                                                                                       09/08/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 7, 2017

                 LARRY MCNUTT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 11-02363       Glenn Ivy Wright, Judge
                     ___________________________________

                          No. W2016-01086-CCA-R3-PC
                      ___________________________________

Petitioner, Larry McNutt, appeals the post-conviction court’s denial of relief from his
convictions for reckless endangerment and aggravated assault. On appeal, Petitioner
argues that he received ineffective assistance of counsel. After a thorough 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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.

Andrew S. Deshazo, Memphis, Tennessee (on appeal) and Warren Campbell, Memphis,
Tennessee (at trial) for the appellant, Larry McNutt.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Charles Summers, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Background

       The facts of Petitioner’s underlying offenses were set out by this court on direct
appeal:

        At trial, the parties presented the following evidence: Jessie Lewis, the
        victim, testified that, at approximately 9:00 p.m. on October 29, 2010, he
        was “shooting craps” on “Dexter” near his home in Memphis,
        Tennessee. The victim recalled that he won between eight and ten
dollars that night. After collecting his winnings, the victim began his
walk home.

The victim testified that, as he walked, the Defendant approached him,
asking for money. The victim explained to the jury that he had known
the Defendant “all [his] life.” In response to the Defendant’s request for
money, the victim told the Defendant, “[N]o, I don’t have it like that.”
The victim said the Defendant then cut the victim twice with a box
cutter. After he was cut, the victim continued to his home where he
called for an ambulance.

The victim testified that he spoke with the police at his home about the
incident before emergency responders transported him to the hospital for
medical treatment. He said that he received four stitches for the wound
on his head and twenty stitches for the wound on his neck. The victim
said that, several days later, he met with a police sergeant and once again
recounted the encounter between him and the Defendant. The victim
identified the Defendant in a photographic line-up for police. He also
identified photographs of his scars taken at the police station.

On cross-examination, the victim agreed that he and the Defendant had
engaged in a fight earlier in the day. The victim denied smoking crack
with the Defendant on the day of this incident or attacking the Defendant
with a baseball bat.

Tion Shabazz, a Memphis Police Department officer, testified that he
responded to an assault call at approximately 9:30 p.m. on October 29,
2010. When Officer Shabazz arrived at the victim’s residence, he
observed a large cut on the victim’s neck and another cut on his head.
Officer Shabazz said that the victim did not appear to be under the
influence of drugs or an intoxicant and that the victim communicated the
events surrounding his injuries. Officer Shabazz recalled that the victim
told him that the Defendant approached the victim and asked for two
dollars. When the victim refused, the Defendant cut the victim with a
box cutter.

Kimberly Hearn, a Memphis Police Department officer, testified that,
while responding to a disturbance call on November 8, 2010, she was
approached by the victim, who was not involved with the disturbance
call. The victim told Officer Hearn that the Defendant, who was
responsible for attacking him on October 29, was in the area. The victim
showed Officer Hearn the scar on his neck and then pointed out the
Defendant.     Officer Hearn confirmed the information with the

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supervising officer, Sergeant Kevin Williams, and then the Defendant
was transported to the bureau.

Kevin Williams, a Memphis Police Department sergeant, testified that he
participated in the investigation of an aggravated assault against the
victim. Sergeant Williams said that he met with the victim, on
November 5, 2010, approximately a week after the incident. He showed
the victim a photographic line-up containing a picture of the Defendant,
and the victim positively identified the Defendant as the perpetrator.
Sergeant Williams recalled that the victim told him that the Defendant
approached the victim after a dice game and asked for money. When the
victim refused to give the Defendant money, the Defendant cut the
victim with a box cutter. Sergeant Williams confirmed that he observed
the injuries to the victim during their meeting a week after the incident.

Sergeant Williams testified about the Defendant’s arrest in this matter.
He said that Officer Hearn contacted him on November 8, 2010, about
the victim’s accusation that the Defendant had cut him with a box cutter.
Sergeant Williams said that he instructed Officer Hearn to take the
Defendant into custody and transport him to the “Robbery Office.”
Once there, Sergeant Williams advised the Defendant of his Miranda
rights. The Defendant’s statement, which was recorded in the form of
officer’s questions and the Defendant’s responses, was then read into the
record as follows:

