         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 16, 2014

                  STATE OF TENNESSEE v. JOSEPH NEWTON

                 Appeal from the Criminal Court for Davidson County
                     No. 2010D2957     Seth W. Norman, Judge




                 No. M2014-00603-CCA-R3-CD             - Filed April 2, 2015



The defendant, Joseph Newton, was convicted of two counts of rape, Class B felonies, which
the trial court merged. He received an effective eight-year sentence. On this direct appeal,
he raises the sole issue of ineffective assistance of counsel. He argues that trial counsel was
ineffective for: (1) failing to pursue a reasonable defense and failing to provide assistance;
(2) failing to fulfil a promise made in the opening statement that the defendant would testify;
and (3) for statements made during closing arguments. He also contends that the cumulative
effect of trial counsel’s errors operated so as to deprive him of his right to receive a fair trial.
After thoroughly reviewing the record, the briefs of the parties, and the applicable law, we
affirm the judgment of the criminal court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J. and R OBERT W. W EDEMEYER, J., joined.

Stacey Marie Angello, Hermitage, Tennessee, for the appellant, Joseph Newton.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Glenn Funk, District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                           OPINION
                       FACTS AND PROCEDURAL HISTORY

       The victim testified that on November 17, 2009, she attended a work-related dinner,
where she consumed several alcoholic drinks. She subsequently drove her vehicle to several
different bars and continued to consume alcohol. The last bar that she visited was Broadway
Brewhouse, located at the corner of 19th Avenue and Broadway in Nashville. When the bar
closed at 3:00 a.m., several bar employees and the victim mutually agreed that the victim
should depart in a taxi.

        Douglas Tribble was working as a barback at Broadway Brewhouse and remembered
having a conversation with the victim. Mr. Tribble became concerned that the victim may
have consumed too much alcohol, and he spoke with his manager about placing her in a taxi.
Mr. Tribble explained to the victim that he did not believe it was a good idea for her to
operate her vehicle, and the victim agreed. Mr. Tribble exited the bar with the victim to
assist her in hailing a cab. He recalled that he flagged down a white Allied taxi that was
operated by a black male. He could not see the driver’s face in detail because it was dark and
the taxi was across the street, but he made a notation that the taxi’s number was either “70,
71, or 77.”

       Mr. Tribble testified that it was his habit always to note the number of a cab if he
placed a person into the cab. He began this practice after an incident that occurred many
years earlier with a co-worker. Mr. Tribble placed his co-worker in a cab and learned the
next day that the driver had assaulted the co-worker, stolen her money, “and then left her on
the side of the road for dead.” After the incident, Mr. Tribble promised himself “that if
anytime [he] ever put somebody in a cab, [he] would always remember the number of the
cab.”

       When the victim entered the taxi, she informed the driver that she wished to go to
“Belmont off of 18th Avenue.” The taxi started in that direction, but when the victim asked
the driver to turn left on Magnolia, the cab continued straight instead of turning. Initially,
the victim believed that the driver had simply missed the turn and would turn around to take
her to her destination. However, the driver turned to her and told her to “shut up.”

       After continuing to drive, the driver “whipped into a cul-de-sac.” He climbed into the
backseat of the taxi and forced himself on the victim. He pulled down the victim’s pants and
underwear and penetrated her vagina with his penis. The victim did not consent to this
action, and she was fearful while it was happening. The victim believed that the assault
lasted “maybe 10 minutes or 15 minutes, five minutes” but stated that “[i]t felt like two
hours[.]”


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       The defendant returned to the driver’s seat of the taxi after penetrating the victim. The
victim immediately exited the taxi, running “as fast as [her] legs would take [her].” She
purposefully left the door of the taxi open to slow the driver down, in case he attempted to
pursue her. The victim ran into a well-lit area of “an apartment or condo community” and
telephoned police.

        Officer Paul Goebel of the Metropolitan Nashville Police Department responded to
the victim’s call. He testified that he arrived at the apartment complex around 4:00 a.m. and
that the victim informed him that she had been attacked a short distance from the apartment
complex. Officer Goebel noted that the victim appeared to be intoxicated but stated that she
was able to articulate what had occurred. He testified that the victim never attempted to
conceal the fact that she was intoxicated. The victim told him that a black male between the
ages of twenty-seven and thirty-two years old attacked her. After speaking with the victim
for a few moments, Officer Goebel transported her to General Hospital, where a nurse
practitioner performed a “Medical/Legal Examination” and a rape kit.

