                                                                                                       04/05/2018
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 11, 2017 Session

                   WENDELL GUINN v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                      No. 12-05110     J. Robert Carter, Jr., Judge


                                 No. W2016-02152-CCA-R3-PC


The Petitioner, Wendell Guinn, appeals from the Shelby County Criminal Court’s denial
of his petition for post-conviction relief. The Petitioner contends (1) that his
constitutional rights were violated by prosecutorial misconduct during the jury voir dire
and the State’s closing arguments; (2) that the trial court committed several errors in the
jury instructions; and (3) that he received ineffective assistance from his trial and
appellate counsel.1 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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, J., joined. NORMA MCGEE OGLE, J., concurring in results only.

Valentine Darker, Memphis, Tennessee, for the appellant, Wendell Guinn.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton Bush
and Leslie Fouche, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                              OPINION

                                  FACTUAL BACKGROUND




1
 For the sake of clarity, we have reordered and renumbered the issues from the order they appeared in the
Petitioner’s brief.
                                   I. Procedural History

       In 2012, the Petitioner was indicted on charges of aggravated kidnapping, rape,
aggravated burglary, and domestic assault. State v. Wendell Guinn, No. W2013-01436-
CCA-R3-CD, 2014 WL 3513000, at *1 (Tenn. Crim. App. July 15, 2014), perm. app.
denied (Tenn. Dec. 18, 2014). The Petitioner was tried by a jury in February 2013. The
State dismissed the domestic assault charge during the trial, and the jury acquitted the
Petitioner of the aggravated kidnapping and aggravated burglary charges. Id. The jury
convicted the Petitioner of rape, and the trial court imposed a nine-year sentence. Id.

       This court affirmed the Petitioner’s conviction on direct appeal. Guinn, 2014 WL
351300, at *1. On December 18, 2014, our supreme court declined to review that
decision. On December 18, 2015, the Petitioner, through counsel, filed a timely petition
for post-conviction relief. An amended petition was subsequently filed on the
Petitioner’s behalf.

       The petitions alleged that the trial court erred in its instruction on the applicable
mental element for the rape charge, in its instruction on the aggravated burglary charge,
and in issuing a supplemental jury instruction. The petitions also alleged that the
prosecutor improperly commented on his decision not to testify at trial. Finally, the
petitions alleged trial counsel was ineffective for failing to properly investigate the facts
of the case and for failing to properly address the jury instruction and prosecutorial
misconduct issues. Following an evidentiary hearing, the post-conviction court entered a
written order denying the petition on September 23, 2016.

                                       II. Trial Facts

       The victim testified at trial that she had been involved with the Petitioner in a
lengthy extramarital affair. Guinn, 2014 WL 351300, at *2. The victim further testified
that she had “‘tried to end’” the relationship because the Petitioner would not leave his
wife. Id. According to the victim, the Petitioner repeatedly called her on the morning of
March 19, 2012, to ask her to help him post flyers about some missing property. Id. The
victim testified that she did not initiate the phone calls and that she never invited the
Petitioner to her house that morning. Id.

       According to the victim, the Petitioner then showed up in her driveway and
aggressively came up to her “‘with his hands towards [her].’” Guinn, 2014 WL 351300,
at *2 (alteration in original). The victim told the Petitioner that she did not “‘have time to
wrestle and tussle with’” him, and the Petitioner responded that the victim was “going to
take care of this first.” Id. The victim took this to mean that the Petitioner wanted her
“‘to take care of [his] sexual needs.’” Id. (alteration in original).

                                             -2-
       The victim testified that the Petitioner then “‘backed [her] up into’” a bedroom
inside the house and “‘locked the door.’” Guinn, 2014 WL 351300, at *2-3 (alteration in
original). Once in the bedroom, the victim and the Petitioner began “‘tussling’” and
“‘pushing’” each other. Id. at *3. The Petitioner told the victim that she was going to
give him “‘this p---y today.’” Id. The victim testified that she told the Petitioner that “it
was ‘not going to happen’” because her granddaughter was in the house. Id. According
to the victim, the Petitioner responded that he did not care because all of her
grandchildren “knew he was ‘f--king their grandmamma.’” Id.

