        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 18, 2016 Session

          JEREME DANNUEL LITTLE v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                      No. 291007 Rebecca June Stern, Judge


                No. E2015-01190-CCA-R3-PC – Filed August 19, 2016


Following an evidentiary hearing, the Hamilton County Criminal Court granted the
Petitioner, Jereme Dannuel Little, post-conviction relief and vacated his conviction for
especially aggravated kidnapping. On appeal, the State contends that the post-conviction
court erred by concluding that the Petitioner received ineffective assistance of counsel
based on counsel‟s (1) failure to seek a severance of two counts of aggravated robbery
from the especially aggravated kidnapping charge, either pre-trial or after judgments of
acquittal were granted on the aggravated robbery charges; (2) failure to interview
witnesses from the store where the victim was allegedly kidnapped; and (3) decision to
call a witness to testify without first adequately interviewing that witness. Following our
review, we reverse the judgment of the post-conviction court and reinstate the
Petitioner‟s conviction for especially aggravated kidnapping.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
M. Neal Pinkston, District Attorney General; and Kristen Drew Spires, Assistant District
Attorney General, for the appellant, State of Tennessee.

Lloyd A. Levitt, Chattanooga, Tennessee, for the appellee, Jereme Dannuel Little.
                                               OPINION

                                   FACTUAL BACKGROUND1

                                              I. Trial

       Following a jury trial, the Petitioner was convicted of one count of especially
aggravated kidnapping, for which he received an eighteen-year sentence. The Petitioner
had initially been charged with two counts of aggravated robbery in addition to the
especially aggravated kidnapping charge, and these three counts were tried together in
April 2008. His conviction was upheld on appeal by both this court and our supreme
court. See State v. Little, 402 S.W.3d 202 (Tenn. 2013); State v. Jereme Dannuel Little,
No. E2009-01796-CCA-R3-CD, 2012 WL 8718 (Tenn. Crim. App. Jan. 3, 2012), aff‟d.

       The Petitioner‟s conviction arose from the July 10, 1998 robbery at the home of
Chris Rogers. Little, 402 S.W.3d at 204. The robbery remained unsolved for the next
seven years. In September 2004, Detective Bill Phillips of the Chattanooga Police
Department received a phone call from a confidential informant, which prompted him to
re-investigate the 1998 robbery. Detective Phillips interviewed Mr. Rogers and
determined that the information provided by the confidential informant was consistent
with the original incident report. Id. at 204-05.

       Detective Phillips interviewed Demetrius Grayson in early 2005, and Grayson
confessed to the robbery and implicated the Petitioner as his accomplice. Little, 402
S.W.3d at 205. Additionally, Grayson told Detective Phillips that the Petitioner had
kidnapped and tortured him after the robbery. Thereafter, the Petitioner was charged
with two counts of aggravated robbery stemming from the robbery of the Rogers
residence and one count of especially aggravated kidnapping of Grayson. Id.

       Mr. Rogers testified that on July 10, 1998, at approximately 1:00 a.m., a man
knocked on his door and asked to speak with his son, Bruce Jackson. Little, 402 S.W.3d
at 205. Two men then entered Mr. Rogers‟ home, demanding “„the dope and the
money.‟” After Mr. Rogers informed the men that he did not have drugs or money, the
men searched the house. One man held Mr. Rogers at gunpoint while the other took
jewelry and other items from a dresser in the bedroom. The men forced Mr. Rogers to lie
down in the bathtub, and Mr. Jackson was ordered to lie next to the bathtub for ten to

1
  This section is intended to provide a factual overview of the Petitioner‟s case. In the analysis section of
this opinion, we recount additional facts from the direct appeal record that were not included in the
previous opinions of this court and our supreme court but which are germane to the issues presented in
this appeal.

                                                    -2-
fifteen minutes. The two men left, and Mr. Rogers called 911. Mr. Rogers was unable to
identify either of the robbers. Id.

       Mr. Jackson also testified and identified Grayson as the man who had knocked on
Mr. Rogers‟s door. Little, 402 S.W.3d at 205. However, Mr. Jackson was unable to
identify the Petitioner as the second robber, although he had known the Petitioner as a
child. Additionally, Mr. Jackson opined that the Petitioner was not the second robber
because his body type and tone of voice did not match that of the robber. Id.

       Grayson testified at trial that it was the Petitioner‟s idea to rob the Rogers
residence because he thought it was a “„dope house.‟” Little, 402 S.W.3d at 205.
Grayson‟s account of the robbery was substantially the same as recounted by Mr. Jackson
and Mr. Rogers. According to Grayson, during the course of the robbery, he became
concerned that the Petitioner was going to kill one or both of the victims, and Grayson
wanted no “„part of a murder, if there was going to be one.‟” Id. at 205-06.