        Connie Lynn Barrow was the nurse practitioner who was on call for the Sexual
Assault/Victim Response Team when the victim came to General Hospital. She testified that
as part of her duties, she took the medical forensic health history of the victim, performed a
“head to toe physical assessment,” examined the victim for trauma, and collected any
evidence that she “deem[ed] to be appropriate.” Ms. Barrow observed a small, “slightly
purple” bruise on the victim’s right breast and a “small reddened abrasion” on the victim’s
right knee. She asked the victim if her assailant had kissed her anywhere, and the victim
responded that he may have attempted to kiss her on her breast and mouth. Ms. Barrow
administered swabs to the victim’s mouth and face in order to detect any potential saliva left
by the attacker. She performed a swab of the outside and inside of the victim’s vagina to
check for semen, along with a cervical swab of her vagina and a swab around her anus. Ms.
Barrow also performed a “cervical culture checking” for gonorrhea, and she treated the
victim for gonorrhea.

       Detective Robert Carrigan, a Metropolitan Nashville police officer, worked in the Sex
Crimes Division. He testified that he arrived at the hospital after the victim was transported
and that he spoke with her before Ms. Barrow conducted her examination. He observed that
the victim “appeared extremely intoxicated” and had trouble remaining awake. Detective
Carrigan noted that “[i]t was just a difficult time for an interview.” In this first interview,
the victim described her assailant as a black male with medium skin tone. In a subsequent
interview several days later, the victim described her attacker as a “[l]ight skinned male
black.” The only variation in the two interviews of the description of her attacker was his
skin tone. He spoke with her several days later, when she was far more “lucid.”



                                               3
       Detective Carrigan testified that the swabs taken from the victim were sent to the
Tennessee Bureau of Investigation (TBI) crime lab for analysis. Semen was discovered on
the vaginal and peri-anal swabs, but the DNA profile did not reveal a match with anyone
currently in the TBI system. After speaking with the manager on duty at Broadway
Brewhouse the evening of the incident and with Mr. Tribble, Detective Carrigan began to
develop the drivers of Allied taxi cabs 70, 71, and 77 as potential suspects. The defendant
was the driver of cab number 70. Detective Carrigan spoke with all three drivers, and all
three agreed to provide a consensual DNA swab. When Detective Carrigan showed the
defendant a photograph of the victim, he denied having ever seen, met, picked up, or
provided a ride to the victim. He also denied ever having a sexual relationship with anyone
inside of his taxi.

        Detective Carrigan sent the DNA swabs of the three drivers to the TBI laboratory, and
testing revealed a positive match between the semen found in the swabs taken from the
victim and the defendant’s DNA profile. Several days after learning of this match, Detective
Carrigan showed the victim a photograph lineup that included a photograph of the defendant.
He had shown the victim several prior lineups of Allied taxi cab drivers, but the victim did
not select any of the men in the photographs as her attacker. After viewing the lineup with
the defendant’s photograph, the victim selected that photograph, stating that she was “70%
sure” that it was a photograph of her attacker. She clarified that seventy percent sure meant
“that [she] was pretty darn sure.”

       Special Agent Bradley Everett worked for the TBI Crime Laboratory as a special
agent forensic scientist and DNA technical leader for the TBI. After receiving the
defendant’s DNA swab, Special Agent Everett found that the defendant’s DNA profile
matched that of the sperm found in the swabs taken from the victim. He testified that the
probability of an individual other than the defendant having that DNA profile was greater
than the world population. He further opined that “it would be scientifically unreasonable to
assume” that the DNA profile did not come from the defendant.

         The defense did not put on any proof. Although trial counsel informed the jury in his
opening statement that the defendant would testify, the defendant did not do so. Trial
counsel began his closing argument by stating that he “would submit that in the absence of
DNA in this case, this case would be a loser.” He further told the jury, “I told you in opening
statements that [the defendant] was going to testify. Typically in law school they tell you not
to tell the jury what they can expect to hear, but this was a [tactical] decision so if you’re
going to blame anybody blame me, just don’t hold it against [the defendant.]” Trial counsel
also stated, “This is an identity case. There was a rape and there was no consent, that is not
even an issue. There was a rape but the issue is identity.”



                                              4
       At the conclusion of the proof, the jury found the defendant guilty of two counts of
rape. The trial court merged both counts and sentenced the defendant to an eight-year
sentence. At the motion for new trial hearing, the defendant raised only the issue of
ineffective assistance of counsel, and trial counsel testified.

