        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 21, 2014 Session

            DAVID DEWAYNE SMITH v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Cumberland County
                      No. 8358-B    Leon C. Burns, Jr., Judge




              No. E2013-02833-CCA-R3-PC            - Filed January 13, 2015



The Petitioner, David Dewayne Smith, was indicted along with three other individuals for
first degree murder and conspiracy to commit first degree murder. Before trial, the State
entered a nolle prosqeui as to the charges against one co-defendant and entered into a plea
agreement with another. The trial proceeded against the Petitioner and the remaining co-
defendant. On the third day of trial, the State announced that it had entered into a plea
agreement with the remaining co-defendant, and the co-defendant would testify against the
Petitioner. Trial counsel made oral motions for a mistrial and a continuance, both of which
were denied by the trial court. The Petitioner was convicted of first degree murder and
conspiracy to commit first degree murder, and this Court affirmed his conviction on appeal.
The Petitioner subsequently filed a petition for post-conviction relief alleging ineffective
assistance of counsel. After a hearing, the petition was denied. On appeal, the Petitioner
challenges the denial of post-conviction relief on 12 grounds. After a thorough review of the
record and the applicable law, 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 J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Harvey Douglas Thomas, Algood, Tennessee, for the appellant, David Dewayne Smith.

Robert E. Cooper, Attorney General and Reporter; Renee W. Turner, Senior Counsel; and
Joseph D. Baugh, Special Prosecutor, for the appellee, State of Tennessee.


                                             -1-
                                                OPINION

       Following a jury trial, the Petitioner, David Dewayne Smith, was convicted of first
degree premeditated murder and conspiracy to commit first degree murder. He received
concurrent sentences of life for the first degree murder conviction and 20 years for the
conspiracy conviction. This Court affirmed his convictions on appeal, and the Tennessee
Supreme Court declined review. State v. David Dwayne Smith, No. E2007-00084-CCA-R3-
CD, 2009 WL 230696 (Tenn. Crim. App. Feb. 2, 2009) perm. app. denied (Tenn. Aug. 17,
2009).1

        The Petitioner filed a timely petition for post-conviction relief claiming ineffective
assistance of counsel. After a hearing, the post-conviction court denied the Petitioner’s
request for relief. On appeal, the Petitioner challenges the denial of post-conviction relief,
alleging that he received ineffective assistance of counsel based upon trial counsel’s failure
to: (1) object on due process grounds when the State announced that it had entered a plea
agreement with the Petitioner’s co-defendant and the co-defendant would testify against the
Petitioner; (2) object to the violation of the sequestration rule when the Petitioner’s co-
defendant testified after having watched the majority of the State’s proof as a co-defendant;
(3) call Lisa Regan as a witness to establish her as a potential suspect for the murder; (4)
ensure the trial record included arguments concerning the admissibility of a video made by
the Petitioner’s investigator; (5) object to various incidents of prosecutorial misconduct; (6)
interview Ellison Watson or call him as a witness in order to establish an alibi defense; (7)
perform a handwriting analysis of the signature on a scale ticket2 entered into evidence; (8)
object to the State’s presentation of trial testimony during its closing arguments; (9) object
to portions of Tonya Mansel’s testimony as uncorroborated hearsay; (10) follow through with
an objection he made about the State’s leading Ms. Mansel in her testimony or raise the issue
on appeal; (11) impeach the State’s witnesses or have their testimonies declared inadmissible
because the State admitted that their witnesses were withholding evidence and not telling
“the whole story;” and (12) object to the variance between the bill of particulars and the
proof the State presented at trial. After a thorough review of the record and the applicable


        1
          On direct appeal, the Petitioner’s name was spelled “David Dwayne Smith.” For the sake of
accuracy, all citations to the direct appeal use this spelling. However, since the Petitioner’s indictment is
not included in the post-conviction record and the post-conviction petition spells the Petitioner’s name as
“David Dewayne Smith,” we will use that spelling when referring to the Petitioner by name.
        2
          In the post-conviction record, the parties refer to this document interchangeably as a “receipt” and
an “invoice ticket.” The actual document is not included in the post-conviction record. However, on direct
appeal, this Court referred to the document as a “scale ticket” from a scrap metal facility. In this opinion,
we will refer to the document as a “scale ticket.”