  [Q.] Did you participate in the aggravated assault of [the victim]
  that occurred on October 29th, 2010[,] at approximately nine p.m.?
  A. Yes.
  Q. How do you know [the victim]?
  A. We grew up together.
  Q. Were you armed with a weapon? If so, describe it.
  A. It was a razor knife that I lay carpet with.
  Q. Describe in detail the events prior, during, and after the
  aggravated assault.
  A. Me, [the victim], and Phoebe were getting high on Hunter
  Street, so I had another little piece of dope left. [The victim] got
  mad because I would not give him any. Phoebe didn’t say nothing.
  So [the victim] got mad, started calling me bitches and hoes. I
  sprung on [the victim] and I hit him with a razor. [The victim] went
  one way, then I went the other way.
  Two hours later I’m on Dexter, and him and two of his nephews
  jumped out the truck and come at me with a bat. When he came at


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  me with a bat, I hit him and knocked him down. I fell on top of
  him, then his nephew grabbed me from behind.
  Q. Was [the victim] armed when you sliced him with a razor knife?
  A. I didn’t see nothing in his hands.
  Q. Where did you slice [the victim] with the razor knife?
  A. The left side of his face, above his eye.
  Q. Did you slice [the victim] on the back of his beck [sic] with a
  razor knife?
  A. No, I did not.

Sergeant Williams confirmed that the Defendant reviewed this statement
and then added, “Two days later, [the victim] came and said he was sorry
and to let it alone.”

Reginald Partee testified on the Defendant’s behalf. He stated that he
witnessed the October 29, 2010 altercation involving the victim and the
Defendant. Mr. Partee could not recall the exact time but stated that the
incident occurred at night. He said that he and the Defendant were
standing on Dexter when a red pick-up truck drove up. Mr. Partee said
that two men were in the cab of the truck, and the victim was riding in
the back of the truck. As soon as the truck stopped, the victim jumped
out of the back of the truck carrying a baseball bat and walked toward
the Defendant and Mr. Partee. He described what happened next as
follows: “[The Defendant and victim] traded words, [the victim] aimed
the bat like this going towards [the Defendant] and they tangled.” At
some point, the two men that were sitting in the cab of the truck, whom
Mr. Partee recognized as the victim’s nephews, broke up the fight
between the Defendant and the victim. He said the victim’s nephews
told the victim to “get in the truck,” and the three men left while the
Defendant and Mr. Partee remained on Dexter.

On cross-examination, Mr. Partee agreed that the victim had “difficulty”
walking due to arthritis but maintained that the victim “jumped” out of
the back of the pick-up truck. Mr. Partee said that the Defendant
“rushed” the victim as the victim approached “to protect himself.” He
said that the victim did not hit the Defendant because he did not “get a
chance.” Mr. Partee said that the victim’s nephews intervened once the
Defendant was on top of the victim. Mr. Partee said that he did not see
“any blood” following this incident. He agreed that he was convicted
three times of theft of property and twice of aggravated robbery. He
stated that he had never told police about what he observed on the night
of October 29, 2010.


                                  -4-
Barry Borner testified that he observed an incident between the victim
and Defendant that occurred between 9:00 p.m. and 10:00 p.m. on
October 29, 2010. Mr. Borner said that he was in his yard when he saw
the victim and the victim’s nephew drive up in a truck. The victim got
out of the back of the truck with a bat or stick and approached the
Defendant. The Defendant charged the victim and knocked him to the
ground. The two men “tussled for a minute” before the victim’s nephew
got out of the truck, retrieved the victim, and drove away.

On cross-examination, Mr. Borner said that he remembered the “scuffle”
between the two men but that he could not remember the date of this
incident. Mr. Borner said that he did not see the victim bleeding,
although he had later heard that the victim “had been cut.” He said that
an ambulance was at the victim’s house on the same night he witnessed
the altercation. Mr. Borner agreed that he did not call police at the time
of the incident and that, even after he was aware the Defendant had been
arrested, he did not speak with police about the altercation he witnessed.

Phoebe James testified that she observed an incident between the victim
and the Defendant that occurred on Hunter Street “while it was still light
out,” at around 5:30 or 6:00 p.m., on October 29, 2010. Ms. James said
that she, the Defendant, and the victim had gotten “high together” and
that the two men were gambling. The victim lost all of his money to the
Defendant. The victim asked the Defendant for “a hit.” The Defendant
told the victim, he “didn’t have enough,” and then the Defendant and
Ms. James started to walk away. The victim “said something crazy” and
swung at the Defendant. The two men then began “tussling.” Ms. James
said this went on for two or three minutes before she broke up the two
men. She said that the victim then walked away through “the pathway.”
She noticed “little droplets of blood,” so she called out to the victim.
When he turned around, she observed a “little cut on his head.” She
stated that she did not call the police about the incident because “[y]ou
don’t call no police about no little cat fight like that.”