        The victim testified that the Petitioner unlocked the door to the bedroom so she
could talk to her granddaughter. Guinn, 2014 WL 351300, at *3. The victim and her
granddaughter then unsuccessfully attempted to “‘get rid of’” the Petitioner. Id. When
the victim returned to the bedroom, the Petitioner “‘slammed the door and locked it’”
telling the victim that she was “‘going to give [him] this p---y today.’” Id. The Petitioner
then “‘started wrestling’” with the victim and trying to take off her clothes. Id. The
Petitioner was able to remove the victim’s underwear and penetrated her vagina with his
fingers despite the victim’s telling him not to do so. Id.

         The victim testified that while the Petitioner attacked her, she screamed for her
granddaughter to call the police. Guinn, 2014 WL 351300, at *3. A short time later,
police officers arrived at the victim’s house and arrested the Petitioner. Id. at *1, 4. At
trial, the officers described the victim as appearing “‘kind of disheveled’” and that she
“seemed distraught and upset.” Id. at *1. The officers found the Petitioner’s “coat,
underwear, and some flyers with the [Petitioner’s] name and phone number on the floor
of the bedroom.” Id.

       At trial, the victim’s granddaughter corroborated the victim’s testimony about
attempting to get the Petitioner to leave and the victim’s screaming. Guinn, 2014 WL
351300, at *1-2. The victim’s granddaughter testified that “it was unusual for the victim
to yell like that,” that the victim “sounded scared,” and that the victim told her that the
Petitioner was “‘trying to rape [her].’” Id. at *2.

        The Petitioner gave a statement to the police that was introduced into evidence at
trial. Guinn, 2014 WL 351300, at *4. In the statement, the Petitioner admitted to
penetrating the victim’s vagina with his fingers. Id. The Petitioner also stated that he
went to the victim’s house “to ‘get her to help [him] distribute some flyers.’” Id.
(alteration in original). However, the Petitioner claimed that the victim had consented to
the digital penetration. Id. The Petitioner also claimed that the victim had “‘called out
for [her granddaughter] previously during sex’” and that the victim was joking when she
told her granddaughter to call the police. Id. (alteration in the original).


                                             -3-
                              III. Post-Conviction Hearing

       Several of the Petitioner’s former coworkers testified that they were aware that the
Petitioner was having an extramarital affair and that a woman would often visit the
Petitioner while he was at work. These visits occurred up to the time of the Petitioner’s
arrest. One of the Petitioner’s coworkers, Erin Kelly, recalled discussing with the
Petitioner “four or five months” before the Petitioner’s arrest the fact that the Petitioner
was considering ending the affair. However, none of the Petitioner’s coworkers ever
spoke to the woman or knew her name.

        Ted Scott, a forensic computer examiner with Verity Digital Forensics, testified
that he was asked to examine an iPhone provided by the Petitioner’s attorney. Mr. Scott
testified that the iPhone was passcode protected and that none of the codes given to him
by the Petitioner worked. Mr. Scott was unable to access the phone or determine to
whom the phone had belonged.

        Assistant District Attorney General Karen Cook testified that she was the lead
prosecutor in the Petitioner’s case. General Cook testified that an iPhone had been seized
during the police investigation. General Cook also testified that she routinely mentions
during jury voir dire that the defendant has the right not to testify and that the defendant
just has to “show up and shut up.” General Cook explained that she does this to ensure
that potential jurors understand that the burden of proof is on the State and that they will
not be biased against the defendant if he chooses not to testify. General Cook also
testified that she used the Petitioner’s perceived arrogance as a theme during her closing
argument.

       Trial counsel testified that the theory of defense at trial was that the victim
consented to the penetration due to the lengthy sexual relationship between the victim
and the Petitioner. Trial counsel explained that he did not look for witnesses to testify
about the Petitioner’s relationship with the victim because their relationship was not in
dispute. Likewise, trial counsel did not think that evidence that the victim was still
seeing the Petitioner around the time of the rape would have been helpful because there
was not “any dispute on whether she would contact” the Petitioner.

       Trial counsel further explained that the trial was focused on the issue of consent
because there was no dispute about the fact that the Petitioner had penetrated the victim’s
vagina with his fingers. To that end, trial counsel admitted that he did not attempt to
examine the iPhone seized by the police or call “character witnesses” at the trial. Trial
counsel explained that there was a risk of discovering unfavorable evidence during a
search of the iPhone and that he did not believe that anything on the iPhone would have
been “crucial” or “helpful” to the Petitioner’s defense theory. Trial counsel testified that
he called “character witnesses” at the sentencing hearing rather than the trial because he
                                            -4-
was afraid of the possible impeachment material that could have been presented if he
called those witnesses at trial.