       Trial counsel testified that, prior to trial, he was aware that the State had DNA
evidence identifying the defendant as the perpetrator of the rape of the victim. He stated that
he hired an expert to attempt to refute the testimony of the State’s DNA expert and that his
expert was unable to provide an opinion that would refute that of the State. He said that he
had several discussions prior to trial about whether the defendant would testify at trial. Trial
counsel informed the defendant that if he testified at trial, a consent defense would be the
only plausible defense to the charge, in light of the State’s DNA evidence. Trial counsel
believed that if the defendant were to testify that he did not commit the crime, the testimony
would have been unhelpful because it would have been inconsistent with the State’s DNA
findings.

         Trial counsel met with the defendant “in person at least eight times” and spoke with
him numerous times on the telephone. Trial counsel testified that the “defense shifted
weekly from not there, to it was consensual, to even she attacked him.” A week before the
trial, after speaking with the defendant, trial counsel had established that their trial strategy
would be to assert a defense of consent. Trial counsel prepared a potential cross-examination
of the victim to use when employing the consent defense. However, on the day of trial, the
defense “shifted to I didn’t do it again.” The defendant wanted trial counsel to argue that he
was not at the scene of the crime, despite the DNA evidence, and he informed trial counsel
that he wished to testify.

        When trial counsel told the jury that the defendant would testify, he did so after the
defendant informed him that he would testify. Trial counsel anticipated that the defendant
would testify that he was not present at the scene of the crime and did not rape the victim.
He agreed that such testimony would be inconsistent with the scientific proof offered in the
case. Trial counsel stated that he attempted to maintain a defense that was consistent with
his client’s desires but that “every case [was] different.” Trial counsel said that on the day
of the trial, the defendant “insisted that he did not do it, and -- but he still wanted to testify[.]”
As a result, trial counsel’s strategy was to abandon the consent defense and adopt the theory
that the defendant was not the person who raped the victim.

       Trial counsel testified that he informed the defendant of his belief that the strategy of
claiming that he did not rape the victim “was not the best strategy to pursue[.]” The
defendant disagreed, and trial counsel continued with the defense of mistaken identity
because the defendant would not adopt a defense of consent.

                                                  5
       Trial counsel testified that his biggest obstacle as counsel was “getting [the defendant]
to agree on any defense consistently[.]” He stated that the defendant decided not to take the
stand after hearing the State’s proof and that trial counsel believed this was a smart decision.
Trial counsel agreed that if the defendant testified that the encounter was consensual, it
would have been inconsistent with the statement that he gave to Detective Carrigan. He
further agreed that the proof showed that the defendant did not take the victim where she
wished to go and that she jumped out of the taxi cab in a deserted area. He confirmed that
the victim’s behavior was not consistent with the behavior of a person who had engaged in
consensual sex. Trial counsel testified that because the victim “was such a strong witness[,]”
he was unsure how successful it would have been to raise a defense of consent.

       During closing arguments, the trial court asked defense counsel the following:

       Are you creating a new defense for every defendant that comes down the line
       because he tells his lawyer I insist that you get up and tell this jury that I’m
       going to testify, and then he says I’m not going to testify so I’m entitled to a
       new trial because my lawyer said that I was going to testify and I didn’t? Now
       what is to prevent every defendant that ever walks into this courtroom from
       doing that?

....

       If your client tells you I want you to tell that jury that I’m going to testify
       because I am going to testify, are you telling me that you wouldn’t stand up
       here and tell that?

....

       You are not going to get up and do what your client asked you to do?

....

       Then you are ineffective, are you not?

The trial court denied the motion for new trial, finding that “everything that [trial counsel]
did was effective in this matter.” The defendant filed a timely notice of appeal, and we
proceed to consider his claims.




                                               6
                                         ANALYSIS

                            I. Ineffective Assistance of Counsel

       This court has repeatedly stated that raising a claim of ineffective assistance of
counsel on direct appeal is a practice “fraught with peril.” State v. Blackmon, 78 S.W.3d
322, 328 (Tenn. Crim. App. 2001). We review claims of ineffective assistance of counsel
raised on direct appeal under the same standard as those raised in post-conviction
proceedings. State v. Burns, 6 S.W.3d 453, 461 n.5 (Tenn. 1999). The defendant bears the
burden of proving the allegations of fact giving rise to the claim by clear and convincing
evidence. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009). “‘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)).

        Both the Sixth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution guarantee the right to counsel. This right affords an individual
representation that is “within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is ineffective when
“counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984).