On cross-examination, Ms. James agreed that she had been smoking
crack the night before and throughout the day of this incident. Ms.
James said that she, the Defendant, and the victim had been “smoking so
fast” that she could not estimate how much they had smoked that day.
Ms. James said that she did not see a box cutter at any time during the
incident she observed. Ms. James testified that she had “about twenty
theft” convictions.



                                  -5-
State v. Larry McNutt, No. W2012-02114-CCA-R3-C, 2014 WL 792148, at *1-4 (Tenn.
Crim. App. Feb. 20, 2014).

Post-Conviction Hearing

       At the post-conviction hearing, Petitioner testified that he and trial counsel
discussed Petitioner’s case in “small details,” and he did not receive a discovery packet
from trial counsel nor did they review discovery. Petitioner testified that he received a
plea offer of ten years at forty-five percent release eligibility that in hindsight he wished
he had accepted. He said that the victim did not want to pursue charges against him.
However, trial counsel was not allowed to ask the victim that question at trial, and trial
counsel did not file a motion in limine to determine the admissibility of the evidence.
Trial counsel was also prohibited from asking the victim about his relationship with
Petitioner. Petitioner testified that there was improper testimony at trial by a police
officer who testified that Petitioner was under arrest before the offenses occurred, which
Petitioner claimed was untrue.

       Petitioner testified that trial counsel prepared a motion for new trial on Petitioner’s
behalf which included “three issues.” He and trial counsel never discussed the motion
nor the grounds that Petitioner wanted included. One of the issues that Petitioner wanted
raised was the improper testimony by the police officer concerning Petitioner’s arrest.
He also wanted trial counsel to raise the issues of the trial court’s exclusion of testimony
from the victim regarding the victim’s desire not to prosecute and testimony about
Petitioner’s relationship with the victim. The last issue that Petitioner wanted raised
concerned the improperly admitted evidence about the background of one of the three
defense witnesses. However, the issues that Petitioner wanted raised were not raised in
the motion for new trial.

        Petitioner testified that appellate counsel raised the issues that he had wanted
raised in the motion for new trial in her brief on direct appeal. He said that the Court of
Criminal Appeals reviewed the issues under the plain error since they had not originally
been raised in the motion for new trial. Petitioner asserted that he would have had a
better chance and that the outcome of his appeal would have been different if those issues
had not been waived and then considered under plain error review.

        On cross-examination, Petitioner testified that he rarely met with trial counsel, and
trial counsel only wanted to discuss a plea offer. He said that trial counsel never told him
what his “argument” would be. Petitioner provided trial counsel with the names of
witnesses. He said that he told his side of the facts to trial counsel, and he told trial
counsel that the victim wanted to talk to trial counsel about not testifying. Petitioner
agreed that he and the victim got into an altercation after a dice game. The victim had
abrasions and lacerations to his face and body. The State’s theory was that the cuts were
caused by a box cutter which was attested to by the victim at trial.

                                            -6-
       Petitioner testified that one of his witnesses, “Vebee” (Phoebe) James, admitted
that she smoked crack with Petitioner. She also had twenty prior theft convictions which
she testified to at trial. Petitioner testified that another of his witnesses, Reginald Partee,
also had a lengthy criminal record, and he was questioned at trial about some of his
convictions. Petitioner said that two of his three witnesses, Reginald Partee and Barry
Barner, had similar testimony. He testified that trial counsel never informed him that the
three defense witnesses might give conflicting testimony. Petitioner admitted that all of
the issues that were discussed at the post-conviction hearing were considered on direct
appeal by the Court of Criminal Appeals. However, upon questioning by the post-
conviction court, Petitioner said that he was not aware that the issues were raised on
appeal, which directly contradicted earlier testimony by Petitioner.

        We note that trial counsel passed away prior to the post-conviction hearing. His
case file was included as an exhibit at the post-conviction hearing. Trial counsel’s notes
reflected his tactics to impeach the victim, object to evidence, and argue that the State
lacked due diligence. The file also contained the indictment, arrest report, affidavit of
complaint, advice to witness viewing photographic display, the victim’s statement and
identification of Petitioner, Petitioner’s statement to police and waiver of rights,
photographs of the victim’s injuries, the victim’s medical records, jury instructions, jury
information, trial counsel’s personal notes from preliminary matters, voir dire, and the
trial. Trial counsel’s notes also reflected that he spoke with Petitioner concerning the
offense and noted potential witnesses. His notes also established that he called Petitioner
four times, leaving messages, before Petitioner returned his call.

