.
Donoho interviewed the defendant on October 15, 2001. The recorded
interview was played for the jury at trial wherein the defendant described the
events of August 24th. She stated that when the inmates were moved from
their cells during the fire, the new admissions were placed in one cage, the
punitive inmates in another, and the three maximum security inmates in the
third cage. The defendant stated that she took a boot lace with her. She said
the victim had started fights with other inmates during two prior evacuations.
On August 24th, the victim antagonized Cornett, and Cornett swung at the
victim and missed. The victim “rared back to hit [Cornett],” and the defendant
placed the lace around the victim’s neck. The defendant stated that the victim
eventually fell to the ground. The defendant then flipped the victim onto her
stomach, sat on her, and continued choking her. This continued until officers

                                       -3-
intervened. When asked her intention toward the victim, the defendant said,
“I don’t wanna say that I intended to kill her but I would say that I didn’t care
if she died. I wouldn’t lose any sleep over it if she did.”

        Ms. Donoho explained that all inmate phone calls, with the exception
of attorney calls, are monitored and recorded. A call from the defendant to her
mother was played for the jury. In regard to these charges, the defendant’s
mother asked the defendant who started the fight. The defendant responded
that “nobody really started it. Patricia was running her damn mouth to
Natasha. And she is constantly doin it, you know I hate that bitch.” The
defendant related that when the victim started to hit Cornett, “. . . I said, ‘Oh,
hell no!’ And I wrapped that shoe string around of her and tried to choke the
damn life out of her. She was passed out on the ground, Mamma, twitching,
foaming at the mouth, her eyeballs were bugged out so far, her eyelids were
flipped up.”

        “I’ll betcha if she gets near me, I’m gonna do it again! I’m gonna
succeed this damn time! See, now I know the difference between premeditated
murder and what happened with Colleen. Cause see, I premeditated the hell
out of this. Sure did. If I’d of had thirty more seconds, I’d, we’d have a little
chalk line out there in our rec pen, and that bitch would be gone somewhere.”

       In another recorded phone conversation with an individual named Lisa,
the defendant gave a similar account of the choking incident:

Defendant:    I swear to God it was a set-up! And they said, “All max get in
              the same pen!” They should have known!

Lisa:         Yeah!

Defendant:    Dumb asses!

Lisa:         They are!

Defendant:    They know I hate her!

Lisa:         Yeah.

Defendant:    They know I . . . I . . . . I’ve gave them all fair warning that I
              would kill if I ever got near her.

                                       -4-
Lisa:        Yeah.

Defendant:   So, it was a big choker, but I tried!

Lisa:        (laughs) Really?

Defendant:   I mean, seriously! And you know . . . I know the difference now
             between like, pre-meditated [sic] murder and what happened
             with Colleen.

Lisa:        Yeah.

Defendant:   Because I definitely pre-meditated [sic] this . . .

Lisa:        Huh-huh . . .

Defendant:   . . . and I never . . . my blood pressure never even went up . . .

Lisa:        Um . . .

Defendant:   . . . I stayed calm the whole damn time! And I mean, it . . . and
             it was some tragic shit, too!
....

Defendant:   Yeah. Actually, they don’t want me nowhere near her . . . I don’t
             blame ‘em!

Lisa:        (laughs) I guess not.

Defendant:   Cause that’s the way . . . I think that’s the way I was . . . just as
             calming as I am right now. And when . . . when the firemen
             came out there, and I don’t know what they did CPR on her or
             what . . . cause I mean, she was like seriously unconscious.

Lisa:        Yeah.

Defendant:   If I’d of had 30 more seconds, there’d be like a little chalk line
             out in our rec pen.

Lisa:        Oh . . .

                                      -5-
Defendant:    And I was just so calm. And after they like brought her back, or
              whatever, and she was sittin’ up there chokin’ half to death on
              the bench . . . and, you know, trying to figure out where the hell
              she was . . . I . . . I asked her, you know, “Well, how does it feel
              to almost lose your worthless little life?”

       On cross-examination, Ms. Donoho stated that the phone conversation
with Lisa occurred on August 29th, and with the defendant’s mother on
August 30, 2001. Ms. Donoho stated that the defendant told her that the
victim had threatened her before the incident on August 24th.