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
prove by clear and convincing evidence that: (1) counsel’s performance was deficient; and
(2) the deficiency prejudiced the petitioner to the degree that the petitioner did not receive
a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the
test by showing that counsel’s representation fell below an objective standard of
reasonableness; that is, “the services rendered or the advice given must have been below ‘the
range of competence demanded of attorneys in criminal cases.’” Grindstaff, 297 S.W.3d at
216 (quoting Baxter, 523 S.W.2d at 936); see Strickland, 466 U.S. at 687. The petitioner
must demonstrate that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. Courts evaluating the performance of an attorney “should indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In order to fairly assess counsel’s conduct,
every effort must 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. “The fact that a particular strategy or
tactic failed or hurt the defense, does not, standing alone, establish unreasonable

                                               7
representation.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

       Prejudice requires the petitioner to show “that there is 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. If the petitioner fails to establish either
deficiency or prejudice, post-conviction relief is not appropriate, and this court need not
address both components if the petitioner makes an insufficient showing as to one
component. Grindstaff, 297 S.W.3d at 216 (citing Goad, 938 S.W.2d at 370).

                       A. Failure to Pursue a Reasonable Defense

        The defendant argues that trial counsel was ineffective because he failed to present
a reasonable defense and failed “to provide assistance.” He contends that because trial
counsel knew that the defendant’s DNA matched the sperm taken from the victim and
because there were only minor inconsistencies in the victim’s description of her attacker that
a defense of consent would have been more appropriate. He also contends that because he
was an immigrant to the United States, he was unqualified to make strategic decisions
relating to his defense.

        Trial counsel is “essentially bound” by a competent defendant’s knowing and
voluntary selection of a particular defense strategy. Zagorski v. State, 983 S.W.2d 654, 658-
59 (Tenn. 1998). In Zagorski, our supreme court addressed the issue of “whether a lawyer
should follow the lawful demands of his client when those demands may cause detriment to
the client’s case.” Id. at 658. In concluding that trial counsel were not ineffective in
following the petitioner’s request that they not present mitigating evidence at his capital
sentencing hearing, the court, citing Tennessee Supreme Court Rule 8, stated that
“[g]enerally, the client has exclusive authority to make decisions about his or her case, which
are binding upon the lawyer if made within the framework of the law.” Id. at 657, 658. The
role of counsel in a criminal case “is to assist the defendant in making a defense and to
represent the defendant before the court.” Id. at 658. This assistance insures “that the
defendant is fully advised of his or her rights, the available defense strategies, and the
consequences of pursuing one strategy over another.” Id. While trial counsel may warn the
defendant about consequences that may stem from pursuing an ill-advised legal strategy, “the
right to a defense belongs to the defendant.” Id.; see State v. Terry Norris, No. W2000-
00707-CCA-R3-CD, 2002 WL 1042184, at *14 (Tenn. Crim. App. May 21, 2002)
(concluding that while trial counsel was obligated to defer to the defendant’s desire to pursue
a strategy of self-defense rather than voluntary manslaughter, any error in adopting a
voluntary manslaughter defense did not result in prejudice). “If the defendant is prejudiced
in some respect by his own decision, he should not later be heard to complain about those

                                              8
consequences by challenging the conduct of his counsel.” Zagorski, 983 S.W.2d at 659.
This is precisely what the defendant attempts to do in the case sub judice.

        Prior to trial, trial counsel and the defendant agreed to adopt a defense of consent, and
trial counsel prepared an appropriate cross-examination for the victim to support this defense.
However, on the day of the trial, the defendant changed his mind and “insisted” that he did
not commit the crime and indicated to trial counsel that he would not be waiving his right to
testify. The fact that the defendant’s strategy of choice resulted in a verdict to his detriment
does not then render trial counsel ineffective. Because the right to effective assistance of
counsel does not mean that a defendant cedes all participation in his defense to the discretion
of trial counsel, a defendant has a right to choose a defense strategy and to reject counsel’s
advice regarding adverse consequences of that strategy. Trial counsel informed the
defendant of the legal strategies at his disposal and the disadvantages of adopting an identity
defense in light of the overwhelming DNA evidence against him. Despite trial counsel’s
warnings that a consent defense was the only “plausible defense” in light of the DNA
evidence against the defendant, the defendant made the choice to employ a defense of
mistaken identity, and he indicated that he would testify that he had nothing to do with the
crime. As a result, trial counsel made a strategic and reasonable decision to craft his trial
strategy around the defense of mistaken identity in accordance with the defendant’s wishes.
The defendant cites to his status as an immigrant, but he has presented no evidence that he
was incompetent to assist in his own defense. We conclude that the defendant has not met
his burden of proving that trial counsel performed deficiently. The defendant is not entitled
to relief as to this claim.

