           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                         Assigned on Briefs February 11, 2015

            CHRISTOPHER M. BLACK v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                      No. 2004-A-246    Monte Watkins, Judge




                 No. M2014-01607-CCA-R3-PC - Filed March 19, 2015




In 2006, the Petitioner, Christopher M. Black, was convicted by a Davidson County jury of
two counts of aggravated rape and two counts of aggravated robbery, for which the Petitioner
received an effective sentence of 50 years in the Department of Correction. On direct appeal,
this Court affirmed the Petitioner’s convictions and sentence.1 Thereafter, the Petitioner filed
a petition for post-conviction relief, which was denied following a hearing. On appeal from
the denial of post-conviction relief, the Petitioner contends that he received ineffective
assistance of counsel based upon trial counsel’s failure to hire a DNA expert to analyze the
evidence against the Petitioner. Following our 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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and T IMOTHY L. E ASTER, J., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Christopher M. Black.

Herbert H. Slatery, III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Victor S. Johnson, District Attorney General; Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.




       1
        State v. Christopher M. Black, M2010-02176-CCA-R3-CD, 2011 WL 7562957, at *1 (Tenn.
Crim. App. Dec. 13, 2011), perm. to app. denied (Tenn. May 16, 2012).
                                         OPINION

                             I. Facts and Procedural History

         On February 6, 2004, the Petitioner was indicted on two counts of aggravated rape,
a Class A felony, and two counts of aggravated robbery, a Class B felony. Following a jury
trial, the Petitioner was convicted as charged. For each aggravated rape conviction, the
Petitioner received a 20-year sentence to be served consecutively to one another. For each
aggravated robbery conviction, the Petitioner received a 10-year sentence to be served
concurrently with one another but consecutively to the aggravated rape convictions, for an
effective 50-year sentence. The facts underlying the Petitioner’s convictions, as summarized
by this Court on direct appeal, are as follows:

       This case stems from a brutal attack upon a female victim, L.P., and a male
       victim, D.B., beginning in the late hours of February 12, 1999, and ending in
       the early morning hours of February 13, 1999. The victims had been friends
       for several years. Around 11:30 p.m. on the night of the offense, the female
       victim drove to the male victim’s parent’s home where the male victim lived
       to borrow a movie. She pulled her vehicle in front of his home and paged him
       to come outside. The male victim came outside, gave her the movie, and sat
       inside her vehicle to talk. About fifteen minutes later, the male victim was
       getting out of the vehicle when he and the victim saw two men with hoods
       coming through his yard.

       The female victim stated that the two men came around from behind her
       vehicle, over to the driver’s side, and knocked on the window. Neither victim
       knew the two men. The female victim cracked the window, and a revolver
       was stuck in the window to her temple. The men screamed at the female
       victim, “Get out of the car, bitch. Get out of the car bitch.” The vehicle was
       still running, and she unlocked the door and opened it. The female victim said
       that a chrome revolver was put to her head. She stated, “[I]t looked like it had
       a pearl, or like, an engraved handle. Looked more like a collector’s gun.”

       When the female victim began to get out of the vehicle, the men pushed her
       back inside. At this point, she stated that she was in the front seat of her
       vehicle. The male victim had gotten out of the vehicle and was on the ground.
       The men went through the vehicle and told the victim they wanted her wallet
       and money. She told them that she only had ten dollars, and they yelled at her
       for not having more money. The men looked through the trunk twice and took
       the female victim’s credit cards.

                                             -2-
The female victim differentiated between the two men by their skin tone.
After the men asked for the female victim’s money, the female victim stated
that the man with the dark complexion demanded that she perform oral sex on
him. She testified that he said, “‘[Y]ou’re going to suck my d***.’” She said
that she complied because she had a gun to her head and was terrified. She
stated, “It started in the street. He made me get on my knees in the street and
perform oral sex. And they both switched back and forth between four to six
times.” Both men forced her to perform oral sex against her will and consent
by threatening her with a weapon.

The female victim testified that after the men forced her to perform fellatio on
them, the man with the lighter complexion said, “‘I want to f*** this b****.’
And they made [her] pull down [her] pants and bend over in the street. And
they took turns raping [her] from behind.” When one man was raping her, the
other was watching for oncoming cars. After being vaginally raped, the
female victim was forced back inside the car to perform oral sex. Initially, the
female victim could not recall if either man ejaculated. However, she later
stated that, at some point, one of the men ejaculated in her mouth. She could
not recall where she was physically positioned but she gagged, and spit the
ejaculate outside the vehicle on the pavement of the street.