                                                     -2-
law, we affirm the judgment of the post-conviction court.
                           Factual and Procedural Background
                                              Trial
        A detailed summary of the evidence presented at trial can be found in this Court’s
opinion from the Petitioner’s direct appeal. David Dwayne Smith, 2009 WL 230696, at *1-
*11. We will restate the facts as necessary to this appeal. The Petitioner was indicted, along
with three other individuals, for first degree premeditated murder and conspiracy to commit
first degree murder. Id. at *1.3 Prior to trial, the State entered a nolle prosqeui as to the
charges against co-defendant Ellison Watson. Id. Also prior to trial, the State entered into
a negotiated plea agreement with co-defendant Anthony Underwood. Id. Pursuant to this
plea agreement, Mr. Underwood entered a plea to a lesser-included offense and agreed to
testify against the remaining two co-defendants, the Petitioner and Mitchell Hunter Oakes.
Id.

       At trial, Mr. Underwood testified that on the night of the murder he, Mr. Oakes, and
the Petitioner drove a Cadillac to the victim’s home with the goal of scaring the victim. Id.
at *4. Before leaving for the victim’s house, the Petitioner “pulled a ‘do-rag’ over his head
and put on a pair of surgical gloves, a long-sleeved shirt, and work gloves over the surgical
gloves. [The Petitioner] then duct taped the working gloves into the sleeves of his shirt.”
Id. Mr. Oakes was carrying a pistol. Id. The group drove past the victim’s house twice. Id.
At the foot of a hill near the victim’s house, the Petitioner asked to be let out of the car. Id.
The Petitioner exited the car with a .44 pistol and walked into the woods.4 Id. Mr.
Underwood said he and Mr. Oakes drove around for about 20 minutes before the Petitioner
returned to the area where he had exited the car. Id. When the Petitioner got back into the
car, he said, “It’s done, it’s taken care of.” Id. The group then returned to Mr. Oakes’s
residence, where the Petitioner showed them that there was one spent round in the gun’s
chamber. Id. The next morning, they disposed of the weapon. Id.

       Two days into the trial, the State entered into a negotiated plea agreement with Mr.
Oakes wherein he would plead guilty to the lesser-included offense of solicitation of second
degree murder in exchange for his testimony against the Petitioner. Id. at *1. The trial court
granted the State’s motion to sever Mr. Oakes from the Petitioner, and Mr. Oakes was
sequestered. Mr. Oakes then testified as the State’s final witness in its case-in-chief.
Following Mr. Oakes’s direct examination, in which Mr. Oakes identified the Petitioner as

        3
         The Petitioner has only included portions of the trial transcript in the record for the post-conviction
proceedings. Therefore, we rely on this Court’s opinion from the direct appeal for some of the facts of this
case. Any time facts are drawn from the our prior opinion, we have provided a citation.
        4
          It is unclear from the opinion on direct appeal whether the .44 pistol Mr. Underwood observed the
Petitioner carrying was the same pistol Mr. Oakes had been carrying.

                                                      -3-
the triggerman, the trial court recessed until the next morning to allow trial counsel time to
prepare his cross-examination. Trial counsel had about 18 hours to prepare for his cross-
examination.

       At the conclusion of trial, the jury convicted the Petitioner of first degree premeditated
murder and conspiracy to commit first degree murder. The Petitioner received concurrent
sentences of life imprisonment for first degree premeditated murder and 20 years for
conspiracy to commit first degree murder. This Court affirmed the convictions on direct
appeal. Id. at *1.

                                Post Conviction Proceedings

       The Petitioner filed a pro se petition for post-conviction relief. Post-conviction
counsel was appointed, and an amended petition was filed. In the amended petition, the
Petitioner argued that he was denied effective assistance of counsel and listed the 12 grounds
enumerated above to support his claim.

        At the post-conviction relief hearing, trial counsel testified that he represented the
Petitioner during the trial and on direct appeal. Trial counsel stated that before trial, he had
reviewed a prior statement Mr. Oakes had made to investigators and gone over it with the
Petitioner. He further testified that on the third day of the trial the State announced that it
had entered into a plea agreement with Mr. Oakes and that Mr. Oakes would testify against
the Petitioner and identify the Petitioner as the person who killed the victim. The State also
provided trial counsel with a written statement of Mr. Oakes’s proposed testimony. At that
point, trial counsel asked the court to grant a mistrial, but the court denied his request. Trial
counsel then asked for a continuance. The court denied his motion but agreed to recess after
Mr. Oakes’s direct examination until 9:00 a.m. the following day so that trial counsel could
review Mr. Oakes’s written statement and prepare his cross-examination.

       Trial counsel did not object to Mr. Oakes’s testifying on behalf of the State, and he
did not ask the trial court for another continuance when he returned to court the next
morning. Trial counsel testified that he did not file a written motion for mistrial after the
court denied his oral request because he felt that his time was better spent preparing for the
cross-examination of Mr. Oakes.