       With respect to the Petitioner’s decision not to testify, trial counsel testified that
the Petitioner’s statement to the police supported their defense theory. Trial counsel
further testified that using the statement instead of having the Petitioner testify at trial
avoided the danger of opening the door to unflattering information about the Petitioner,
such as issues in other relationships or work disciplinary issues. With respect to the jury
voir dire, trial counsel testified that it was not unusual for prosecutors to refer to a
defendant’s right to remain silent during voir dire. Trial counsel admitted that he did not
notice that the indictment stated that the Petitioner had committed the rape intentionally
while the jury instruction stated the Petitioner acted “either intentionally, knowingly, or
recklessly.”

       Appellate counsel testified that he was a member of the same law firm as trial
counsel and that he consulted with trial counsel about the Petitioner’s case prior to the
appeal. Appellate counsel recalled having a discussion with trial counsel during the jury
deliberations about how the trial court had handled a question from the jury. However,
appellate counsel recalled that he and trial counsel were not “very concerned about” the
procedure the trial court used to answer the question.

        Appellate counsel explained that they “didn’t really have a big problem with the
[supplemental] instruction that was given.” Therefore, appellate counsel did not “put a
lot into that argument” on appeal and “didn’t focus on any of the procedural aspects of
it.” Appellate counsel admitted that the jury returned its verdict a short time after it
received the trial court’s supplemental instruction. However, appellate counsel testified
that, in his experience, it was “not that unusual” for a jury to return a verdict shortly after
receiving a supplemental instruction. Appellate counsel further testified that he did not
believe that the supplemental jury instruction was the reason for the jury’s verdict.
Appellate counsel reiterated that he did not think the supplemental jury instruction was
“that big of an issue in this case.”

       Appellate counsel testified that he did not believe there were any issues that
should have been raised on appeal that were not. Specifically, appellate counsel testified
that he did not think the prosecutor’s statements during the jury voir dire or her use of the
term “arrogant” during closing arguments should have been raised on appeal. Appellate
counsel admitted that he did not think about the fact that the indictment had said the rape
was committed intentionally when he was preparing the appellate brief.

       The Petitioner testified that he told trial counsel that he “had contemplated ending”
his relationship with the victim around the time of the rape and that his wanting to end
the relationship “was very much the basis of what happened.” The Petitioner claimed
                                              -5-
that a few days before the rape, he and the victim had agreed to break up. However, the
Petitioner admitted that there was no mention of his having broken up with the victim in
the statement he gave to the police. The Petitioner claimed that the victim repeatedly
called and sent him text messages asking him to come to her house on the day of the rape.
According to the Petitioner, he eventually agreed to go to the victim’s house and told her
about the flyers for his missing property. The Petitioner claimed that the victim asked
him to bring the flyers with him.

       The Petitioner also claimed that he routinely had sex with the victim while her
children and grandchildren were in the house. According to the Petitioner, the victim had
asked him to install a lock on her bedroom door because her children and grandchildren
had routinely walked in on the two of them having sex. The Petitioner further claimed
that the victim had previously made a joke about calling the police when one of her
grandchildren tried to open the locked bedroom door. The Petitioner testified that he
talked to trial counsel about calling his coworkers as witnesses at trial because “they
knew that [the victim] was around [him] all the time.” The Petitioner also testified that
his phone had been seized by the police and that he told trial counsel that there were text
messages and phone calls from the victim on the phone.

        The Petitioner claimed that he only once discussed testifying at trial with trial
counsel. According to the Petitioner, trial counsel originally said that he would be a good
witness, and he went to trial thinking that he would testify. However, the Petitioner
claimed that trial counsel did not prepare him to testify and that they only talked about
the decision briefly during the trial. According to the Petitioner, co-counsel “got right up
in [his] face” and asked him a question during a break in the trial. The Petitioner claimed
that when he smiled in response to the question, trial counsel told him that he could not
testify because the jury would think he was arrogant.

                          IV. Post-Conviction Court’s Order

        The post-conviction court concluded that the prosecutor’s statements during the
jury voir dire about a defendant’s right to remain silent were “simply a correct statement
of the law” and not a specific reference to the Petitioner because the Petitioner’s decision
whether to testify at trial “had not yet been made” at that point. The post-conviction
court also found that trial and appellate counsel were not ineffective for failing to
challenge the prosecutor’s description of the Petitioner as arrogant during closing
arguments and accredited trial counsel’s testimony that he did not find those statements
to be objectionable.