        Grayson fled the scene, discarding his gun during his flight. Little, 402 S.W.3d at
206. He ran to a grocery store in East Chattanooga, where “he encountered the
[Petitioner], who called out from his car, threatening to shoot Grayson if he tried to run.”
Grayson submitted to this threat, and the Petitioner drove him to “„a crack house.‟”
According to Grayson, the Petitioner tied him to a chair and tortured him for several
hours, asking him why he had fled from the robbery. Grayson further testified that the
Petitioner forced him to smoke crack cocaine and eat dog feces. Grayson claimed that
after a couple of hours, he was able to escape from the house via a window. Id.

        On cross-examination, Grayson testified that the house he was taken to by the
Petitioner was rented by Lewis and Gabriel Buchanan. Little, 402 S.W.3d at 206.
Grayson said that he, the Petitioner, the Buchanans, and “„a few other guys‟” stayed at
the house intermittently and that they used the house to deal crack cocaine. Grayson
testified that the Buchanans were in the house while the Petitioner had him tied up and
was torturing him and that there were other people “walking in and out” of the house,
although no one offered him any assistance. Id.

       Kelvin Ellison was interviewed by Detective Phillips in 2005, and he told
Detective Phillips that he had visited the Buchanans‟ house in the summer of 1998 and
saw a “„dude . . . getting whooped.‟” Little, 402 S.W.3d at 206. At trial, he identified the
“dude” as Grayson. In the interview, which was played for the jury, Mr. Ellison said that
“they” were beating Grayson and “„had the dog . . . stuff.‟” Mr. Ellison told Detective
Phillips that the Petitioner was in the room where Grayson was tied up and was
responsible for the assault. Further, he related that Grayson had dog feces around his
mouth and on his clothes. He said that, to his knowledge, the reason for the beating was
related to money or someone running off with something. Mr. Ellison gave this same
                                            -3-
account at trial. He additionally testified that the Petitioner had “complained loudly
about „people running off on him and messing him over.‟” Id.

       Terna Hatten, a defense witness, testified that he had previously been incarcerated
with Mr. Ellison. Little, 402 S.W.3d at 207. According to Mr. Hatten, Mr. Ellison
approached him in jail and asked him to testify falsely against the Petitioner.
Specifically, Mr. Ellison requested that Mr. Hatten testify that the Petitioner had “„robbed
[Grayson] and kidnapped him and supposedly made him eat dog doo doo or some old
thing like that.‟” Mr. Hatten alleged that during this same conversation, Mr. Ellison
admitted that someone named “Two-Hype,” later identified as Lewis Buchanan, was
actually responsible for the kidnapping. According to Mr. Hatten, he told Mr. Ellison
that he would consider cooperating, but he ultimately did not do so because he did not
want to lie or send someone to prison for something the Petitioner did not do. Id.

       Lesley Allen,2 Grayson‟s cousin, was also called as a defense witness. Little, 402
S.W.3d at 207. Mr. Allen testified that he learned about the kidnapping from Grayson,
who told him that Two-Hype had kidnapped him, taken him to a house, and forced him to
smoke crack cocaine and eat dog feces. On cross-examination, Mr. Allen testified that he
had been placed in a cell in an area near the Petitioner while both men were incarcerated.
The State asked Mr. Allen whether he had previously told law enforcement officers that
the Petitioner told him that he had beat Grayson and forced him to smoke crack cocaine
and eat dog feces, but Mr. Allen insisted that Grayson told him that Two-Hype was
responsible. Id.

       Johnny Carter testified for the defense that he lived at a house with the Buchanans
and Grayson during the summer of 1998. Little, 402 S.W.3d at 207. According to Mr.
Carter, he would have been surprised to see the Petitioner at the house because he was
not “„from that side of town.‟” He further stated that he had overheard the Buchanans
and Grayson discussing their desire to kill the Petitioner. Mr. Carter testified that
Grayson and the Buchanans had a “heated argument” that summer after Grayson stole
three ounces of crack cocaine from them. Mr. Carter said that he left the house and did
not witness the assault on Grayson, but he speculated that the Buchanans carried out the
attack. Id.

        The Petitioner testified and denied participating in the robbery and kidnapping.
Little, 402 S.W.3d at 208. The Petitioner said that he had never been to the Buchanans‟
house. According to the Petitioner, the Buchanans and Grayson “wanted to kill him
because he wore „the wrong color [shirt] in the wrong place,‟” based on their separate

2
  Mr. Allen‟s first name is spelled different ways throughout the record. We adopt the spelling utilized by
this court and our supreme court on direct appeal.

                                                   -4-
neighborhoods and gang affiliations. The Petitioner said that he was from south
Chattanooga and that if he had gone to east Chattanooga and committed the crimes he
was accused of, “the Buchanan brothers . . . would have killed [him] or members of his
family.” Id.

       At the conclusion of this proof, the Petitioner moved for judgments of acquittal on
the robbery charges based on uncorroborated accomplice testimony, which the trial court
granted. Little, 402 S.W.3d at 208. The State indicated that it still wished to refer to the
robbery evidence during its closing argument because it had led to the kidnapping.
Defense counsel objected, but the court overruled the objection, allowed the State to
reference the robbery during closing, and instructed defense counsel to refrain from
mentioning the acquittals. Id.