        The defendant testified that she was convicted for first degree murder.
She stated that she had known the victim since March 1995, having first met
her at the Knox County Jail. The defendant stated the victim had often
attacked other people during her incarceration. She related an incident of the
victim throwing another inmate into the bars, causing injury. She stated that
the victim had attacked two officers with a hard plastic tray in two separate
incidents. The defendant witnessed the victim attack two inmates who were
on crutches. The defendant said the victim had threatened her life on
numerous occasions. On yet another occasion, the victim attacked an inmate
relations coordinator. She said the victim habitually threatened Natasha
Cornett’s life. The victim tried to attack both the defendant and Cornett during
the first fire in the summer of 2001.

      On the night of August 24th, the defendant stated that she took the lace
when she was evacuated from her cell in anticipation of the victim causing
problems. She said she wanted to be able to incapacitate the larger victim.
The defendant stated she used the lace when the victim drew her fist to hit
Cornett. Her stated intention was to protect Cornett.

        By way of explaining her phone conversations, the defendant said she
was trying to convince her mother that she could protect herself. The
defendant explained her use of “premeditation” during the phone calls as her
intent to protect Cornett and herself from the victim. She said that her only
intention was to incapacitate the victim until others could intervene.

       On cross-examination, the defendant admitted that she continued to
choke the victim after the victim was unconscious and despite Officer
Fitzgerald’s efforts to stop her. The defendant said she feared Officer



                                       -6-
       Fitzgerald could not restrain the victim and that she ceased choking the victim
       when Officer Cheatham entered the cage.

               The defense called Natasha Cornett and two other inmates. Natasha
       Cornett stated that the victim had threatened her on several occasions. She
       described how the defendant stopped the victim from attacking her on August
       24, 2001. She said the victim raised her hand to hit her, and the defendant
       choked the victim, pulling her back and down. On cross-examination, Cornett
       admitted that the defendant continued to choke the victim after the victim had
       become unconscious, her eyelids were “flipped up” and she was making
       gurgling noises. Joana Rosa, an inmate, testified that she had been attacked by
       the victim when she was unable to defend herself. Lethea Sweat, an inmate,
       stated that she intervened when the victim attempted to attack the defendant
       and Cornett during the first fire evacuation of August 2001.

              Randy Mangrum was the defendant’s final witness. He had been a
       corrections officer since 1982. Officer Mangrum knew both the victim and the
       defendant. He considered the victim dangerous and always handcuffed her
       when she was with other inmates.

Christa G. Pike, 2006 WL 547997, at *1-5.

        On August 7, 2007, the Petitioner filed a timely pro se petition for post-conviction
relief. The Petitioner was subsequently appointed counsel, who filed two amended petitions
on the Petitioner’s behalf. The post-conviction hearing occurred on April 2, 2012.

        Post-Conviction Hearing. Patricia Jones, an inmate at the Tennessee Prison for
Women, testified that she had been incarcerated since 1996 following her conviction for
premeditated first degree murder in Knox County for stabbing an elderly woman 119 times.
She admitted that she had assaulted correctional officers approximately ten times. She said
that she often assaulted officers when they “talk[ed] crazy” to her, and during those incidents,
she would hit the officers until other officers restrained her. She also said that she had
assaulted several inmates. Jones admitted that she “always hit first[,]” meaning that she
never acted in self-defense. Jones also admitted that she had threatened to kill other
individuals at the prison, including the Petitioner and Natasha Cornett, prior to the 2001
incident. She stated that while incarcerated at the Knox County Jail, the Petitioner prevented
her from killing an inmate whose head she was holding down in a toilet. She said that the
Petitioner also pulled her off of a second inmate whose head she had rammed against the cell
bars. In addition, Jones said that the Petitioner prevented her from killing a third inmate that
she was choking with a telephone cord. Jones admitted that the Petitioner had also stopped

                                              -7-
her from killing additional inmates, other than the ones she had just discussed. She
acknowledged that she “blank[s] out” when she “get[s] mad[.]”

       Jones said that prior to the incident in this case, she was angry with the Petitioner
because the Petitioner had sided with a correctional officer that she despised. Jones said that
she would call the Petitioner “a psychopath” and would tell her that “they was going to fry
her a[--].” She said she knew that the Petitioner felt like her medication was making her
crazy and that she was having trouble sleeping, and Jones admitted that she would bang on
the door and shout to wake her up every time she fell asleep. Jones said she was not afraid
of the Petitioner.