        Trial counsel testified that he was able to identify a number of inconsistencies between
the prior statement Mr. Oakes gave to police and the statement he had given the State, as well
as some inconsistencies between Mr. Oakes’s statements and Mr. Underwood’s testimony.
Trial counsel stated that he could have benefitted from extra time to conduct further
investigations into these inconsistencies. However, trial counsel was able to conduct a


                                               -4-
rigorous cross-examination of Mr. Oakes based on the inconsistencies he identified.
       Trial counsel further stated that he did not argue that allowing Mr. Oakes to testify
would violate the sequestration rule because the rule did not apply to Mr. Oakes while he was
a co-defendant.

        Additionally, trial counsel testified that he had been aware Lisa Reagan was the
victim’s girlfriend, and there were allegations that she had been abused by the victim. He
stated that he considered calling Ms. Reagan as a witness to establish her as a possible
suspect for the murder. However, when trial counsel discussed this defense strategy with the
Petitioner, the Petitioner instructed trial counsel to “go along with” Mr. Oakes’s defense
strategy.5 Ultimately, trial counsel elected not to call Ms. Reagan as a witness. Ms. Reagan
had provided a number of statements to law enforcement, the Petitioner’s investigator, and
trial counsel, and those statements were largely inconsistent. Trial counsel testified that he
was uncertain what Ms. Reagan would say on the stand, and once Mr. Oakes testified against
the Petitioner, trial counsel did not want to risk placing her on the stand and having a third
person accuse the Petitioner of committing the murder. Additionally, trial counsel stated that
he would not have asked the court for a continuance to interview Ms. Reagan because, no
matter how many statements she gave, he “never would have been comfortable with what she
would say if you put her on the witness stand.” He further stated that he did not enter Ms.
Reagan’s written statements into evidence because they were hearsay.

        Trial counsel testified that he hired Rick Berry, a private investigator, to help him
investigate the case. As part of that investigation, Mr. Berry reviewed Mr. Underwood’s
statement. Mr. Underwood claimed that, on the night of the murder, the Petitioner was
dropped off on a road some distance from the victim’s home after dark and that the Petitioner
walked up a hill through the woods to reach the victim’s house. Mr. Berry and trial counsel
discovered that based on the weather report and moon phases on the night of the murder,
there was little to no moonlight. Further, there were no lights near the route that the
Petitioner was alleged to have walked to get to the victim’s house. Mr. Berry and trial
counsel went to the location where Mr. Underwood stated the Petitioner was dropped off
around the same time of night the murder occurred in order to see if they could get to the top
of the hill and back in the time frame established by Mr. Underwood’s statement. They also
documented this excursion on video. The video was offered at trial for identification
purposes but was not admitted into evidence. Trial counsel testified that the trial court ruled
that it was not admissible because there was no way to determine that the conditions in the
video were the same as the conditions on the night of the murder.

       Trial counsel testified that he never interviewed Ellison Watson, one of the three


       5
           The record does not explain what Mr. Oakes’s trial strategy was.

                                                    -5-
individuals originally indicted with the Petitioner, because the Petitioner had indicated that
Mr. Watson’s testimony would be adverse to the Petitioner’s defense. Trial counsel again
testified that the Petitioner instructed him to “go along” with Mr. Oakes’s defense strategy.
Additionally, trial counsel did not interview Mr. Watson after Mr. Oakes testified because
the Petitioner had convinced him that Mr. Watson’s testimony would not be helpful. Further,
trial counsel was concerned that Mr. Watson’s testimony would undermine favorable
testimony from other witnesses.

        Trial counsel noted that the car the defendants drove on the night of the murder was
sold as scrap, and the scale ticket was allegedly signed by the Petitioner. However, the
Petitioner told trial counsel that he never signed the scale ticket. Trial counsel admitted that
he did not have the signature on the scale ticket analyzed by a handwriting expert. Instead,
he obtained a copy of the Petitioner’s driver’s license, as well as several other documents
containing the Petitioner’s signature. Trial counsel testified that he compared the signature
on the scale ticket with the Petitioner’s known signatures, and the signatures “didn’t look
anything alike.”6 Trial counsel believed that the jury could compare the signature on the
scale ticket to other examples of the Petitioner’s signature and see that they were different
without the aid of expert testimony.

       Although trial counsel had wanted to show the jury the differences between the
signatures, the Petitioner instructed him not to introduce the evidence at trial. Instead, the
Petitioner told trial counsel to go along with Mr. Oakes’s defense strategy.

        Trial counsel recalled that Lisa Mansel testified at trial that she had seen the Petitioner
at a social gathering sometime after the murder. Ms. Mansel testified that the attendants of
the social gathering had been discussing the murder, and when the attendants turned to look
at the Petitioner, he grinned. According to trial counsel, when Ms. Mansel asked the
Petitioner if he had killed the victim, the Petitioner responded, “I didn’t feel a damn thing.”
Trial counsel stated that he discussed this statement with the Petitioner, and the Petitioner
explained that he was referring to himself when he made that statement.

