        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 24, 2013

             ROBIN LYNN COOPER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                     No. 96556PC      Steven W. Sword, Judge



               No. E2013-00693-CCA-R3-PC - Filed November 6, 2013


A Knox County jury convicted the Petitioner, Robin Lynn Cooper, of one count of
attempted second degree murder, one count of rape, one count of aggravated rape, one
count of especially aggravated kidnapping, and three counts of aggravated kidnapping.
On direct appeal, this Court affirmed the Petitioner’s convictions. State v. Cooper, No.
E2009-00291-CCA-R3-CD, 2010 WL 2490768, at *1 (Tenn. Crim. App., at Knoxville,
June 21, 2010), perm. app. denied (Tenn. Oct. 20, 2010). The Petitioner filed a petition
for post-conviction relief, asserting that he had received the ineffective assistance of
counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, the
Petitioner contends that the post-conviction court erred when it dismissed his petition.
After a thorough review of the record and applicable law, we affirm the post-conviction
court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and N ORMA M CG EE O GLE, JJ., joined.

Michael Cabage (at hearing) and J. Liddell Kirk (on appeal), Knoxville, Tennessee, for
the appellant, Robin Lynn Cooper.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts
                                        A. Trial

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      On direct appeal, our Court summarized the underlying facts of the case as
follows:

             At trial, the victim, Tammy Moody, testified that the [Petitioner]
      approached her and solicited her for prostitution. The victim testified that
      she agreed to perform oral sex on the [Petitioner] in exchange for fifty
      dollars and that the [Petitioner] drove the victim to his home, locking the
      door from the inside with a key. The victim testified that the [Petitioner’s]
      demeanor changed when she asked for the money and that he told her, “[I]f
      you want to live, you’ll do what I say.”

             The victim testified that the [Petitioner] took her to a bedroom where
      a stripped bed was laid on top of a tarp and a pornographic video was
      playing on the television. The [Petitioner] forced her to remove her clothes
      and then grabbed her by the throat. The victim testified that she knew she
      had to “do anything and everything” to stay alive. The [Petitioner] then
      forced his penis into her mouth and held the victim’s head. He forced
      himself down her throat to the point that she was unable to breathe, causing
      her to vomit on the [Petitioner].

              The victim testified that the [Petitioner] put her on the bed, choked
      her while he was on top of her, and that she faded in and out of
      consciousness as a result. She recalled that the [Petitioner] told her, “Robin
      does what Robin wants to do. Robin wants to kill you, he’ll do it.” She
      said that the [Petitioner] also told her that his face was the last face she
      would ever see. The victim urinated and defecated on the bed. The
      [Petitioner] rolled her over and penetrated her anus with a large rubber
      dildo. The victim tried to cry out from the pain, but the [Petitioner] pressed
      her head into a pillow on the bed. The [Petitioner] then penetrated her anus
      with his penis and also penetrated her vagina with his penis and the dildo.

             She estimated that the ordeal lasted from approximately 6:00 p.m. to
      9:00 p.m. when the [Petitioner’s] phone rang. The [Petitioner] answered the
      phone and appeared agitated after the call. He told the victim to sit on the
      bed and to shut-up. She tried to think of a way out of the situation and told
      the [Petitioner] to relax. He allowed her to shower but made her keep the
      bathroom door open. The [Petitioner’s] girlfriend, Jennifer Abdelrahman,
      arrived at the house while the victim was in the shower. The victim thought
      the girlfriend looked frightened. The girlfriend gave the victim a shirt and
      some pants. The girlfriend made a phone call on her cellular telephone and
      distracted the [Petitioner], which allowed the victim to escape.
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       The victim testified that she ran and hid behind an air-conditioning
unit next to a large house. She waited there for approximately twenty
minutes before running down the street, knocking on doors and attempting
to get someone to call the police. The victim flagged down a pizza delivery
man who took her near her home and gave her a pizza. The victim did not
call the police on the night of the crimes because she wanted to talk to
Detective Jeremy Maupin, a police officer she trusted.