The female victim recalled that the male victim begged the men to stop. The
men began to leave, but came back. They ordered the male victim to run down
the street while they held the female victim by her hair at gunpoint. The men
then pushed the female victim, and told her to run and not to look back. The
female victim found the male victim, and they ran down the street knocking
on doors until someone gave them a phone to call 911. The male victim’s
father came to pick them up and later took them to the crime scene to wait on
the police. When the female victim returned to the scene, her vehicle was still
there with the four doors open.

At trial, the female victim identified photographs from the crime scene. She
specifically identified a photograph of the ejaculate that she spit out onto the
pavement. It was admitted into evidence as collective exhibit 1G. She
recalled that the police officers marked exhibit 1G as significant. She
described both men as in their early twenties. She also estimated that the
attack lasted around thirty to forty-five minutes. She stated that the men were
dressed alike. They wore masks, black jeans and sweatshirts, but one man had
on a red shirt and the other a blue shirt. The man with the blue shirt had a dark
complexion and the man with the red shirt had a light complexion.

                                       -3-
The female victim was not missing any of her credit cards, but the men took
her ten dollars. She told the police what happened and was given a
gynecological examination that night. The police obtained internal vaginal
swabs and swabs of her mouth. A black light was placed over her naked body
to determine the existence of any pubic hairs or semen. The police also took
the female victim’s clothes. The female victim stated that she did not discuss
what she was going to tell the police with the male victim.

The female victim recalled that, at some point, the two men took their masks
off. However, she could only remember seeing the lighter complected man’s
face. She and the male victim provided the police with a sketch; however, she
had no input in the sketch developed by male victim. She stated that she did
not remember anything about the man with the dark complexion.

On cross-examination, the female victim acknowledged that she had trouble
remembering the sequence of events; specifically, whether she was forced to
perform oral sex or was vaginally raped first. In regard to the events leading
up to the man’s ejaculating in her mouth, she said she could not remember
whether both men or only one man forced her to perform oral sex. She further
conceded that she was unsure if the man with the lighter complexion
ejaculated in her mouth. She also admitted that she had previously
misidentified a busboy that she saw at a restaurant from a photographic lineup
as the man with the lighter complexion. This photographic lineup was
admitted into evidence as exhibit 8.

The female victim explained that the attack occurred in a residential
neighborhood and that the area was illuminated by the headlights on her
vehicle and by various streetlights. She recalled that the inside of the vehicle
was illuminated from the dash board. She explained that the men wore masks
when they pistol-whipped [the male victim] but took them off during the rape.
She had no memory of either man wearing gloves but stated that both men held
her credit cards in their hands.

The male victim testified and corroborated the female victim’s testimony. He
explained that when he went outside to meet her that night, everyone else
inside his house was asleep. He stated that the men took his coat, which
contained his wallet and $350. He also had a “stereo face” inside his coat
pocket. The two men also took his earrings, skull cap, and tennis shoes. He
noticed that the men had a silver weapon, and he saw one of the men forcing
the victim to perform oral sex on him.

                                      -4-
The male victim also distinguished the men by skin tone and said that the man
with the dark complexion had the gun. He saw the darker complected man,
whom he later identified as [the Petitioner], forcing the victim to perform oral
sex on him. The male victim confirmed that the man with the dark complexion
also hit him in the back of the head with the gun. He went to the hospital and
received nine stitches to the head and had a scar as a result. He provided a
statement to the police and worked on a sketch that same day. The male victim
said that he worked on the sketch which was admitted into evidence as exhibit
2-A. When the sketches in this case were developed, the male victim and the
female victim were not in the same room.

The male victim identified [the Petitioner] as the person he saw forcing the
female victim to perform oral sex on him from a photographic lineup, which
was admitted into evidence as exhibit 4. The male victim testified that it was
“the eyes” that stood out to him. He said that the man was younger than he,
5’10” tall and 130 pounds. He admitted that he had previously been confused
about whether [the Petitioner] wore a red shirt or a blue shirt but said he was
certain of his identification.