       Jones stated that she informed Cornett that she was going to “beat her and make her
pay for what she did to them kids” and that she was going to “kill her to save the State some
money.” She said the Petitioner knew of the animosity between her and Cornett. Jones said
that she was finally able to get to Cornett to hurt her approximately one month before the
incident in this case.

        On the night that she was choked by the Petitioner, Jones said that she had been placed
in a recreational cage with the Petitioner and Cornett because a fire had been set. She said
Cornett was “talking trash” to her and when she approached her, Cornett took a swing at her
and missed. At that point, Jones decided she was going to “beat [Cornett] in[to] a coma.”
During the fight, the Petitioner pulled her off of Cornett with a boot lace and saved Cornett
from serious injury.

        Jones acknowledged that the prosecutor had told her not to mention anything about
the Petitioner’s death row status at trial. At the time, she thought the prosecutor was telling
her not to mention the Petitioner’s crime or the details of the crime. She said she made the
comment that the Petitioner was on death row because the prosecutor had asked her about
the living arrangements at the prison. She claimed that she did not know she was saying
something wrong.

        Jones said her trial testimony that the Petitioner used a boot lace to try to kill her was
truthful. She claimed the offense was premeditated because one of the Petitioner’s friends
set the fire and because the Petitioner and Cornett had planned for Cornett to distract her so
that the Petitioner could kill her.

       Natasha Cornett, another inmate at the Tennessee Prison for Women, testified that
Jones “constantly” harassed the Petitioner, made noise so that she could never sleep, and
screamed so that the Petitioner could never have a conversation with anyone. Cornett said
that because of Jones’s bullying and the changes to the Petitioner’s medication, the Petitioner

                                               -8-
was extremely unstable and often cried. In the weeks prior to the incident, Jones had become
extremely hostile to the Petitioner and Cornett. She claimed that at the time of the incident,
she tried to hit Jones after Jones was “[c]ontinuously” bumping into her in the cage. When
she took the swing at Jones and missed, Cornett said she turned her back on Jones because
she was embarrassed that she had not made contact with her. Cornett said that she could see
Jones “rare back like she was getting ready to hit me” out of the corner of her eye.

       On cross-examination, Cornett said she did not believe that the Petitioner would have
assaulted Jones if Jones had not tried to hit her when her back was turned. She also stated
that she believed the Petitioner “snapped” when she started choking Jones.

       Trial counsel testified that he had been a criminal defense attorney for thirty-four
years and that he had represented defendants in over a hundred jury trials. He stated that he
had gotten involved in the Petitioner’s case when co-counsel asked him to assist him. When
asked if he or co-counsel made the decisions regarding trial strategy, trial counsel stated, “I
would say that it was joint [decision], although I was senior, we were working the case
together.”

         Trial counsel stated that at a hearing the Friday before trial, he had requested that no
witnesses mention the Petitioner’s death sentence, the death penalty, or death row. He said
that at the end of the hearing, the trial court ruled that all mention of the death penalty would
be precluded unless the door was opened. Trial counsel did not want the jury to hear that the
Petitioner had been previously convicted of murder or that she was on death row because it
would have been “overwhelmingly prejudicial” to the case. Trial counsel stated that if the
jurors knew that the Petitioner was on death row, they would not care about her case.
Although the State privately instructed Jones not to mention that the Petitioner had received
the death penalty, Jones testified at trial that the Petitioner was housed on death row. Trial
counsel acknowledged that the State had tried to use the fact that the Petitioner was on death
row as a motive for her to commit the crime because Jones routinely reminded the Petitioner
that she had been sentenced to death.

        When the prosecutors returned to the courtroom after talking to Jones, the court asked
trial counsel if he wanted it to formally instruct Jones regarding this death row issue, and trial
counsel responded that an instruction was unnecessary. Trial counsel said that after Jones
mentioned the Petitioner was on death row, he made the decision not to object. He
explained, “[T]he last thing I wanted to do at that point was to drive that point home to the
jury[.]” He added, “[W]hat I didn’t do and I cannot think of a strategic reason to have not
done it was move for a mistrial.” Trial counsel admitted that he could have moved for a
mistrial in a way that did not alert the jury and that he had asked for mistrials in other cases
during a break and out of the presence of the jury. He also admitted that by failing to object

                                               -9-
or to ask for a mistrial, he waived that issue on appeal except under a plain error analysis.
Trial counsel acknowledged that he did not ask the trial court for a curative instruction
following Jones’s statement about the Petitioner’s death row status.