       When she reached the detective, he told her to go to the hospital.
However, the victim said she did not go to the hospital because she did not
have insurance. The victim’s throat and tongue were swollen after the
crimes, and she believed that she had a bone “loose” in her throat. Her ears
bled on the day after the incident, and she said that she had bruises for a
long time afterward. She also testified that she had blood in her stool for
approximately a month after the rape.

       Corey Woods testified that he worked for Snappy Tomato Pizza on
December 12, 2007, and that he was flagged down by the victim at
approximately 11:30 p.m. that night. He stopped for her after he saw her
try unsuccessfully to flag down two ambulances. The victim told him,
“Thank God you . . . stopped for me. There’s a man trying to kill me.”
Woods said that the victim was not wearing shoes and that he gave her a
pizza and took her near the hotel where she said she was staying.

       Detective Maupin testified that he had been with the Knoxville
Police Department for seven and one-half years. He said that he knew the
victim as a prostitute and that she was always honest with him and admitted
when she was doing wrong. He received a message from the victim on
December 13, 2007, but, because he was on vacation, did not speak to her
until he returned to work the following week. He met with the victim, and
she acted differently from their usual encounters. She was paranoid and
frightened, and her voice sounded raspy and distorted. He testified that the
victim’s face and throat were bruised. The victim gave him the pants that
she wore on the night of the crime, and they appeared to be blood stained.

        Investigator Andrew Boatman, of the Knoxville Police Department,
testified that he assisted in the interview with the victim. He said that he
observed bruising on her neck and recalled that she complained of
additional injuries and had difficulty speaking. He said that he participated
in the execution of a search warrant at the home of the [Petitioner], where
they secured items including a blue comforter, a blue blanket, a roll of duct
tape, and a rubber dildo. They also took the bed sheets because a technician
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      took a reading that indicated they might contain bodily fluids. The
      [Petitioner’s] girlfriend was at the residence when the search warrant was
      executed, and she appeared angry.

              Sally Helton, a forensic nursing expert, testified that she performed a
      “danger assessment” of the victim on January 17, 2008, and determined that
      the victim had injuries that were consistent with strangulation. She believed
      it was possible that the victim sustained nerve damage as a result of the
      attack.

              Bernice Phillips testified that she knew the [Petitioner] and his
      girlfriend and that she had talked to them on the night of December 12,
      2007. She said that she received a message from the [Petitioner’s]
      girlfriend, which was played for the court. On the audiotape, the
      [Petitioner’s] girlfriend identified herself, reported that the [Petitioner] had
      a prostitute at the house, and asked the unidentified person to tell what the
      [Petitioner] did to her. The unidentified person said, “He choked me. He
      threatened me. He tried to kill me.”

              In his defense, the [Petitioner] testified that he met the victim at a gas
      station, where he propositioned her for sex. He said that he took her to his
      house because he was leery of the hotel and neighborhood where she was
      staying. He said that they talked at his house and became comfortable with
      each other. The [Petitioner] testified that he asked the victim to shower
      because “some of the girls on Magnolia aren’t that clean.” He said that the
      victim performed oral sex on him after the shower.

              The [Petitioner] said that the bedroom was being renovated at the
      time. He said that the victim stopped performing oral sex because it was
      “taking too long, and she got hungry.” He said that he made pancakes for
      the victim and, after eating, they had sex but were interrupted by his
      girlfriend. He said this was not the first time that his girlfriend had caught
      him with another woman. He testified that he did not force the victim to
      have sex with him and did not strangle her. He claimed that he had the
      rubber dildo because he was unable to sexually satisfy his girlfriend.

Cooper, 2010 WL 2490768, at *1-3.