On cross-examination, the male victim stated that his credit card was used at
a gas station and two other stores within thirty minutes of the offense. He
conceded that in two prior photographic lineups, he identified another
individual as someone who “looked like” the dark complected man. He
clarified that in each of those lineups, he told Detective Sutherland that he
“wasn’t one hundred percent sure” or was “not positive” of the identification.
Four years after the initial photographic lineups, the male victim was brought
in to view another photographic lineup. Detective Sutherland told him he had
a possible suspect and that there was a DNA match. The male victim testified
that when he identified [the Petitioner] from the photographic lineup,
Detective Sutherland told him that he had chosen the person confirmed by
DNA analysis.

The male victim’s sister testified that she was at home on the night of the
offense. She heard noises outside and heard someone say “Make those ‘hos
run.” She woke her father, went outside, and noticed the female victim’s
vehicle in front with the doors open and things on top of the roof. There was
no one around at the time. She called the non-emergency number, and she and
her father closed the doors to the vehicle. She later received a call from a
neighbor indicating the female victim and her brother were there and had been
hurt. She went inside to upgrade her previous non-emergency call to a 911
call.

                                      -5-
Michael Evans, a ten-year veteran with the Metro-Nashville Police
Department, was one of the first officers to respond to the scene on the night
of the offense. He secured the crime scene, blocked one of the side roads, and
called the “ID division” because it was a major crime. He received a
description of the suspects from the male victim and put out a “BOLO” or “be
on the look-out” announcement containing the male victim’s description of the
two men involved in the offense. He was told that one of the men had on blue
jeans, not black jeans. He was also told that one of the men had on a red
pullover sweater, not a red t-shirt and a black pullover sweater. He was further
told that the other man wore a blue pullover sweater and blue jeans.

Johnny Lawrence, an officer with the Technical Investigation Division (TID)
of the Metro-Nashville Police Department, testified that he responded to the
crime scene on the night of the offense. He did not completely examine the
vehicle at the scene that night. However, he took the vehicle to another
location to be processed. All of the items at the scene were collected by
Officer Lawrence. He stated that he collected evidence of bodily fluid off the
roadway, which was located near the center of the street on the driver’s side
of the vehicle, and was visible to the naked eye. Officer Lawrence
photographed the substance and obtained samples of the evidence. At trial, he
explained his efforts to collect this evidence:

       I attempted to pick some of it up with what we call a filter paper.
       We use that to do rugs with, mainly with blood. I also use them
       to collect hair samples and items. But I tried to rub the stain to
       try to pick it up, because it was such a broad area, but I tore the
       paper doing that. So, then, I used cotton swabs with distilled
       water, so I could pick it up and get a better collection of it.

Officer Lawrence identified an evidence bag with the number 9972874 as the
original bag in which he placed the evidence swabs collected from the crime
scene. He stated that the bag also contained filter paper and swabs. He
observed that other people had placed their initials on the bag, which indicated
that the contents had been processed or examined. He turned the evidence bag
over to the “refrigeration” unit, specifically Brad Johns, a detective in the
homicide unit. He had no further contact with the evidence. The bag was
admitted into evidence as part of collective exhibit 11.




                                       -6-
Officer Lawrence acknowledged on cross-examination that although he
normally puts his initials on evidence bags, this bag did not contain his initials.
He confirmed that the handwriting on the bag was his. He further stated that
he wrote the complaint number, date, time, location, and a description of the
evidence swabs on the evidence bag. On re-cross examination, he stated he
may have forgotten to put his initials on the bag but affirmed that he turned the
evidence over to Detective Johns. The state admitted exhibit 15, entitled
“Supplemental Report,” in support of Officer Lawrence’s testimony. Exhibit
15 was a typed report containing the victim’s name, the date of the instant
offense, and complaint number 9972874. Exhibit 15, which was signed by
Detective Brad Johns, stated the following:

       At approximately 0220hrs on February 13, 1999, ID Officer
       Lawrence gave me a bag containing swabs that he took from the
       street near [the offense location]. These swabs were put in the
       drying box by myself, and an evidence tracking form was started
       on these items.