                             II. Post-Conviction Proceedings

        On March 10, 2014, the Petitioner filed a timely petition for post-conviction relief
with the assistance of counsel, wherein he alleged that he received ineffective assistance
of counsel during his trial. The Petitioner asserted that trial counsel was ineffective (1)
for failing to request a severance of the aggravated robbery counts from the especially
aggravated kidnapping count, both prior to trial and subsequent to the trial court‟s grant
of the motion for judgments of acquittal; (2) for failing to move to strike the evidence
related to the robbery after the judgments of acquittal were granted; (3) failing to request
a jury instruction limiting consideration of the robbery evidence as motive for the
kidnapping; (4) for calling Mr. Allen as a witness, whom he had insufficiently
interviewed and whose testimony was “extremely damaging”; (5) for failing to retain an
expert in federal sentencing law “to clarify extremely confusing testimony relating to the
consequences of [Mr.] Ellison‟s cooperation at tr[ia]l”; (6) for calling Mr. Carter as a
witness; (7) for failing to adequately cross-examine Grayson about his criminal record;
(8) for failing to “discredit State claims that . . . Grayson [was] retarded”; (9) for failing
“to adequately argue the ongoing confusion about the address where the [kidnapping]
was supposed to have occurred”; (10) for failing to “investigate claims that . . . Grayson
went to Sandy‟s Mini Mart at 1 a.m.”; and (11) for failing to “point out” that Grayson
“did not seek any medical attention or call the police after claiming that he had been
tortured for hours.”

       At the evidentiary hearing, the Petitioner testified that he and trial counsel never
discussed a motion to sever the offenses prior to trial. However, according to the
Petitioner, after the trial concluded, trial counsel expressed his opinion that a motion to
sever should have been filed.

      The Petitioner said that trial counsel found Mr. Allen‟s name when looking
through a “detective‟s folders or file after [the detective] left the stand . . . .” Trial
                                           -5-
counsel asked the Petitioner whether he knew Mr. Allen, and the Petitioner said that he
did not. The Petitioner testified that trial counsel called Mr. Allen to testify without
adequately interviewing him. According to the Petitioner, the State then called a witness
who significantly undermined Mr. Allen‟s testimony.

       The Petitioner introduced a statement from Sandy Sirhan, who previously worked
at Sandy‟s Mini Mart, where the Petitioner was alleged to have kidnapped Grayson. Both
the Petitioner and the State stipulated that the statement reflected what her testimony
would have been if called at trial. In the statement, Ms. Sirhan said that her mother
owned “Sandy‟s Mini Mkt.,” where she was working in July 1998. Ms. Sirhan stated that
she worked from “noon or [1:00 p.m.] and worked until closing.” Additionally an off-
duty police officer worked each day from 6:00 p.m. until 12:00 a.m., when the store
closed. According to Ms. Sirhan, the store “wouldn‟t stay open past 12:30 a.m.” Ms.
Sirhan also stated that Sandy‟s was “under investigation by the [United States] Marshall”
from 1993 to 1999 and that a daily log book was kept during that time which reflected the
time the store opened and closed each day.

        The Petitioner testified that trial counsel never interviewed Ms. Sirhan, or anyone
else from Sandy‟s, and that her testimony would have undermined Grayson‟s account of
that night. The Petitioner said that, at trial, Grayson had testified that he was at Sandy‟s
after 1:00 a.m. on the night of the kidnapping and that he was allowed into the store. The
Petitioner further opined that Ms. Sirhan‟s testimony that an off-duty police officer was at
the store would have called into question Grayson‟s claim that he was kidnapped there.

       Trial counsel testified that he represented the Petitioner at his 2008 trial.3 Trial
counsel recalled that he requested judgments of acquittal on the aggravated robbery
charges because there was “zero corroboration” of Grayson‟s account of the robbery.
According to trial counsel, after the judgments of acquittal were granted, he did not
request a severance because he “was so focused on” having “the jury informed of [the
Petitioner‟s] judgments of acquittal . . . .” He continued that he “felt that it was
appropriate the jury be advised of that[,] [b]ecause if there wasn‟t a basis for the
underlying charge it would in effect take out the motive for [the Petitioner] to have
committed the [especially aggravated kidnapping].” He said that this preoccupation
resulted in his “not even think[ing] to ask for a severance of the charges.”

      In trial counsel‟s opinion, the evidence pertinent to the aggravated robbery charges
was harmful to the Petitioner‟s case because the prosecutor “really focused on [the

3
  Trial counsel testified that the Petitioner initially went to trial on these charges in 2006, but that trial
ended in a mistrial because counsel realized during trial that he had been provided with the incorrect
location of the house where Grayson was taken during the kidnapping.

                                                     -6-
robbery]” during closing argument and, if the charges had been severed, “[the prosecutor]
would have been limited or potentially even prohibited” from doing that. Trial counsel
opined that if he had requested a severance of the robbery charges after the judgments of
acquittal were granted, the robbery evidence would at least not have been accepted as
substantive evidence. Trial counsel agreed that he also failed to move to strike the
evidence of the aggravated robbery, which he said “should have all been in the similar
motion to sever.” Trial counsel testified that “in hindsight [he] always worried . . . or
thought” that if the trial court had not granted the acquittals, the jury would have been
instructed regarding accomplice testimony, and trial counsel could have argued that there
was no reliable evidence that the Petitioner participated in the robbery and, therefore, no
motive for the kidnapping.