        Trial counsel stated that the State filed a motion in limine the morning of the
Petitioner’s trial to preclude evidence of Jones’s violent history. During that hearing, trial
counsel argued that Jones’s institutional record of her violent acts while incarcerated should
be admissible. The court stated that it was not going to allow evidence of Jones’s bad acts
until after the Petitioner testified about her knowledge of these acts. Trial counsel stated that
during cross-examination, Jones said, “I only assault people when they assault me[,]” and “I
only [assault] the inmates that put their hands on me.” Following this testimony, a hearing
out of the presence of the jury occurred in which trial counsel argued that this testimony had
opened the door to evidence of Jones’s prior acts of violence. Ultimately, the trial court ruled
that it would not allow trial counsel to get into these prior acts of violence during Jones’s
cross-examination but would allow trial counsel to recall Jones as a defense witness to
question her about her violent history. Trial counsel acknowledged that he never recalled
Jones during his case-in-chief and never made an offer of proof regarding what Jones’s
testimony would have been regarding these violent acts. Trial counsel stated that he had
made a strategic decision not to call Jones as a defense witness:

              By the time we had completed all of the proof, all of the proof was in,
       minus [Jones] as a potential witness, I felt that we had established to the jury
       that she was a violent person, that she attacked other people. [The Petitioner],
       I thought, made a very good witness, very, I thought that she was a very
       believable witness and she talked about all of the acts of violence she had seen
       committed by Jones.

              My recollection is that we were able to introduce some of that record
       through at least some of the other witnesses, including correctional officers.
       We called former Officer Mangram, who in my opinion made it as clear as can
       be that Patricia Jones was just a bad lady. I didn’t know what else she might
       say that could hurt us, but I felt like I had achieved my goal . . . to make her
       out to be a very dangerous individual and the kind of person that [the
       Petitioner] was fearful of as it related to her, Jones, wanting to hurt other
       people. I felt pretty good about that.

Trial counsel stated that although the evidence presented at trial regarding Jones’s violent
history was not as specific as Jones’s testimony regarding this history at the post-conviction
hearing, the jury did hear about Jones “going after other people in Knox County.” Trial
counsel stated that evidence of Jones’s violent acts was a “two edged sword” because while

                                              -10-
the defense had an interest in showing that Jones was a violent person based on these violent
acts, the State’s theory was that the Petitioner tried to kill Jones because she hated her and
had conspired with other inmates to kill her. Trial counsel said that if he had been aware that
Jones would testify as she had during the post-conviction hearing, namely that the Petitioner
had prevented her from killing other inmates in the past, then he “would have brought that
in.”

        On cross-examination, trial counsel stated that he had been involved in “[a]t least a
half of a dozen” death penalty cases. He said that Jones had not “made a very good witness
in front of the jury[,] and [he] didn’t want to give her an opportunity to possib[ly] come back
and be a better witness.”

       Co-counsel testified that he had been practicing criminal law since 2000 and was
appointed by the court to represent the Petitioner in 2003. At the time of his appointment,
he said he had never tried any jury trials. He acknowledged that he was deferential to trial
counsel in making decisions regarding strategy because trial counsel had significantly more
legal experience.

        Co-counsel stated that he and trial counsel did not object or move for a mistrial out
of the presence of the jury when Jones mentioned that the Petitioner was on death row. He
said that he did not “remember how clear her mention of the death sentence was in the
middle of her testimony” and that he did not remember if he and trial counsel discussed the
reasons not to move for a mistrial. When asked if he could remember a strategic reason why
the defense did not move for a mistrial, co-counsel stated:

              The only thing I can think of is that [trial counsel] really did quite a
       [good] job cross-examining [Jones,] the victim in this case[,] and . . . in my
       opinion, and I believe in [trial counsel’s opinion] as well at the time, because
       I remember talking about this, [Jones] responded to his cross-examination as
       poorly as we had hoped that she would.”

                Jones came across as very angry, violent[,] and I do remember that
       when he was crossing her[,] I think he asked permission to get very close to
       her and talk to her with his face just, just right on the other side of the bench
       that I, that I thought he had her worked up enough that she might come out of
       the chair at him. I mean, she was using profanity, talking about when she had
       a messed up day in prison she hurts people . . . .