At the time of the offense, Detective Brad Johns was assigned to the homicide
unit. He testified and confirmed that he obtained the bag of evidence from
Officer Lawrence from the crime scene in the instant case. He said that he
stood in front of Officer Lawrence and watched him fill out the time the
evidence was collected, the contents of the bag, and the complaint number.
Detective Johns opened the evidence bag and saw that it contained three swabs
and one cloth. He carried that bag of evidence to the property room and placed
it in the drying cabinet for storage. He filled out exhibit 14, an evidence
tracking form which showed the chain of custody, and exhibit 15, the
supplemental report of the evidence. He verified that he locked the storage
cabinet and gave the key to Detective Steve Cleek that morning.

Steve Cleek was a detective in the homicide unit at the time of the offense. He
did not go to the crime scene but became involved in the chain of custody.
Detective Cleek said that Detective Brad Johns had a rape kit, put it in an
air-drying box, and gave him the key to the box because Detective Johns was
not working the next two days. Detective Johns gave Detective Cleek the key
to the box to give to the detectives in the sex crimes unit. Detective Cleek
testified that he gave the key to Detective Sutherland. Exhibits 20A and 20B,
reports by Detective Cleek, were admitted into evidence in support of his
testimony.



                                        -7-
 Phillip Sage, a sergeant with the Metro-Nashville Police Department property
room, testified that only police officers and employees have access to evidence
kept in the property room warehouse. He described a sheet of paper which
documented the police department custody of the evidence in this case. The
sheet was admitted into evidence as exhibit 19. Exhibit 19 showed that on
April 15, 1999, Mary Wilhoite and Mike Nichols took the rape kit from the
property room to the Tennessee Bureau of Investigation (TBI) crime lab. On
August 17, 1999, Detective Sutherland returned the evidence to the property
room from the crime lab.

Sandy Myers, a nurse practitioner at the Nashville General Hospital, testified
regarding the medical legal exam (MLE) performed on the female victim.
Myers stated that she had previously conducted over 500 MLE’s and was
tendered as an expert in the field of medical legal examination. Myers also
testified as the records custodian for the hospital and explained the female
victim’s rape report. The report showed the areas of contact as the mouth, the
vulva, and the vaginal area. It corroborated that the perpetrator ejaculated on
the street and was consistent with the female victim’s being sexually
penetrated. The report further indicated that the perpetrator did not wear a
condom, and swabs from the rape kit tested negative for sperm. The report
was admitted into evidence as exhibit 16, and the rape kit was admitted into
evidence as exhibit 17.

Myers stated that the kit was not retrieved by the police that night. She
explained that in such cases, the kit is locked in a cabinet specified for MLE’s.
She then verified that exhibit 16 showed that the kit was locked in the cabinet
at 4:01 a.m. on the night of offense and released at 8:00 p.m. the same day to
Detective Sutherland. Based on exhibit 18, another hospital report, Myers
stated that [the Petitioner] was brought to the hospital on September 22, 2003,
to have his blood drawn. Exhibit 18 showed all of [the Petitioner’s]
identifying information including his name, date of birth, and social security
number.

Detective Keith Sutherland was assigned to this investigation; however, he did
not go to the crime scene or collect any evidence. He relayed the BOLO’s,
took written statements from the victims, scheduled the sketch with the
victims, and arranged for a time for the victims to review composites.
Detective Sutherland testified that Officer Lawrence had collected certain
evidence which was secured in a drying box in the property room. Detective
Cleek gave him the key which contained the swabs that were taken from the

                                       -8-
crime scene. He stated that he went to the hospital to retrieve the rape kit on
February 15, 1999. The kit was sealed, and Detective Sutherland did not
observe anything unusual about it. Detective Sutherland confirmed that it was
his signature on exhibit 16, the hospital report, showing that he obtained the
rape kit. On February 18, 1999, Detective Sutherland took the rape kit and
placed it in the property room inside the drying cabinet, with the exception of
the blood sample which he placed in the refrigerator. Detective Sutherland
stated that he did not add anything to the rape kit or the bags containing the
swabs recovered from the scene. He later took the evidence from the property
room to the crime lab. Detective Sutherland conceded that he mistakenly
wrote victim/MLE instead of subject/MLE on the TBI request to examine
blood from another suspect. He also explained the fingerprint analysis did not
result in a match with [the Petitioner].