       After hearing the evidence, a Knox County jury convicted the Petitioner of one
count of attempted second degree murder, one count of rape, one count of aggravated
rape, one count of especially aggravated kidnapping, and three counts of aggravated
kidnapping. The trial court merged the kidnapping convictions into one count. The
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Petitioner was sentenced to an effective sentence of life without the possibility of parole.

                               B. Post-Conviction Hearing

        The Petitioner filed a petition for post-conviction relief, contending that his trial
counsel was ineffective for: (1) failing to challenge the admissibility of the recorded
statement made by the victim on the Petitioner’s girlfriend’s cell phone; (2) failing to
direct the trial court’s attention to Tennessee Code Annotated section 40-35-120 when
arguing for a continuance; and (3) failing to call Jennifer Abdelrahman, the Petitioner’s
girlfriend, as a witness on the Petitioner’s behalf at trial. The post-conviction court held
an evidentiary hearing, wherein it heard the following evidence: Abdelrahman testified
that at the time of the offenses, she was living with the Petitioner “as his girlfriend.” She
testified that, when she came home on the day of the offense, she found the victim,
unclothed and uninjured, in bed with the Petitioner. She stated that the victim said she
had not had intercourse with the Petitioner. Abdelrahman stated that she believed the
victim was “afraid” of the Petitioner but seemed “fine” when she left the residence.
Abdelrahman testified that she called the Petitioner’s parole officer and told the victim it
was the police on the phone and to talk to them.

       On cross-examination, Abdelrahman confirmed that she called the Petitioner’s
parole officer and that she left a voice mail on the officer’s phone. Abdelrahman testified
that she had called the police in the past when the Petitioner had become violent with her;
she also testified that she told the police she was afraid of the Petitioner.

       Counsel testified that he represented the Petitioner in general sessions court, which
included the preliminary hearing. He testified that he was aware of the sentence the State
was seeking for his client and that he requested a continuance before the trial, which was
denied.

       Counsel testified that he and the Petitioner met with Abdelbrahman on “multiple
occasions” and that her “interview and statements to police were contradictory to what
she was willing to testify to at trial.” Counsel testified that he discussed with the
Petitioner whether to call Abdelbrahman as a witness. He said that neither he nor the
Petitioner “thought she could keep it together on cross-examination” about the
Petitioner’s prior conviction and subsequent parole for disemboweling another woman.
Counsel testified that it was a “trial tactic” not to call her as a witness because Counsel
and the Petitioner both “thought she would come unraveled in moments” on the witness
stand.

       On cross-examination, Counsel testified that he “left it up to [the Petitioner] to
decide if he wanted . . .[Abdelbrahman] to testify.” He further stated that he and the
Petitioner “agreed that [not putting her on the stand] was the best call.”
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       Counsel also testified that he did not object to the admissibility of the victim’s
recorded statement because “he thought the recorded statement of the victim . . . would
come in as fresh complaint or excited utterance[.]”

       Based upon this testimony, the post-conviction court dismissed the petition for
post-conviction relief. It is from this judgment that the Petitioner now appeals.

                                       II. Analysis

       On appeal, the Petitioner argues that, because he received ineffective assistance of
counsel at trial, the post-conviction court erred when it dismissed his petition for
post-conviction relief. The State argues that the post-conviction court properly found that
the Petitioner did not prove his allegations by clear and convincing evidence and did not
establish that he was prejudiced by any alleged deficiencies in Counsel’s representation.
We agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2012). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2012). Upon our review, the trial judge’s findings of fact are
given the effect and weight of a jury verdict, and this Court is “bound by the trial judge’s
findings of fact unless we conclude that the evidence contained in the record
preponderates against the judgment entered in the cause.” Black v. State, 794 S.W.2d
752, 755 (Tenn. Crim. App. 1990). Thus, this Court will not re-weigh or re-evaluate the
evidence below; all 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 trial court, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment.        Second, the [petitioner] must show that the deficient
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       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial
       whose result is reliable. Unless a [petitioner] makes both showings, it
       cannot be said that the conviction or death sentence resulted from a
       breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417,
419 (Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show
that “counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at
690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court
must be highly deferential and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State, 945
S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only
what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed
to have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.
1980). “The fact that a particular strategy or tactic failed or hurt the defense does not,
standing alone, establish unreasonable representation. However, deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation.” House, 44 S.W.3d at 515 (internal quotations omitted).