       Trial counsel testified that he “wish[ed] [he] could go back” and request that the
robbery evidence be stricken and that he believed that severing the robbery evidence
“would have eliminated the ability for [the prosecutor] to go on in closing [and] that [the
Petitioner] would have had a better chance of being acquitted.” Trial counsel
characterized the prosecutor‟s reliance on the robbery evidence in closing argument as
“pretty substantial.”

       On cross-examination, trial counsel admitted that the two aggravated robbery
counts and the especially aggravated kidnapping were charged in separate indictments
and that he consented to consolidating them because he thought joinder was mandatory
because they were closely related. The trial counsel explained that, based on previous
cases he had before the trial court, he “anticipated” that the court would not have granted
a motion to sever.

       According to trial counsel, he requested a jury instruction that the Petitioner had
been acquitted of the aggravated robbery charges. Trial counsel said that if the trial court
had given that instruction, his closing argument would have been that there was no proof
of the robbery and no motive for the kidnapping. He continued, saying, “[T]he whole
basis of the allegation on the kidnapping rested on the fact that [the Petitioner] was
allegedly upset that [Grayson] ran out during the robbery and this was some sort of
payback for that.”

       Trial counsel testified that he found Mr. Allen‟s name “after the close of the
State‟s proof [when he] was provided . . . access to the detective‟s notes . . . .” Counsel
recalled that Mr. Allen was in jail at the time, and counsel met with him in a “holding cell
and spoke with him briefly.” Based on that discussion, counsel “thought [Mr. Allen]
would make a good witness.” Trial counsel could not remember details of the
conversation with Mr. Allen, but he estimated it lasted approximately five to ten minutes
and that he found Mr. Allen to be credible.

                                            -7-
       On re-direct examination, trial counsel opined that Mr. Allen‟s testimony on
“direct went beautifully” but that “cross went horribly.” Specifically, trial counsel
recalled that on cross-examination Mr. Allen was questioned about a proffer he made to
federal authorities, which contained statements contrary to his trial testimony. Trial
counsel said that he was not aware of this proffer at the time he called Mr. Allen as a
witness and that he would not have called Mr. Allen had he known about it.

       Following the conclusion of proof, the post-conviction court immediately granted
the Petitioner post-conviction relief. The post-conviction court stated that in “[eighteen]
years on the bench this was probably the messiest trial that [it had] ever sat through.”
The court found that trial counsel should have filed a motion to sever, although the court
did not “know how [it] would have ruled given everything.” The court said that the
motion to sever should have been filed “pretrial, but certainly once the aggravated
robber[ies] were dismissed.”

        Additionally, the post-conviction court found that “Lesl[ey] Allen, while he stuck
to his story[,] he was a terrible witness for the [Petitioner].” The court concluded that if
trial counsel “had time and put a little more thought into it,” Mr. Allen would probably
not have been called as a witness and that calling him “was a strategic error.” The court
concluded that trial counsel, “in these particular little ways,” was ineffective and granted
the petition for post-conviction relief.

       Later, in a written order, the post-conviction court listed the following grounds as
meriting post-conviction relief:

       (1) [t]rial counsel was ineffective in that he failed to move, pre-trial[,] for
       severance of his [a]ggravated [r]obbery and [e]specially [a]ggravated
       [k]idnapping charges, because he assumed the [c]ourt would overrule such
       a motion; and

       (2) [t]rial counsel was ineffective in that he failed to move for a severance
       of [the] Petitioner‟s [a]ggravated [r]obbery and [e]specially [a]ggravated
       [k]idnapping charges at the close of the State‟s proof and at the time the
       [c]ourt granted [the] Petitioner‟s Motion for Judgment of Acquittal on [his]
       [a]ggravated [r]obbery charges; and

       (3) [t]rial counsel was ineffective in that he failed to interview witnesses at
       and around the convenience store where the victim of the [e]specially
       [a]ggravated [k]idnapping claimed he was kidnapped by [the] Petitioner;
       and


                                             -8-
       (4) [t]rial counsel was ineffective in calling as a defense witness, Lesley
       Allen, who[m] he had spoken with only briefly in a holding cell, prior to
       calling him into court as a defense witness and without investigating and
       discovering the fact that Lesley Allen had given contradictory and
       incriminating statements to police during the police investigation.

The post-conviction court did not include any additional factual findings in its order
granting the petition and provided no analysis regarding its conclusion that trial counsel
was ineffective. It is from this decision that the State now timely appeals.

                                        ANALYSIS

        On appeal the State contends that the post-conviction court erred in granting the
petition for post-conviction relief. Specifically, the State contends that the Petitioner has
not shown that he was prejudiced by trial counsel‟s failure to file a motion for severance;
by counsel‟s failure to interview Ms. Sirhan; or by counsel‟s decision to call Mr. Allen as
a witness. The Petitioner responds that the post-conviction court properly concluded that
he received ineffective assistance of counsel and that he was entitled to post-conviction
relief.