Detective Sutherland stated that he entered the female victims’ description of
the perpetrators in the computer in order to develop the photographic lineup.
As a result, the computer generated a pool of people. Detective Sutherland
additionally explained that unlike the computer generated photographs, he had
to get a photograph of the busboy that the female victim initially believed was
involved in the offense from the Department of Transportation. He confirmed
that the female victim initially identified the busboy as the perpetrator. Other
than a telephonic interview wherein the busboy denied involvement in the
offense, Detective Sutherland did not do any further investigation regarding
the busboy. Detective Sutherland also stated that he did not investigate the
charges on the male victim’s credit card because he believed that any
surveillance tapes that existed at the time of the offense had already been taped
over due to the passage of time.

Detective Sutherland received exhibit 22, a serology report dated July 19,
1999, from [TBI] Agent [Joe] Minor stating that sperm and semen were
present on the evidence swabs taken from the crime scene. Exhibit 22
provided that DNA analysis could be performed upon receipt of a subject
blood standard and a request from the district attorney general. On December
27, 2002, Detective Sutherland filled out a re-submittal form requesting Agent
Minor to compare another suspect’s DNA with the DNA located at the crime
scene and to enter the results into the Combined DNA Index System
(“CODIS”). Detective Sutherland said that he physically checked exhibit 11
out of the property room and took it to the TBI crime lab. He stated that he did
not manipulate the evidence in any way.



                                       -9-
Exhibit 36, another serology report, was dated August 20, 2003. Based on
exhibit 36, the suspect’s blood that Detective Sutherland sent for analysis did
not match the DNA recovered from the crime scene. However, Detective
Sutherland received [the Petitioner’s] name from Agent Minor as a potential
match from the CODIS database. Detective Sutherland subsequently obtained
a search warrant for a sample of [the Petitioner’s] blood. He also observed the
blood sample being drawn from [the Petitioner] and physically took the blood
sample to the TBI. Exhibit 29 was admitted into evidence and was described
as a box containing vials of [the Petitioner’s] blood. After receiving
confirmation that [the Petitioner’s] blood sample matched the DNA from the
semen located at the crime scene, Detective Sutherland obtained a warrant for
[the Petitioner’s] arrest.

Following the DNA confirmation, Detective Sutherland set up a photographic
lineup with the male victim. He did not tell the male victim anything prior to
the viewing. Specifically, Detective Sutherland informed the male victim that
he wanted to set up another photographic lineup “due to a CODIS hit — I
don’t know that I went in to detail.” Detective Sutherland said that the male
victim picked [the Petitioner] “almost immediately” from the photographic
lineup.

Detective Sutherland acknowledged that a second vehicle in [the male
victim’s] driveway had been touched by the perpetrator, but no fingerprint
analysis had been performed. He also confirmed that none of the fingerprints
lifted from the scene belonged to [the Petitioner]. Detective Sutherland further
conceded that in the photographic lineup containing [the Petitioner], the
background of [the Petitioner’s] photograph was blue while the background
of the other photographs was brown. He also admitted that there was no
documentation of the location of the rape kit between February 18 and
February 23. He stated that “[t]he custody of this would have been, either,
one, locked in my office; or, two, locked in ... the drying box, along with the
large bag of clothing we just discussed.” Detective Sutherland said that he did
not break the rape kit down, but he did take the blood sample out and place it
in the refrigerated cabinet. He conceded that this action was not documented.

[Agent] Minor, a forensic scientist for twenty-three years and a special agent
with the TBI crime laboratory, testified that he was the Nashville DNA
supervisor. He was originally provided with evidence from the crime scene in
the instant case in April 1999. The items submitted to the crime lab included
a vial of the female victim’s blood, saliva and vaginal swabs, and a brown bag

                                      -10-
containing three evidence swabs. All of the items were brought into the lab on
April 15, 1999, by Mary Wilhoite. He also received the evidence from the
MLE on the victim. He examined (1) the vaginal swabs, (2) the oral swabs,
(3) the evidence swabs, and (4) the TBI bloodstain card containing the victim’s
blood sample. He retrieved the MLE kit from the evidence vault, recorded the
time, and took it back to his work area. He then broke the seal from the Metro
Police Department to perform his examination. His file noted that he received
the kit “sealed with blue evidence tape.”