                                             -11-
Co-counsel agreed with trial counsel that recalling Jones as a defense witness was not worth
the risk because “[trial counsel] couldn’t have gotten her to testify any worse than [he]
already had . . . .”

       Co-counsel said that he and trial counsel had never heard Jones say that she would
have killed other inmates if the Petitioner had not intervened. He reiterated that he and trial
counsel did not make a proffer or attempt to recall Jones at trial.

        On cross-examination, co-counsel stated that he agreed with trial counsel that it was
a strategic decision not to object when Jones mentioned that the Petitioner was on death row
because they did not want to further emphasize this fact to the jury. He also said they were
able to present substantial evidence that Jones was a violent woman, and this evidence
included testimony from a correctional officer and several inmates. Co-counsel agreed with
trial counsel that there would have been some risk to the Petitioner’s case if they had recalled
Jones to the stand because she was “unpredictable.”

       At the conclusion of the proof, the post-conviction court took the matter under
advisement. On July 5, 2012, the court entered an order denying post-conviction relief. The
Petitioner filed a timely notice of appeal.

                                          ANALYSIS

        The Petitioner argues that trial counsel provided ineffective assistance of counsel by
failing to object, request a mistrial, or request a curative instruction after Jones testified that
the Petitioner was on death row at the time she choked her. She also argues that trial counsel
provided ineffective assistance by failing to make an offer of proof to question Jones about
her prior violent acts and by failing to recall Jones as a defense witness in order to establish
her history of violence, which would have damaged Jones’s credibility and would have
supported the defense’s theory that Jones was the aggressor and that the Petitioner acted in
defense of Cornett when she choked Jones. In response, the State argues that the record
“overwhelmingly supports” trial counsel’s and co-counsel’s strategic decisions not to object,
pursue a mistrial, or request a curative instruction and not to recall Jones as a defense witness
or make a proffer of her testimony. We agree that the Petitioner is not entitled to relief.

      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. The Tennessee 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,

                                               -12-
       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 quotation 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. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered 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)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       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 quotations and citations omitted).

        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 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, 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) (citing Strickland, 466 U.S. at 697).

       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. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the

                                             -13-
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).

       We note that “[i]n evaluating an attorney’s performance, a 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.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, this
“‘deference to matters of strategy and tactical choices applies only if the choices are informed
ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369).

       First, the Petitioner argues that trial counsel provided ineffective assistance by failing
to object, request a mistrial, or request a curative instruction after Jones testified that the
Petitioner was on death row. The record shows that although post-conviction counsel
requested that a copy of the trial record be included in the record on appeal, it was not
included. Because our review of the trial was necessary to determine whether the Petitioner
was entitled to post-conviction relief, we have taken judicial notice of the record from the
Petitioner’s direct appeal. See State ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn.
1964) (concluding that this court may take judicial notice of the direct appeal record).

       At trial, the court ruled that all references to the Petitioner’s status as a death row
inmate were precluded unless the door was opened because “the prejudicial effect, clearly,
outweigh[ed] whatever probative value it would have.” Prior to Jones’s testimony, the two
prosecutors assigned to the case had talked to Jones about not mentioning the Petitioner’s
death row status. On direct examination, the State asked Jones, “Now, prior to that date, you
knew Ms. Cornett? They were in [the] seg[regated unit] with you, correct?” Jones
responded, “Me and Natasha Cornett has [sic] been on A. Yeah, [a]nd of course, Christa
[Pike] was back there locked down, being that she was death row.” At that point, the trial
court stated, “Let’s just get on with what happened . . . .” The State resumed questioning
Jones about what happened after she was placed in the recreational cage with Cornett and the
Petitioner because of the fire, and Jones did not mention that the Petitioner was on death row
again during her testimony.

       The post-conviction court specifically held that the Petitioner was not entitled to relief
for counsel’s failure to object or request a curative instruction following Jones’s testimony:

                                              -14-
               The Petitioner alleges in her Amended Petition for Post-Conviction
       Relief that trial counsel [and co-counsel] were ineffective at trial by failing to
       object to Ms. Jones testifying to the jury that the Petitioner was on death row
       and failing to request a curative instruction. The Court finds that Ms. Jones
       testified as to the Petitioner’s status on death row during her direct testimony
       when discussing the living arrangements in TPFW [Tennessee Prison for
       Women] . . . . The Court finds that there was neither a curative instruction
       requested nor a contemporaneous objection to Ms. Jones’[s] reference about
       death row. The Court finds that the absence of a request for a curative
       instruction or a contemporaneous objection to an objectionable fact elicited in
       a witness’[s] testimony is commonly a strategic decision employed and is
       designed to not draw more attention to the objectionable fact. The Court finds
       that this strategy was employed in the Petitioner’s case. The Court accredits
       [trial counsel’s] testimony that the lack of an objection or request for a curative
       instruction was a strategic decision in this case, which was based upon the fact
       that he did not want to highlight the fact that the Petitioner was on death row.
       The Court finds that the Petitioner failed to prove, by clear and convincing
       evidence, that trial counsel’s failure to request a curative instruction or make
       an objection to the reference resulted in ineffective assistance of counsel.

       We conclude that the record fully supports the post-conviction court’s holding
regarding trial counsel’s failure to object or request a curative instruction. Trial counsel and
co-counsel testified at the post-conviction hearing that they did not object or ask for a
curative instruction because they did not want to highlight the fact that the Petitioner was on
death row at the time that the Petitioner choked Jones. We agree with the post-conviction
court that trial counsel’s failure to object or ask for a curative instruction was a strategic
decision and, therefore, did not constitute ineffective assistance of counsel.

        Next, we must determine whether trial counsel provided ineffective assistance by
failing to request a mistrial following Jones’s comment. Although the court made findings
regarding trial counsel’s failure to object and to request a curative instruction, it did not make
specific findings regarding trial counsel’s failure to request a mistrial. See T.C.A. § 40-30-
111(b) (requiring the court to enter an order containing its findings of fact and conclusions
of law for each ground raised by the petitioner); Tenn. R. S. Ct. 28, § 9(A) (stating that the
order must contain specific findings of fact and conclusions of law for each issue raised by
the petitioner). A review of the post-conviction hearing shows that the court heard
substantial proof on the mistrial issue. Moreover, the order denying post-conviction relief
repeatedly states that the Petitioner failed to prove by clear and convincing evidence that trial
counsel was ineffective, and the last paragraph of the order states that the Petitioner failed
to carry her burden of proof for post-conviction relief. See Claude F. Garrett v. State, No.

                                              -15-
M2011-00333-CCA-R3-PC, 2012 WL 3834898, at *24 (Tenn. Crim. App. Sept. 5, 2012),
perm. app. denied (Tenn. Feb. 25, 2013) (concluding that although the court’s order denying
post-conviction relief did not contain findings of fact or conclusions of law on the issue of
trial counsel’s ineffectiveness for failing to request a mistrial, the record was sufficient for
appellate review because it contained the trial transcript providing the factual basis of the
Petitioner’s claims and the post-conviction court’s determination that trial counsel’s
performance was neither deficient nor prejudicial); State v. Swanson, 680 S.W.2d 487, 489
(Tenn. Crim. App. 1984) (holding that although written findings of fact and conclusions of
law on each issue facilitate appellate review, reversal is not required when there is an
adequate record for review). Here, the trial transcript, the post-conviction transcript, the
court’s findings of fact and conclusions of law regarding the related issues of trial counsel’s
failure to object or request a curative instruction, and the court’s final holding that the
Petitioner failed to prove her allegations by clear and convincing evidence provide an
adequate record for our review.

        In determining whether trial counsel provided ineffective assistance in failing to
request a mistrial, we note that the grant or denial of a motion for a mistrial rests within the
sound discretion of the trial court. State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004).
A trial court should declare a mistrial “only upon a showing of manifest necessity.” Id.
(citing State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003)). “The purpose for declaring
a mistrial is to correct damage done to the judicial process when some event has occurred
which precludes an impartial verdict.” State v. Reid, 164 S.W.3d 286, 341-42 (Tenn. 2005)
(citing State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996)). The party seeking
a mistrial has “the burden of establishing the necessity of a mistrial.” Id. at 342 (citing
Williams, 929 S.W.2d at 388).

       Significantly, this court held on direct appeal that Jones’s comment regarding the
Petitioner’s death row status was not “sufficiently prejudicial” to warrant a new trial given
the facts of this particular case:

              [T]he defendant contends that the trial court erred in failing to grant a
       new trial due to a reference in testimony that the defendant was on death row.
       The defendant maintains that this was so prejudicial as to justify a new trial.
       The State responds that the issue was waived under Tennessee Rule of
       Appellate Procedure 36(a) by the defendant’s failure to make a
       contemporaneous objection.