      The post-conviction court concluded that the trial court did not err when it
provided a supplemental jury instruction in response to a question from the jury. The

                                            -6-
post-conviction court also found that there was no error in the trial court’s jury instruction
that rape could be committed intentionally, knowingly, or recklessly.

       The post-conviction court also concluded that trial counsel was not ineffective for
failing to call the Petitioner’s coworkers as witnesses at trial and failing to search the
Petitioner’s cell phone. The post-conviction court found that this evidence would have
“failed to add anything of value to the defense.” The post-conviction court further
concluded, as a general matter, that the Petitioner had failed to prove that trial and
appellate counsel were deficient in their representation of the Petitioner.

                                        ANALYSIS

                         I. Post-Conviction 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.
However, absent limited exceptions not applicable to this case, “[a] ground for relief is
waived if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the
ground could have been presented.” Tenn. Code Ann. § 40-30-106(g).

       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 v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). On appeal, we are bound by the post-conviction 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 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.
However, we review the post-conviction court’s application of the law to its factual
findings de novo with no presumption of correctness. Id. at 457.

                              II. Prosecutorial Misconduct

        The Petitioner contends that his constitutional rights were violated by
prosecutorial misconduct during the jury voir dire and the State’s closing arguments. The
Petitioner argues that the prosecutor improperly commented on his decision not to testify
at trial when she told the potential jury members that the Petitioner had the right to
remain silent, that “all he has to do is show up and shut up,” and that the Petitioner and
his attorneys did not “have to say a word.” The Petitioner also argues that the prosecutor
improperly commented on the Petitioner’s decision not to testify when she stated during
                                             -7-
her closing argument that the “only evidence” that the victim consented to the penetration
was the Petitioner’s statement. The Petitioner further argues that the repeated
characterization of the Petitioner as “arrogant” during the State’s closing argument was
misconduct. The State responds that none of these statements rose to the level of
prosecutorial misconduct.

       At the outset, we note that the Petitioner has waived these claims of prosecutorial
misconduct by not raising them in his direct appeal. See Tenn. Code Ann. §
40-30-106(g). However, the issues in this section and the next are at times discussed in
the brief as if they stand alone and at other times as if they are being raised in the context
of an ineffective assistance of counsel claim. We will address these issues on the merits,
waiver notwithstanding, because they will later be discussed in addressing the
Petitioner’s claims of ineffective assistance of trial and appellate counsel.

                              A. Jury Voir Dire Comments

        The purpose of jury voir dire is to advise the attorneys of the potential jurors’
qualifications, interests, and biases. State v. Onidas, 635 S.W.2d 516, 517 (Tenn. 1982)
(quoting Smith v. State, 327 S.W.2d 308, 318 (Tenn. 1959)). To that end, the attorneys
may ask jurors questions designed to “indicate [the potential jurors’] freedom from bias.”
Id. (internal quotation marks omitted) (quoting Smith, 327 S.W.2d at 318).

       The prosecutor’s condescending choice of words, she was inquiring if any of the
potential jurors would be biased against the Petitioner if he did not testify at trial.
Furthermore, our review of the record revealed that the trial court properly instructed the
jury on the burden of proof and the Petitioner’s right not to testify at trial. See State v.
Justin E. Kite, No. 03C01-9112-CR-380, 1992 WL 124455, at *2 (Tenn. Crim. App. June
10, 1992) (holding that the prosecutor’s comment that the defendant would get “an
opportunity to put on whatever evidence he might want to” was not a comment upon his
right not to testify and, even if it were, was cured by the trial court’s instruction on the
defendant’s right not to testify). Accordingly, we conclude that this issue is without
merit.

                              B. “Only Evidence” Comment

       The purpose of closing arguments “is to sharpen and to clarify the issues,” and this
is accomplished “by enabling the opposing lawyers to present their theory of the case and
to point out the strengths and weaknesses in the evidence to the jury.” State v. Banks,
271 S.W.3d 90, 130 (Tenn. 2008). However, direct comment upon or indirect reference
to “a defendant’s exercise of the state and federal constitutional right not to testify should
be considered off limits to any conscientious prosecutor.” State v. Jackson, 444 S.W.3d
554, 587, 590 (Tenn. 2014). Here, the prosecutor stated that the victim “told [the jury]
                                             -8-
she said no” and that “the only evidence that was put in was the [Petitioner’s] statement
that indicates that maybe [he] thought that there was a yes.”