                                   I. Standard of Review

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel‟s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel‟s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel‟s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel‟s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In reviewing
counsel‟s conduct, a “fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
                                            -9-
of counsel‟s challenged conduct, and to evaluate the conduct from counsel‟s perspective
at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular strategy or
tactic failed or even hurt the defense does not, alone, support a claim of ineffective
assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W. 2d 4, 9 (Tenn. 1982).

        “Because a petitioner must establish both prongs of the test, a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland
standard has been applied to the right to counsel under article I, section 9 of the
Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94 (Tenn. 2009). On
appeal, we are bound by the trial court‟s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised
by the evidence are to be resolved” by the post-conviction court. Id. Because they relate
to mixed questions of law and fact, we review the trial court‟s conclusions as to whether
counsel‟s performance was deficient and whether that deficiency was prejudicial under a
de novo standard with no presumption of correctness. Id. at 457.

                            A. Failure to File Motions to Sever

      On appeal, the State first challenges the post-conviction court‟s finding that trial
counsel was ineffective for failing to file a motion to sever the aggravated robbery
charges from the especially aggravated kidnapping charge both prior to trial and after
judgments of acquittal were granted. The Petitioner disagrees, asserting that the post-
conviction court properly granted relief.

        In his brief, the Petitioner includes “sub-issues” that he states are “directly related
to” the severance issue: whether trial counsel was ineffective in failing to move to strike
evidence related to the robbery charges following the judgments of acquittal and whether
trial counsel was ineffective for failing to request a jury instruction limiting consideration
of the robbery evidence to show a motive for the kidnapping. However, we note that
these sub-issues were listed as separate and distinct issues from the severance issue in the
Petitioner‟s petition. Further, the post-conviction court did not discuss either a motion to
strike or a limiting jury instruction when granting relief on the four specified grounds and
clearly stated that the other grounds in the petition were without merit. Based on the
                                              -10-
Petitioner‟s brief, he is not claiming that the post-conviction court erred in denying relief
on the grounds related to a motion to strike and a limiting jury instruction but rather that
they are subsumed by the severance issue. Although the fact that a motion to strike was
not filed and a limiting instruction was not given may affect our overall analysis
concerning the prejudicial impact of the failure to file a motion to sever, we decline to
treat these as separate grounds of ineffective assistance of counsel because they have not
been properly presented for our review. Accordingly, we limit our review of the
severance issue to the way that it was presented in the lower court and petition.

                   1. Motion to Sever Following Judgments of Acquittal

        First, we dispense with the issue regarding counsel‟s failure to file a motion to
sever after the judgments of acquittal were granted. As our supreme court noted on direct
appeal, the grant of judgments of acquittal on the robbery charges “essentially resulted in
a severance of the offenses at that time.” Little, 402 S.W.3d at 209. Further, because
there was no explanation accompanying the court‟s grant of relief, we cannot discern why
the court granted relief on this basis. Although at the evidentiary hearing trial counsel
testified that the supreme court opinion stated that he should have moved for a severance
following the acquittals, as the above passage indicates, that was not the case. The
supreme court did note that trial counsel “„could have, and should have, moved to strike
any evidence related to the robber[y].‟” Id. at 210 (quoting Little, 2012 WL 8718, at *6)
(alteration in original). However, as noted above, the post-conviction court denied relief
on the ground relating to the failure to request a motion to strike, and the Petitioner has
not challenged that ruling on appeal. Accordingly, this issue does not merit post-
conviction relief, and the decision of the post-conviction court is reversed in this regard.

                               2. Pre-Trial Motion to Sever

        Next, we consider the post-conviction court‟s grant of relief on the basis that trial
counsel was deficient for failing to file a pre-trial motion to sever and that the Petitioner
was prejudiced by this deficiency. In its brief, the State contests that trial counsel
rendered deficient performance by failing to file a pretrial motion to sever; however, the
State conceded at oral argument that counsel‟s performance was deficient. Nevertheless,
the State posits that the Petitioner has not proven prejudice because proof of the robbery
would have been introduced to prove motive at a trial for especially aggravated
kidnapping even if the offenses had been severed. The State acknowledges that the
prosecutor relied upon evidence relating to the robbery during closing argument but
insists that the prosecutor was merely arguing that the robbery was motive for the
kidnapping. The Petitioner disagrees and asks that we affirm the post-conviction court‟s
grant of relief on this ground.


                                            -11-
        In order to prove prejudice based on counsel‟s failure to file a motion to sever, a
petitioner must demonstrate that the motion would have been granted. See Robert Gentry
Galbreath v. State, No. M2003-02807-CCA-R3-PC, 2005 WL 119534, at *19 (Tenn.
Crim. App. Jan. 19, 2005). Although the post-conviction court also presided over the
Petitioner‟s trial, when granting relief on this ground, the post-conviction court stated that
it did not know how it would have ruled on a motion to sever. Thus, we must begin our
analysis by assessing the viability of a pre-trial motion to sever the offenses.