               The defendant had, in a pre-trial motion in limine, successfully argued
       that the defendant’s status as a death row inmate not be introduced. The trial
       judge had ruled that the prejudicial effect outweighed the probative value.

                                              -16-
       During her testimony, the victim was asked about the individuals who were
       confined with her on the segregated unit on the night of this incident. The
       victim responded as follows: “Yes. Me and Natasha Cornett has [sic] been on
       A. Yeah. And of course Christa was back there locked down, being that she
       was on death row.” No contemporaneous objection or motion for mistrial was
       made by the defendant. The issue was not raised until the filing of the motion
       for new trial.

              We conclude that the defendant has waived this issue by her failure to
       object or request a curative instruction. Tenn. R. App. P. 36(a). Furthermore,
       we do not believe the trial judge’s refusal to grant a new trial on this basis was
       an abuse of discretion. Although the unsolicited remark was prejudicial, it was
       mitigated by the setting in which these events took place. The inmates of the
       maximum security wing of the Tennessee Prison for Women are generally
       considered to have attained their status through other than innocent and
       meritorious means. During the course of the trial it was revealed that the
       defendant, the victim, Natasha Cornett, and Joana Rosa were all incarcerated
       for murder convictions. The unsolicited comment was not sufficiently
       prejudicial under this factual background to warrant a new trial.

Pike, 2006 WL 547997, at *6-7. We agree with this reasoning and conclude that the trial
transcript does not show that trial counsel’s failure to request a mistrial was prejudicial, given
the substantial proof of the Petitioner’s guilt and the criminal backgrounds of the parties
involved. Although Jones mentioned once, early in her testimony, that the Petitioner was on
death row, it was evident to the jury that the Petitioner, Jones, and Cornett all had murder
convictions and were all confined in the maximum security wing of the prison. Given the
circumstances of this case, we conclude that trial counsel made a strategic decision to
continue with the trial rather than request a mistrial, especially after Jones’s testimony proved
favorable to the defense. Co-counsel testified that trial counsel was extremely successful in
showing that Jones was a “very angry” and “violent” individual during his cross-examination
of her. In addition, he stated that trial counsel “couldn’t have gotten [Jones] to testify any
worse [for the State] than [he] already had[,]” which is particularly significant in light of the
fact that the Petitioner would have been retried following a mistrial. Moreover, given the
facts of this case and the trial court’s comment immediately following Jones’s statement, it
would have been reasonable for trial counsel to believe that the court would not have granted
a request for a mistrial and would have, at most, only given a curative instruction to the jury,
something that trial counsel and co-counsel had specifically testified they did not want.
Upon review, we conclude that Jones’s statement regarding the Petitioner’s death row status
did not give rise to a “manifest necessity” requiring a mistrial. Accordingly, the record



                                              -17-
supports the finding of the post-conviction court that the Petitioner failed to establish by clear
and convincing evidence that trial counsel was ineffective regarding Jones’s statement.

         Second, the Petitioner argues that trial counsel provided ineffective assistance by
failing to make an offer of proof for the purpose of questioning Jones about her prior bad acts
and by failing to recall Jones as a defense witness in order to establish her history of
violence. She claims that the offer of proof and recalling Jones would have damaged Jones’s
credibility and would have supported the defense theory that Jones was the aggressor and that
the Petitioner acted in defense of Cornett when she choked Jones. The State argues that even
if trial counsel’s performance was deficient, the Petitioner failed to prove that the Petitioner
suffered prejudice, given that she admitted to multiple individuals that she acted with
premeditation when she assaulted Jones. See id. at *3. We agree.

       At trial, the court granted the State’s motion in limine precluding the admission of
Jones’s institutional history of violence, with the exception of the incidents the Petitioner
knew of at the time she choked Jones and the incident during the earlier fire involving the
fight between Cornett and Jones. Following this ruling, trial counsel requested that he be
allowed to make an offer of proof with Jones at the end of the day on the issue of her history
of violent acts. After the State’s re-direct examination of Jones, trial counsel requested that
he be allowed to cross-examine Jones about her institutional history of violence on the basis
that Jones had opened the door to this issue when she testified that she only fought
individuals who fought her. The trial court ruled that the defense would be allowed to
question Jones about her history of institutional violence only if it called Jones during its
case-in-chief after the Petitioner had testified about her knowledge of Jones’s violent acts.
Ultimately, trial counsel did not make an offer of proof regarding Jones’s testimony on this
issue and did not call Jones during the defense’s case-in-chief.