       Based upon our review of the record, we do not believe that the prosecutor’s
manifest intent was to comment on the Petitioner’s right not to testify or that the remark
“was of such a character that the jury would necessarily have taken it to be a comment on
the [Petitioner’s] failure to testify.” Jackson, 444 S.W.3d at 588. The prosecutor was not
asserting the absence of contradicting evidence that only the Petitioner could provide.
See State v. Colvett, 481 S.W.3d 172, 208 (Tenn. Crim. App. 2014). Rather, General
Cook was comparing the strengths of the State’s evidence against the weaknesses in the
Petitioner’s statement. Accordingly, we conclude that this issue is without merit.

                                      C. “Arrogant” Comments

        Prosecutors cannot use epitaphs to characterize a defendant. State v. Thomas, 158
S.W.3d 361, 414 (Tenn. 2005). However, comments on a defendant’s demeanor that do
not otherwise manipulate or misstate the evidence or implicate other rights of the
defendant are not improper. State v. Hawkins, 519 S.W.3d 1, 49 (Tenn. 2017) (quoting
Thomas, 158 S.W.3d at 414). Here, the police officer who took the Petitioner’s statement
characterized the Petitioner as being “arrogant” while he gave his statement. The
prosecutor referred to the Petitioner as arrogant during closing arguments, especially
during her rebuttal argument. Based upon our review of the record, we do not believe
that this argument was improper. See Hawkins, 519 S.W.3d at 49 n.16 (concluding that
the prosecutor’s referring to the defendant as “mean” was a “strong but fair comment
based on the proof” and not an improper argument).

                                         III. Jury Instructions

       The Petitioner contends that the trial court committed several errors in the jury
instructions. The Petitioner argues that the trial court erred when it issued a supplemental
instruction in response to a question from the jury without adding that the jury should not
place undue emphasis on the supplemental instruction. The Petitioner also argues that the
trial court erred by instructing the jury that the rape could have been committed
intentionally, knowingly, or recklessly when the indictment specifically alleged that the
rape had been intentionally committed. The Petitioner further argues that the trial court
erred in instructing the jury on aggravated burglary because that instruction stated that the
jury had to find that the Petitioner entered the victim’s home with the intent to commit an
assault despite the fact that the domestic assault charge had been dismissed.2 The State

2
  This issue is listed as “Denial of a Judgment of Acquittal on Aggravated Burglary” in the Petitioner’s
brief, and the Petitioner also references the fact that assault was listed as a lesser-included offense of rape
in the jury instructions.
                                                     -9-
responds that there was no error in the trial court’s jury instructions. We will address
these issues as we did the prosecutorial misconduct issues wavier notwithstanding.

                               A. Supplemental Instruction

       On direct appeal, a panel of this court noted that the better practice “for a trial
court responding to a jury question is to ‘bring the jurors back into open court, read the
supplemental instruction, . . . along with a supplemental instruction emphasizing that the
jury should not place undue emphasis on the supplemental instruction,’” but that the trial
court had “simply sent a note back to the jury with its supplemental instruction.” Guinn,
2014 WL 3513000, at *8 (alteration in original). Absent this procedural lapse, the panel
found no error with the trial court’s supplemental instruction. Id. The Petitioner now
argues that the failure of the trial court to instruct the jury not to place undue emphasis on
the supplemental instruction “triggered” the jury’s verdict.

        However, this court has previously held that the failure to admonish the jury not to
place undue emphasis on a supplemental instruction was not reversible error when the
trial court’s original instructions to the jury contained an instruction that the jury should
not place any importance on the order in which the instructions were given or single out
an instruction as more important than the others. State v. Chance, 778 S.W.2d 457,
461-62 (Tenn. Crim. App. 1989). The trial court gave such an instruction to the jury in
this case. Accordingly, we conclude that this issue is without merit.

                              B. Applicable Mental Element

        The Petitioner contends that because he was indicted for having intentionally
committed the rape, the jury should not have been charged that the offense could have
been committed knowingly or recklessly. However, “in the hierarchy established by the
legislature, ‘recklessness’ is a lesser level of mental state that is embraced by both
‘intentional’ and ‘knowing.’” State v. Crowe, 914 S.W.2d 933, 937 (Tenn. Crim. App.
1995). This means that the State “cannot prove that an offense was committed
[‘intentionally’] without proving that it was committed ‘recklessly.’” Id. When an
indictment charges that a crime has been committed intentionally “the defendant is on
notice that [‘knowing’ and] ‘recklessness’ [are] contained within the statutory definition.”
Id. As such, “a jury instruction containing the mental element[s] of [‘knowing’ and]
‘reckless’ is certainly not erroneous” when a defendant is charged with an intentional
offense. Id. Accordingly, we conclude that this issue is without merit.