In Agent Minor’s first report, there was no exam performed on the female
victim’s DNA. He explained that TBI’s policy at that time was not to perform
an exam when there was no suspect blood standard unless there was a request
from the district attorney. Regarding the vaginal swabs, Agent Minor
observed the presence of both sperm and semen. No sperm was present on the
oral swabs. However, the swabs containing the bodily fluid collected from the
street tested positive for sperm, and Agent Minor took additional cuttings for
later DNA comparison and testing. Agent Minor placed the evidence back in
the box, and sealed it with tamper proof tape.

When he received the re-submittal form, Agent Minor performed DNA
analysis from the semen on the evidence swab against the requested suspect.
The comparison was not consistent with the DNA from the semen recovered
from the crime scene; however, it did show an unknown male profile which
enabled Agent Minor to run that profile in the CODIS database. As a result
of the unknown male profile, Agent Minor received a “CODIS hit” on the
[Petitioner], Christopher Black. Agent Minor stated that when the box
containing the rape kit was returned to him, it was sealed with his original TBI
tape. Agent Minor broke the seal to get into the box, and took the evidence
swabs out. He obtained a complete profile from the evidence swabs.

Agent Minor explained that exhibit 26 was the re-submittal form for the
female victim’s rape kit. The evidence from the kit that was tested in 1999
was re-submitted in 2002. He further stated that exhibit 35 was a copy of the
report with his additions to it. Agent Minor stated:

       So, the first time ... that I got [the rape kit] in 1999 it had been
       sealed. When I received it for DNA analysis I broke my own
       seals, took the evidence out, set it up for DNA analysis. And
       then at the conclusion resealed it with the evidence tape.... So,
       it was initially sealed. It came in sealed. I returned it sealed,
       and taped again.


                                      -11-
       Agent Minor then provided detailed testimony on his search of the DNA
       database called CODIS that contained DNA profiles.

       Agent Minor stated that although he received a CODIS “hit” on [the
       Petitioner], he needed an actual blood sample from [the Petitioner] to confirm
       the CODIS hit. He received a blood sample from [the Petitioner] on
       September 23, 2003. Agent Minor stated that he developed a profile based on
       [the Petitioner’s] blood sample and that [the Petitioner’s] profile “matched” the
       evidence swab collected from the rape kit containing the semen. Agent Minor
       testified that the word “match” meant that the numbers that are the actual allele
       types in the DNA profile. He explained that “for those thirteen locations,
       every one of those numbers are the same.” He further stated that the
       probability that it was not a match in the Caucasian population is one in
       sextillion, and in the African American population it was one in thirty-nine
       sextillion. He testified that the probability that it could be someone other than
       [the Petitioner] exceeded the world’s population by “at least a million times
       over[.]” In conclusion, Agent Minor opined that there was no one else on
       earth who would have the same profile.

       On cross-examination, Agent Minor acknowledged a typographical error in the
       report as to the date the evidence was received.

State v. Christopher M. Black, No. M2007-00970-CCA-R3-CD, 2010 WL 8500217, at *1-9
(Tenn. Crim. App. Feb. 26, 2010), perm. to app. denied (Tenn. Aug. 26, 2010). Upon
review, this Court affirmed the Petitioner’s convictions but remanded for a resentencing
hearing “regarding [the Petitioner’s] sentencing status with respect [to] the 2005 sentencing
act and regarding the issue of consecutive sentencing.” Id. at *1.

       Following a hearing on remand, the trial court sentenced the Petitioner to 25 years for
each count of aggravated rape and to 10 years for each count of aggravated robbery. The
court ordered that the two aggravated rapes be served consecutively but concurrently to the
sentences for robbery, again resulting in an effective sentence of 50 years. On appeal, this
Court affirmed the trial court’s sentences as imposed. State v. Christopher M. Black,
M2010-02176-CCA-R3-CD, 2011 WL 7562957, at *1 (Tenn. Crim. App. Dec. 13, 2011),
perm. to app. denied (Tenn. May 16, 2012).

      On October 18, 2012, the Petitioner timely filed for post-conviction relief. Counsel
was appointed to the Petitioner, and a new petition for post-conviction relief was filed
September 4, 2013. At a hearing conducted June 25, 2014, the Petitioner testified that he had

                                             -12-
three jury trials in his case: the first resulted in a mistrial, the second resulted in a hung jury,
and the third resulted in his convictions for aggravated rape and aggravated robbery. Trial
counsel represented the Petitioner in each of the trials and in his two appeals. The Petitioner
testified that he believed trial counsel had been prepared for trial.