       The post-conviction court held that trial counsel was not ineffective in failing to make
an offer of proof or in failing to call Jones during the defense’s proof:

              The Petitioner’s next allegation in her Amended Petitioner for Post-
       Conviction Relief is that trial counsel [and co-counsel] were ineffective [in]
       failing to introduce evidence of the victim’s extensive history of violence
       including violence within the Department of Corrections and outside it. After
       hearing the testimony of Ms. Jones at the hearing in this matter and reviewing
       the exhibits admitted at the hearing, the Court finds that Ms. Jones has an
       extensive history of violent behavior. The Court finds that Ms. Jones[’s]
       record for violence was not admitted into evidence at trial but many of Ms.
       Jones’[s] violent incidents were testified to at trial. The Court finds that the
       Petitioner testified, at trial, to numerous violent incidents involving Ms. Jones,

                                               -18-
       both in [the] Knox County jail and in TPFW . . . . The Court finds that the
       Petitioner was permitted to recall Ms. Jones at trial to testify after the
       Petitioner had testified regarding her knowledge of Ms. Jones’[s] violent
       behavior; however, the Petitioner’s trial counsel did not do so. The Court
       notes that [trial counsel] testified at the hearing that he felt that it had been
       clearly established at the conclusion of the proof that Ms. Jones was extremely
       violent, and she was an unpredictable witness. The Court accredits trial
       counsel’s strategic decision not to recall Ms. Jones to testify. The Court,
       however, notes that trial counsel could have made a proffer of Ms. Jones’[s]
       testimony, but did not do so. The Court finds, despite the failure to make a
       proffer, that the amount of Ms. Jones’[s] prior violent incidents that were
       testified to at the trial clearly established Ms. Jones as a very violent person,
       and any failure by trial counsel to not make a proffer of her testimony did not
       result in prejudice to the Petitioner. The Court finds that, in addition to Ms.
       Jones testifying regarding her aggressive tendencies, Ms. Joanna Rosa, an
       inmate, testified at trial regarding a violent incident at the Knox County jail,
       wherein Ms. Jones attacked her while Ms. Rosa had a cast on her leg . . . . The
       Court finds that Ms. L[e]thea Sweat also testified at trial regarding a violent
       incident involving Ms. Jones, wherein Ms. Jones attempted to attack Ms.
       Cornett, despite Ms. Cornett being handcuffed at the time . . . . The Court also
       finds that Mr. Randy Mang[r]um, who worked at TPFW from 1981 to 2001,
       testified at trial regarding Ms. Jones’[s] tendencies for violent behavior and
       precautions necessary in dealing with her in the segregation unit . . . . The
       Court finds that Ms. Jones’[s] tendencies toward violent behavior [were] well
       established at trial, and the Petitioner failed to establish by clear and
       convincing evidence that had additional evidence of Ms. Jones’[s] violence
       [been] presented at trial, the outcome would have been different.

       At the post-conviction hearing, trial counsel acknowledged that he did not have a
reason for failing to make an offer of proof. However, he stated that he made a strategic
decision not to recall Jones as a defense witness because Jones’s past violent acts had been
established by other witnesses and because the proof showed that Jones was a “very
dangerous individual” that routinely hurt people. He added that he did not want to recall
Jones because she would have had an opportunity to say something damaging for the
Petitioner’s case. Trial counsel stated that he did not believe Jones “had made a very good
witness in front of the jury [for the State] and [he] didn’t want to give her an opportunity to
possib[ly] come back and be a better witness.” In addition, co-counsel testified that recalling
Jones was not worth the risk because she was “unpredictable,” and her testimony had been
very favorable for the defense. He also stated that Mangrum and several inmates had
provided substantial proof that Jones was an extremely violent woman.

                                             -19-
        We conclude that the record fully supports the post-conviction court’s holding that
trial counsel’s failure to recall Jones or make an offer of proof was not prejudicial.
Accordingly, the Petitioner is not entitled to relief.

                                    CONCLUSION

       Upon review, we conclude that the Petitioner has failed to prove by clear and
convincing evidence that she received ineffective assistance of counsel. The judgment of the
post-conviction court is affirmed.

                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                            -20-