                          C. Aggravated Burglary Instruction

       The Petitioner argues that the trial court erred in instructing the jury on aggravated
burglary because that instruction stated that the jury had to find that the Petitioner entered
                                            -10-
the victim’s home with the intent to commit an assault despite the fact that the domestic
assault charge had been dismissed. Any challenge to the trial court’s aggravated burglary
instruction is moot as the Petitioner was acquitted of that offense. See State v. Rodgers,
235 S.W.3d 92, 97 (Tenn. 2007) (discussing the doctrine of mootness). The Petitioner’s
brief also argues that the inclusion of assault as a lesser-included offense of rape in the
jury instructions violated his constitutional protections against double jeopardy.
However, the conduct at issue for the rape charge, the penetration of the victim’s vagina
by the Petitioner, was separate from the conduct at issue in the domestic assault charge,
the “wrestling” with the victim that preceded the rape. Accordingly, we conclude that
this issue is devoid of merit.

               IV. Ineffective Assistance of Trial and Appellate Counsel

        The Petitioner contends that he received ineffective assistance from his trial and
appellate counsel. The Petitioner argues that trial counsel failed to properly investigate
his relationship with the victim by failing to interview his coworkers and failing to search
his cell phone. The Petitioner also argues that trial and appellate counsel were ineffective
in their handling of the prosecutorial misconduct and jury instruction issues discussed
above. The State responds that the Petitioner failed to establish that trial and appellate
counsel were deficient in their representation of the Petitioner.

       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). In reviewing a trial counsel’s
conduct, we make every effort 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.’” Felts v. State, 354 S.W.3d 266, 277
(Tenn. 2011) (quoting Strickland, 466 U.S. at 689).

       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. “The fact that a
particular strategy or tactical decision failed does not by itself establish deficiency.”
Felts, 354 S.W.3d at 277 (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
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. “Because a petitioner must establish both prongs of the test,
                                            -11-
a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief
on the ineffective assistance claim.” Goad, 938 S.W.2d at 370. 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).

        In determining whether appellate counsel’s failure to raise an issue on appeal
constitutes ineffective assistance of counsel, our supreme court has held that “unless the
omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s
failure to raise the issue on appeal. When an omitted issue is without merit, the petitioner
cannot prevail on an ineffective assistance of counsel claim.” Carpenter v. State, 126
S.W.3d 879, 887-88 (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993)).
“Generally, the determination of which issues to present on appeal is a matter which
addresses itself to the professional judgment and sound discretion of appellate counsel”
as these are “tactical and strategic choices,” which should not be second-guessed.
Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993).

       There was no dispute that the Petitioner and the victim had been engaged in a
lengthy relationship prior to the rape, and there was no dispute that the Petitioner digitally
penetrated the victim. The sole issue at trial was whether the victim had consented to the
penetration. None of the witnesses presented at the post-conviction hearing were present
on the day of the rape. In fact, none of the witnesses had ever met the victim or knew her
name. The witnesses testified that the victim frequently visited the Petitioner at his
workplace, and one of them testified that the Petitioner had discussed ending the
relationship with the victim.

       This evidence had little to no relevance on the issue of consent, especially in light
of the fact that the victim’s testimony was corroborated by her granddaughter’s
testimony, that flyers with the Petitioner’s name and phone number were found in the
victim’s bedroom, and that the Petitioner made no mention of having broken up with the
victim in his statement to the police. Likewise, the issue of whether the victim or the
Petitioner had called the other first that day had little, if any, relevance as to the issue of
consent. Trial counsel testified that he was afraid of exposing the Petitioner to
unflattering or inculpatory evidence if he searched the Petitioner’s cell phone or called
“character witnesses” at trial. Accordingly, we conclude that trial counsel was not
deficient for failing to investigate this evidence or utilize it at trial.

       With respect to the Petitioner’s remaining claims of ineffective assistance of trial
and appellate counsel, having concluded that the Petitioner’s prosecutorial misconduct
and jury instruction issues were without merit, we now conclude that trial and appellate
counsel were not deficient in their handling of those issues. Accordingly, we affirm the
post-conviction court’s order denying the Petitioner’s petition for post-conviction relief.

                                             -12-
                                  CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.



                                               _________________________________
                                               D. KELLY THOMAS, JR., JUDGE




                                        -13-