        Trial counsel talked to the Petitioner about the evidence against him and about the
defense strategy. The Petitioner testified that the State’s DNA evidence was a key part of the
case against him but he was unsure of how trial counsel intended to defend against it. He
explained, “I mean, I have no doubt they had DNA evidence against me, but I didn’t know
what the defense was going to be to defend against the DNA evidence.” The Petitioner did
not recall speaking to trial counsel about his response to the DNA evidence other than that
trial counsel intended to cross-examine the State’s DNA expert.

        The Petitioner testified that trial counsel did not discuss the possibility of hiring a
DNA expert for the defense. Moreover, the Petitioner was unaware that trial counsel could
request funds to hire such an expert. The Petitioner testified that, had he known funds were
available, he would have insisted on a DNA expert of his own. The Petitioner
acknowledged, however, that trial counsel attacked the DNA evidence during each of his
trials by attacking the chain of evidence. Trial counsel also attacked the eyewitness
testimony concerning the identification of the Petitioner and vigorously cross-examined the
officers in charge of the investigation. He further acknowledged that several of the issues
raised by trial counsel on direct appeal related to the DNA evidence. The Petitioner did not
call a DNA expert to testify on his behalf at the post-conviction hearing.

      At the conclusion of the hearing, the post-conviction court entered a written order
denying relief. This timely appeal followed.

                                          II. Analysis

        In order to prevail upon a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2014); Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). “Evidence is clear and convincing
when there is no serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks
v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). Whether the petitioner has met his
burden of proof is a question of law that this Court reviews de novo. Arroyo v. State, 434
S.W.3d 555, 559 (Tenn. 2014).

        Post-conviction relief cases often present mixed questions of law and fact. See Fields
v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn.

                                               -13-
1999)). We review a trial court’s findings of fact under a de novo standard with a
presumption that those findings are correct unless otherwise proven by a preponderance of
the evidence. Id. (citing Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997)). The trial court’s conclusions of law are reviewed “under a purely de novo
standard, with no presumptions of correctness . . . .” Id. When reviewing the trial court’s
findings of fact, this Court does not reweigh the evidence or “substitute [its] own inferences
for those drawn by the trial court.” Id. at 456. 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 trial judge.” Id. (citing Henley, 960
S.W.2d at 579).

        The right to effective assistance of counsel is safeguarded by the Constitutions of both
the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. art. I, §
9. In order to receive post-conviction relief for ineffective assistance of counsel, a petitioner
must prove two factors: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee cases).
Both factors must be proven in order for the court to grant post-conviction relief. Id.;
Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Additionally,
review of counsel’s 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.” Strickland, 466
U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical
decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that the counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see also
Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong of
the Strickland analysis, the petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (quoting Strickland, 466 U.S. at 694)(internal quotation marks omitted).

        The Petitioner contends that he was denied the effective assistance of counsel based
upon trial counsel’s failure to seek indigent funds for a DNA expert for the defense and, as
such, he is entitled to post-conviction relief. The State responds that the Petitioner did not
present a DNA expert at the post-conviction hearing and that he, therefore, failed to
demonstrate prejudice resulting from trial counsel’s failure to obtain such a witness. We
agree with the State’s assessment. As we have repeatedly cautioned, a post-conviction
petitioner cannot succeed on a claim that “counsel was deficient [for failing to call] a known
witness” unless the petitioner “produce[s] a material witness who (a) could have been found
by a reasonable investigation and (b) would have testified favorably in support of his defense
if called.” Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). “‘As a general
rule, this is the only way the petitioner can establish that . . . the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which enured to the prejudice of the petitioner.’” Pylant v. State, 263 S.W.3d 854, 869
(Tenn. 2008) (quoting Black, 794 S.W.2d at 757). Neither the post-conviction court nor this
Court “can speculate or guess on . . . what a witness’s testimony might have been if
introduced.” Black, 794 S.W.2d at 757. Based upon the Petitioner’s failure to present a
DNA expert at the hearing, we find that the Petitioner is not entitled to post-conviction relief.

                                       III. Conclusion

       For the aforementioned reasons, we affirm the judgment of the post-conviction court.




                                                     _________________________________
                                                     ROBERT L. HOLLOWAY, JR., JUDGE




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