                            B. Promise for Defendant to Testify

        The defendant argues that trial counsel was ineffective for failing to fulfil his promise
in opening statements that the defendant would testify. Specifically, he contends that
because trial counsel was aware that his testimony would be inconsistent with the DNA
results and aware that the defendant frequently changed his mind in regard to trial strategy,
trial counsel should not have promised the jury that the defendant would testify and instead
waived his opening statement until the conclusion of the State’s proof.

       The defendant cites State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991)
for the proposition that trial counsel was ineffective. In Zimmerman, the defendant was
charged with second degree murder, and defense counsel planned to employ a theory of self-
defense based upon “battered wife syndrome.” Id. at 221-22. In opening statements, trial
counsel announced that the jury would hear testimony from the defendant and from a
psychologist regarding battered wife syndrome. Id. However, despite there being “no
surprises in the presentation of the state’s case,” trial counsel advised the defendant not to

                                               9
testify and did not present the testimony of the psychologist. Id. at 224. In concluding that
trial counsel provided ineffective assistance, this court reasoned that “there appear[ed] to
have been no basis for the sudden change in strategy.” Id. at 226.

         Here, trial counsel testified that he attempted to present a defense that was “consistent
with [his] client’s wishes.” Unlike Zimmerman, there was a basis for the change in trial
strategy in this case: the defendant himself. Prior to trial, trial counsel had discussions with
the defendant about whether he would testify. Trial counsel testified that on the day of the
trial, although the defendant changed his mind regarding the consent defense and “insisted”
that he did not commit the crime, he informed trial counsel that he still wished to testify.
Despite trial counsel’s warnings that testifying that he was not at the scene and did not
commit the crime was not prudent in light of the State’s DNA evidence, the defendant still
wished to adopt that trial strategy. When trial counsel made his opening statement, he did
so believing that the defendant would testify because the defendant informed trial counsel
that he would testify. Trial counsel made a decision to match his theory of defense to the
testimony that the defendant indicated he was preparing to give at trial. Trial counsel further
testified that after hearing the State’s proof, the defendant decided not to testify. Trial
counsel was the only witness at the motion for new trial hearing, and his testimony was
uncontroverted. In finding that trial counsel performed effectively, the trial court implicitly
credited the testimony of trial counsel that the defendant made the decision not to testify.
Nothing in the record preponderates against the findings of the trial court, and we conclude
that trial counsel did not perform deficiently.

        Further, even if trial counsel performed deficiently, the defendant has failed to prove
that he suffered prejudice as a result. The evidence presented in this case was overwhelming.
Mr. Tribble identified the number of the cab that the victim entered as being either 70, 71,
or 77. He provided these numbers to Detective Carrigan, who discovered that the defendant
operated taxi cab number 70. The defendant voluntarily provided a DNA sample, which was
analyzed by the TBI. Special Agent Everett found that the defendant’s DNA profile matched
the DNA found on the victim. He stated that the probability of the DNA found on the victim
belonging to someone other than the defendant was greater than the world population and
that it would be “scientifically unreasonable” to assume that the DNA did not belong to the
defendant. The victim also identified the defendant as her attacker before learning of the
DNA match. The defendant has not demonstrated that any error by trial counsel in his
opening statement likely affected the verdict to his detriment. The defendant is not entitled
to any relief as to this claim.

                                    C. Closing Argument

       In his brief, the defendant contends that the following statements from closing

                                               10
argument were unreasonable: “I would submit that in the absence of DNA, this case would
have been a loser”; “There was a rape”; and “There was no consent, that is not even an
issue.” The brief contains no argument or citation to authorities explaining why these
statements constituted ineffective assistance of counsel. Therefore, this issue is waived, and
the defendant is not entitled to any relief. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which
are not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived.”).

                                   II. Cumulative Error

       The defendant contends that the cumulative effect of trial counsel’s errors prejudiced
him to the degree that his right to a fair trial was violated. Both the United States and
Tennessee Constitutions protect a defendant’s right to a fair trial, but they do not guarantee
a perfect trial. Delaware v. Van Ardsall, 475 U.S. 673, 681 (1986); State v. Gilliland, 22
S.W.3d 266, 273 (Tenn. 2000). To consider a claim of cumulative error, “there must have
been more than one actual error committed in the trial proceedings.” State v. Hester, 324
S.W.3d 1, 77 (Tenn. 2010) (citations omitted). The defendant has failed to establish that
more than one error was committed during his trial. Therefore, he is not entitled to relief
under the cumulative error doctrine.




                                      CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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