       Initially, the Petitioner was indicted separately for the aggravated robberies and
especially aggravated kidnapping. Prior to trial, the State requested consolidation, which
the Petitioner agreed to. At the evidentiary hearing, trial counsel testified that he did not
oppose consolidation because he believed the events surrounding the offenses were so
closely related that joinder was mandatory. Additionally, at the time the offenses were
joined, the trial court stated that joinder was “probably” mandatory “if it‟s the same basic
event.”

       Tennessee Rule of Criminal Procedure 13(a) provides that a court “may order
consolidation for trial of two or more indictments . . . if the offenses . . . could have been
joined in a single indictment . . . pursuant to Rule 8.” Rule 8(a) provides for mandatory
joinder of offenses where the offenses are “based on the same conduct or arise from the
same criminal episode; . . . within the jurisdiction of a single court; and . . . known to the
appropriate prosecuting official at the time of the return of the indictment(s) . . . .” Rule
8(b), governing permissive joinder of offenses, provides that “[t]wo or more offenses
may be joined in the same indictment” if the offenses are either (1) “parts of a common
scheme or plan” or (2) “of the same or similar character.”

       However, Rule 14(b)(2) provides that where offenses are mandatorily joined
pursuant to Rule 8(a), “the court shall grant a severance of offenses either (1) “[b]efore
trial on the motion of the state or the defendant when the court finds a severance
appropriate to promote a fair determination of the defendant‟s guilt or innocence of each
offense” or (2) “[d]uring trial, with the consent of the defendant, when the court finds a
severance is necessary to achieve a fair determination of the defendant‟s guilt or
innocence.” Likewise, Rule 14(b)(1) provides that if “two or more offenses are joined . .
. pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless
the offenses are part of a common scheme or plan and the evidence of one would be
admissible in the trial of the others.”

       The primary issue of any severance case is whether the evidence of one offense
would be admissible in the trial of the other if the two offenses remained severed. State
v. Garrett, 331 S.W.3d 392, 402 (Tenn. 2011). Put another way, a severance motion is
essentially “„a question of evidentiary relevance.‟” Id. (quoting State v. Spicer, 12
S.W.3d 438, 445 (Tenn. 2000)). This inquiry necessarily implicates Tennessee Rule of
                                           -12-
Evidence 404(b), which excludes evidence of “other crimes, wrongs, or acts” committed
by the defendant when offered only to show the defendant‟s propensity to commit the
crime charged. This is because such evidence lacks relevance and invites the finder of
fact to infer guilt from propensity. Id. at 402-03.

       However, evidence of prior bad acts may be admissible for other purposes, such as
“to show identity, guilty knowledge, intent, motive, to rebut a defense of mistake or
accident, or to establish some other relevant issue.” State v. Moore, 6 S.W.3d 235, 239
n.5 (Tenn. 1999) (quoting State v. Hallock, 875 S.W.2d 285, 292 (Tenn. Crim. App.
1993)). Additionally, other act evidence may be introduced to provide the trier of fact
with the “full story” of the crime or crimes. State v. Hoyt, 928 S.W.2d 935, 943 (Tenn.
Crim. App. 1995) (citing Neil Cohen, et. al., Tennessee Law of Evidence, § 404[13] (6th
ed. 2011)), overruled on other grounds by Spicer, 12 S.W.3d at 447. Accordingly, where
“contextual evidence is relevant to an issue other than criminal propensity and its
probative value is not outweighed by the danger of unfair prejudice, then that evidence
may be properly admissible.” State v. Gilliland, 22 S.W.3d 266, 271 (Tenn. 2000).
“[C]ontextual background evidence, which contains proof of other crimes, wrongs, or
acts, may be offered as an „other purpose‟ under Rule 404(b) when exclusion of that
evidence would create a chronological or conceptual void in the presentation of the case
and that void would likely result in significant jury confusion concerning the material
issues or evidence in the case.” Id. at 272 (footnote omitted).

       After careful consideration, we conclude that the Petitioner has failed to carry his
burden of proving prejudice. Certainly, we agree that trial counsel‟s guessing that the
court would deny a motion to sever was not a good reason for opting to not file the
motion. However, upon the record before us, we think it is unlikely that the trial court
would have granted a severance. The robbery and kidnapping were closely related in
time, and the alleged motive for the kidnapping was Grayson‟s flight during the robbery.
Grayson‟s testimony was that he abandoned the Petitioner during the robbery and that the
Petitioner soon after caught up with him at a convenience store, forcing Grayson into his
car at gunpoint. Grayson testified that while the Petitioner was torturing him, the
Petitioner repeatedly asked why Grayson had abandoned him during the robbery.
Likewise, Mr. Ellison testified that when the Petitioner was torturing Grayson, he
lamented that he was tired of “people running off on him and messing him over.” This is
a case where the robbery evidence was helpful as a means to provide the contextual
background or “full story” for the kidnapping. Without knowing anything about the
robbery, the jury would have likely been confused about the circumstances surrounding
the kidnapping. Consequently, the Petitioner has failed to demonstrate that a motion to
sever would have been granted.