Analysis

        Petitioner contends that his trial counsel provided ineffective assistance because
trial counsel failed to file a motion for new trial that included “all grounds that were to be
considered on appeal[.]”

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the [c]onstitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. 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. T.C.A. § 40-30-
110(f); see Dellinger v. State, 279 S.W.3d 282, 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

                                             -7-
was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        Criminal defendants are constitutionally guaranteed the right to effective
assistance of counsel. Dellinger, 279 S.W.3d at 293 (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). “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).

        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. 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
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.” Id. 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).

       Prejudice requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.

        “It has long been the rule in this state that in order to preserve errors for appeal,
the appellant must first bring the alleged errors to the attention of the trial court in a
motion for new trial.” Fahey v. Eldridge, 46 S.W3d 138, 141 (Tenn. 2001); see also
Tenn. R. App. P. 3(e) (requiring that issues be specifically raised in a timely motion for
new trial in order to avoid waiver). In James Frederick Hegel v. State, No. E2013-
01630-CCA-R3-PC, 2014 WL 2106703 (Tenn. Crim. App. May 19, 2014), this court
stated:



                                            -8-
         Indeed, a defense counsel’s complete failure to preserve and pursue
         available posttrial remedies can constitute performance so deficient that
         it becomes presumptively prejudicial. See Wallace v. State, 121 S.W.3d
         652, 657 (Tenn. 2003) (presuming prejudice where counsel completely
         failed to file a motion for new trial, withdraw as counsel, or otherwise
         preserve the defendant’s appellate remedies despite defendant’s clear
         desire to pursue post-trial relief). However, like in the present case,
         where counsel files a motion for new trial but fails to raise certain issues,
         the defendant must prove “actual prejudice” in order to be entitled to
         relief. See State v. Kenneth S. Griffin, No. E2000-02471-CCA-R3-CD,
         2001 WL 710178 (Tenn. Crim. App. June 25, 2001) (requiring proof of
         “actual prejudice” where counsel filed a motion for new trial but failed
         to include certain issues).

Id. at *9.

        In this case, trial counsel filed a motion for new trial that included three issues: (1)
the trial court’s failure to grant a judgment of acquittal at the conclusion of the State’s
proof; (2) insufficient evidence as to the aggravated assault conviction; and (3) the trial
court erred in its duty as 13th juror when it did not set aside the jury’s verdict based upon
the insufficiency of the evidence at trial. The motion did not include every issue that
Petitioner thought should have been raised. However, Petitioner has not shown actual
prejudice by trial counsel’s failure to include the issues that he wanted raised in the
motion for new trial. In his argument in his brief, Petitioner does not specify what issues
trial counsel should have raised in the motion for new trial. He merely states, “it
excluded from it every alleged error that pertained to [Petitioner’s] particular case.”
Furthermore, Petitioner fails to state in his brief how the exclusion of any issue affected
the outcome of his case. Therefore, as pointed out by the State, Petitioner has waived his
issue concerning ineffective assistance of counsel because he does not cite to the record
in support of his argument, and he failed to identify the issues that trial counsel failed to
raise in the motion for new trial. See Tenn. R. Crim. P. 10(b). ( “Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.”); Tenn. R. App. P. 27(a)(7) (A brief shall contain
“[a]n argument ... setting forth the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record...
relied on.”); Michael Fields v. State, No. E2015-01850-CCA-R3-PC, 2016 WL 5543259,
at *9 (Tenn. Crim. App. Sept. 29, 2016).

       Furthermore, a petitioner who argues that issues presented in the trial court should
have been preserved for appellate review must at the very least convince the appellate
court and the post-conviction court the omitted issues had merit. Obviously, the best way
to show that is to present a legal argument for each issue. Not only did Petitioner fail to

                                             -9-
do this in his brief, he asserts it is not necessary to do so because his case falls under the
category of being “presumptively prejudicial.” As noted above, when a timely motion
for new trial is actually filed, and the issue is whether ineffective assistance was rendered
by a failure to preserve certain issues on appeal, in order to be entitled to relief, a
petitioner must prove actual prejudice. Petitioner has failed to do so, and he is thus not
entitled to relief in this appeal.

                                         CONCLUSION

       Based on the foregoing authorities and analysis, we affirm the judgment of the
post-conviction court.

                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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