       If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “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; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable
                                            7
probability must be “sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

      In its order denying the Petitioner relief on this issue, the post-conviction court
made the following findings:

              The Petitioner has failed to carry his burden in establishing that trial
       counsel’s performance was deficient. Furthermore, he has failed to show
       how he was prejudiced in anyway [sic] by counsel’s alleged deficiencies.
       To the contrary, it appears from the record and the hearing in this matter
       that [Counsel] provided competent representation to the Petitioner and was
       successful in having some counts dismissed and others result in lesser
       convictions. Therefore, the petition for post-conviction relief on the ground
       of ineffective assistance of counsel is DENIED.

      On appeal, the Petitioner maintains that Counsel was ineffective for failing to call
Abdelbrahman as a witness and for failing to object to the admissibility of the recorded
statement of the victim.

        Regarding Counsel’s decision not to call Abdelbrahman as a witness, Counsel
testified that he discussed with the Petitioner whether to call her as a witness. He testified
that he had problems with Abdelrahman as a witness because her statements to the police
were inconsistent with what she wanted to say on the witness stand. Counsel testified
that, when he attempted to prepare Abdelrahman as a witness, she repeatedly brought up
the Petitioner’s prior violent conviction and his parole status. Counsel testified that he
discussed this with the Petitioner, and they decided together not to call Abdelrahman as a
witness at trial.

        We review Counsel’s conduct from his perspective at the time, Strickland, 466
U.S. at 690, Hellard 629 S.W.2d at 9, and based on the evidence in the record, we find
nothing to suggest that the decision not to call Abdelbrahman was anything but the
informed and considered strategic decision of Counsel, made together with his client,
after adequate trial preparation. The evidence is that the decision was made by Counsel
and the Petitioner after it was determined that Abdelbrahman was not going to be a good
witness for the defense and that the Petitioner agreed with this determination and agreed
that it would be in his best interest not to call her as a witness. In our view, failing to call
Abdelbrahman as a witness under the circumstances is not evidence of “representation . . .
below an objective standard of reasonableness.” House, 44 S.W.3d at 515. Rather, the
evidence shows that it was a decision made in the course of trial preparation.
Accordingly, the evidence in the record does not preponderate against the post-conviction
court’s finding. We conclude that the Petitioner failed to show by clear and convincing
evidence that Counsel’s performance was deficient or that the Petitioner was prejudiced
                                               8
as a result.

        Regarding the Petitioner’s second allegation of ineffective assistance of counsel,
Counsel’s failure to object to the admissibility of the victim’s recorded statement, the
record supports the post-conviction court’s findings. Counsel testified that he presumed
that the statement would be admissible under a recognized hearsay exception, the excited
utterance exception, and thus he did not object to its admissibility. The Petitioner has
provided no evidence that Counsel’s decision not to object rendered his representation
constitutionally inadequate, and, lacking the same, we will not “second guess” Counsel’s
tactical and strategical choices. Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993)
(citing Hellard, 629 S.W.2d at 9). As such, this Court will not disturb on appeal the post-
conviction court’s finding that the Petitioner was not deprived of effective assistance of
counsel on this issue.

       Accordingly, we conclude that the Petitioner failed to show that Counsel’s
representation fell below an objective standard of reasonableness. See Baxter, 523
S.W.2d at 936. The Petitioner has also not proven he was prejudiced by Counsel’s
representation. The Petitioner is not entitled to relief.

                                     III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that
the post-conviction court properly dismissed the Petitioner’s petition for post-conviction
relief. Accordingly, we affirm the judgment of the post-conviction court.


                                                 _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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