                                           -13-
        We also conclude that the Petitioner has failed to establish that he was otherwise
prejudiced by the aggravated robbery evidence. We acknowledge that an examination of
the prejudice prong is not synonymous with a review of the sufficiency of the evidence,
see Pylant v. State, 263 S.W.3d 854, 875 (Tenn. 2008); however, “a court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or
jury[,]” see Strickland, 466 U.S. at 695. As this court noted on direct appeal,
“[Grayson‟s] testimony about motive vis-à-vis the aggravated robbery charges added
little to the State‟s case concerning the especially aggravated kidnapping charge,
especially given the strength of the State‟s proof of the especially aggravated
kidnapping.” Little, 2012 WL 8718, at *8.

        While the Petitioner has posited that the prosecutor‟s closing argument relied
heavily upon the evidence of the aggravated robbery, we disagree. The prosecutor did
begin his closing argument by recounting the facts of the robbery, but the majority of his
time was spent recapping the evidence related to the kidnapping. We do not think the
prosecutor‟s recount of the robbery was improper or overbearing given that it did provide
a motive for the remaining charge before the jury. Also, to the extent that the Petitioner
contends the failure to file a motion to strike exacerbated the failure to file a motion to
sever, we find it unlikely the trial court would have granted such request. The State
specifically requested that it be allowed to argue in closing that the robbery was motive
for the kidnapping, which the trial court allowed. The trial court obviously considered
that the evidence of the robbery was reliable enough to be presented to the jury as motive
for the kidnapping.

       Although counsel deficiently performed in not requesting a limiting instruction
informing the jury that it should only consider the robbery as motive evidence, we do not
see that the petitioner established prejudice. Even without that instruction, we think it
unlikely that the jury used the robbery evidence to infer the Petitioner‟s propensity to
commit the kidnapping. After the acquittals were granted, the only relevance of the
robbery evidence was to show a motive and provide contextual background for the
kidnapping. Additionally, the jury was informed that the aggravated robbery charges
were of no concern to the jury and should not be the subject of speculation. We presume
that the jury followed this instruction. See State v. Woods, 806 S.W.2d 205, 211 (Tenn.
Crim. App. 1990).

        In sum, we conclude that the Petitioner has not shown that, but for counsel‟s
failure to file a motion to sever, there is a reasonable probability that he would not have
been convicted of especially aggravated kidnapping. The post-conviction court‟s grant of
relief on this ground is therefore reversed.



                                           -14-
                            B. Failure to Interview Ms. Sirhan

        The State next contends that the Petitioner failed to show he was prejudiced by
trial counsel‟s failure to interview Ms. Sirhan because, although her testimony might
have undermined Grayson‟s credibility, it was not substantial enough to affect the
outcome of the trial. The Petitioner responds that Ms. Sirhan‟s testimony “would have
cast doubt” upon Grayson‟s testimony, and he asks that we affirm the judgment of the
post-conviction court in this respect.

        In order to satisfy the prejudice prong of Strickland when alleging that trial
counsel was ineffective for failing to investigate or call witnesses, the petitioner must
“show that through reasonable investigation, trial counsel could have located the witness .
. . . and . . . elicit[ed] both favorable and material testimony from the witness.” State v.
Denton, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990)). At the evidentiary hearing, the Petitioner
produced a signed statement from Ms. Sirhan and both sides stipulated that it reflected
what her trial testimony would have been. However, trial counsel was not asked a single
question about his efforts to locate and interview potential witnesses from the store where
the kidnapping was alleged to have taken place. This omission is especially important
given the time that elapsed between the kidnapping and the charges against the Petitioner.
Ms. Sirhan stated in the affidavit that she stopped working at Sandy‟s in December 1998,
and the Petitioner was not charged in this case until sometime in 2005.       Ms. Sirhan
did not relate where she was in 2005 or whether she could have been located by counsel.
Obviously, post-conviction counsel was able to locate her in 2014, when she provided her
statement, but that fact does not establish whether she was available at the time of the
Petitioner‟s trial. Without information regarding trial counsel‟s attempts to locate and
interview potential witnesses at the time of trial, we are unable to assess counsel‟s
performance in this regard. The simple fact that Ms. Sirhan did not actually testify at trial
does not establish that trial counsel‟s performance was deficient. Accordingly, the
Petitioner has not proven that trial counsel provided deficient performance in this respect,
and the post-conviction court‟s grant of relief on this ground is reversed.

                   C. Decision to Call Lesley Allen as Defense Witness

        Finally, the State contends that trial counsel‟s decision to call Mr. Allen was a
reasonable strategic decision based on the information he had at the time and that,
although he was impeached by a rebuttal witness, it did not affect the outcome of the
trial. The Petitioner again responds by asking that we affirm the post-conviction court‟s
ruling on this ground.

      At trial, Mr. Allen testified that Grayson told him that “Two-Hype” had kidnapped
him and taken him to a house where he forced Grayson to smoke crack cocaine and eat
                                            -15-
dog feces. On cross-examination, the State attempted to impeach Mr. Allen with a
previous statement he made wherein he implicated the Petitioner as Grayson‟s kidnapper.
Mr. Allen denied making the previous statement and insisted that Grayson told him Two-
Hype was responsible for the kidnapping.

        Detective Phillips was later called as a rebuttal witness. Detective Phillips
testified that he was present at a proffer session between Mr. Allen and federal
authorities. Detective Phillips described a “proffer” as an opportunity for inmates to
provide information about crimes. At the proffer, Detective Phillips asked Mr. Allen if
he knew about an incident where Grayson was tied up, and Mr. Allen finished his
sentence, saying, “[A]nd made to eat dog s--t.” Mr. Allen told Detective Phillips that
Grayson had told him about the incident and that the Petitioner had also told him about it.
According to Mr. Allen, the Petitioner had tried to get Mr. Allen to convince Grayson not
to prosecute the Petitioner, because the Petitioner knew that Mr. Allen and Grayson were
related. Detective Phillips said that Mr. Allen had told him that the Petitioner admitted
he had put a gun to Grayson‟s head and forced him to eat dog feces and smoke crack
cocaine. Mr. Allen said that Grayson had told him this story implicating the Petitioner
“years ago.”

       On cross-examination, Detective Phillips admitted that there was no oath given
before a proffer session; thus, the information provided was not sworn to. The detective
further admitted that Mr. Allen‟s statement was made on February 2, 2007, after the
Petitioner‟s first trial on the robbery and kidnapping charges, which had ended in a
mistrial in February 2006. Detective Phillips agreed that several witnesses went back to
the county jail after the first trial.

       At the evidentiary hearing, trial counsel said that he found Mr. Allen‟s name in
detective notes provided by the State at the close of its case-in-chief. After speaking with
him for five to ten minutes, he believed that Mr. Allen would provide favorable testimony
and decided to call him as a witness. Trial counsel opined that Mr. Allen‟s direct
testimony went “beautifully” but that cross-examination went “horribly.”

       When the post-conviction court granted relief on this ground, it acknowledged that
the decision to call Mr. Allen was strategic but ultimately concluded that it harmed the
defense and that trial counsel would not have called Mr. Allen had he put more thought
into the decision.

       Upon review, we once again conclude that the Petitioner has failed to prove that
counsel‟s decision to call Mr. Allen as a witness constituted ineffective assistance. Trial
counsel was forced to make a judgment call about whether to call Mr. Allen as a witness
after he learned of him in the middle of trial. During his brief interview, counsel
determined that Mr. Allen was credible. Indeed, Mr. Allen provided helpful testimony on
                                            -16-
direct examination, alleging that Grayson had implicated Two-Hype in his kidnapping
rather than the Petitioner. Further, when the State attempted to impeach Mr. Allen on
cross-examination, he stuck to his trial testimony, insisting that Grayson named Two-
Hype as the responsible party. However, the State later offered Detective Phillips as a
rebuttal witness, and any positive effect of Mr. Allen‟s testimony was significantly
undermined. Nevertheless, when reviewing an attorney‟s performance, we must evaluate
the performance at the time of trial and avoid the “distorting effects of hindsight.” See
Strickland, 466 U.S. at 689. Although Mr. Allen‟s testimony was ultimately unhelpful,
“the fact that a particular strategy or tactic failed or even hurt the defense does not, alone,
support a claim of ineffective assistance.” Cooper, 847 S.W.2d at 528. Based on the
information he had at the time, counsel made a reasonable decision to call a witness who
he believed would provide favorable testimony, and the Petitioner has not proven
counsel‟s performance was deficient.

       Additionally, the Petitioner has not proven that he was prejudiced by Mr. Allen‟s
testimony. Competing stories about who perpetrated the kidnapping were offered at trial.
Grayson and Mr. Ellison testified that the Petitioner was responsible, while Mr. Hatten,
Mr. Allen, and Mr. Carter cast doubt upon that testimony and implicated Two-Hype in
the kidnapping. Also, the Petitioner himself testified and denied participating in either
the robbery or kidnapping. Therefore, even if Mr. Allen had not been called as a witness,
the jury would have heard the same evidence. Of course, we do not deny that more
evidence, even if it is of a similar nature to other evidence, strengthens the case against a
defendant. However, the quantity of the evidence against the Petitioner was not
substantially increased based on Detective Phillips‟s rebuttal evidence relating to Mr.
Allen‟s previous statement. Accordingly, we cannot conclude that the outcome of the
proceeding would have been different if Mr. Allen had not been called as a witness, and
the Petitioner has failed to carry his burden in proving that he was prejudiced in this
respect. Consequently, the post-conviction court‟s grant of relief on this ground is
reversed.

                                       CONCLUSION

              Based on the foregoing and the record as a whole, the judgment of the
post-conviction court is reversed, and the Petitioner‟s conviction for especially
aggravated kidnapping is reinstated.



                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE


                                             -17-