        The Petitioner did not include a complete copy of Ms. Mansel’s trial testimony in the
post-conviction record. However, on direct appeal this Court outlined the relevant portion
of her testimony as follows:

        During this [social gathering], Ms. Mansel asked the group in general if they


        6
          Trial counsel explained that the handwriting on the scale ticket was much neater than the
Petitioner’s normal handwriting. Additionally, the scale ticket was signed “David Smith,” but the Petitioner
customarily signed documents as “D[e]wayne Smith.”

                                                    -6-
       had “heard about the murder across the mountain,” and Ms. Mansel
       commented that she “heard it was execution style.” According to Ms. Mansell,
       [the Petitioner] responded, “He didn’t feel a damn thing.” Ms. Mansel asked
       [the Petitioner], “Damn, did you do it.” Ms. Mansel stated that Lynn Watson
       said at that point, “Drop it.” Defense counsel objected to the statement as
       hearsay, and his objection was sustained by the court. Ms. Mansel then
       testified as follows:

              MS. MANSEL: He–he didn’t respond, [the Petitioner] didn’t
              respond. He kind of grinned and–
              THE STATE: What was the look on his face?
              MS. MANSEL: Kind of a grin, you know. Very–pretty much
              cold.
              THE STATE: Pretty cold? You felt it was pretty cold the way
              that . . .
              MS. MANSEL: Yeah.

David Dwayne Smith, 2009 WL 230696, at *30.

       During closing arguments, the State referred to Ms. Mansel’s testimony, claiming the
Petitioner answered Ms. Mansel’s question by saying, “He didn’t feel a damn thing.” In the
post-conviction proceedings, trial counsel asserted that the State’s argument was not an
accurate quote from Ms. Mansel’s testimony. However, trial counsel conceded that he did
not object to the statement. Trial counsel explained that Ms. Mansel had given a written
statement to investigators wherein she wrote, “He said he didn’t feel a damn thing.” Trial
counsel explained that he thought her statement was ambiguous, and he did not object to the
State’s closing argument because he felt the State had a basis for making it based on Ms.
Mansel’s testimony. Trial counsel further stated that he raised the issue on direct appeal.

         Trial counsel recalled that the trial court allowed Ms. Mansel’s testimony about the
Petitioner’s grinning as a non-verbal admission of a party opponent. Trial counsel admitted
that he did not object to this testimony during the trial, but he noted that he had challenged
it in a pre-trial motion and felt that the issue was preserved for appeal. Trial counsel could
not remember whether he challenged the admission of testimony about the Petitioner’s grin
on appeal. However, trial counsel explained that if he failed to raise that issue on appeal, it
was because he thought other issues were more persuasive.

       Trial counsel also noted that the State admitted in its closing argument that its own
witnesses were withholding evidence and “not telling the whole story.” Trial counsel did not
object to this statement. He explained that he had spent most of the night before preparing
for the cross-examination of Mr. Oakes. He said that he was troubled by the State’s

                                              -7-
argument, but he did not know what basis he would have to object. Additionally, trial
counsel argued in his closing statement that, since the State agreed that its witnesses were not
credible, the jury should not use their evidence to convict the Petitioner.

       Trial counsel also testified that he requested and was provided a bill of particulars in
preparation for trial and he relied on the State’s response to develop a trial strategy.
Additionally, trial counsel filed a motion before trial to require the State to give a more
detailed bill of particulars. Trial counsel was able to get a little more information about the
time frame of the crime, but ultimately the trial court ruled that the State had complied with
its obligations. However, as the proof developed at trial, some of the evidence was
inconsistent with what was disclosed in the bill of particulars.

        On cross-examination, trial counsel testified that he had been practicing criminal law
since 1999, and at the time of the trial, criminal law constituted about 40 percent of his
practice. Before this case, trial counsel had never tried a first degree murder case, but he
stated that he felt competent to represent the Petitioner. Trial counsel stated that he did not
have any problems working with the Petitioner and that the Petitioner was able to
communicate with trial counsel about the case. Because the Petitioner was out on bond
awaiting trial, he could visit trial counsel whenever he liked, and they met “a number of
times” in preparation for trial. Additionally, trial counsel researched investigators to assist
in preparing the case and chose an investigator that Mr. Oakes’s attorney often used in order
to “beat [him] to the punch.”

       Trial counsel began preparation for trial by gathering as much information he could
about the chronology of the crime and the identity of any witnesses. Through his
investigation, trial counsel discovered facts that could have benefitted the Petitioner and hurt
Mr. Oakes. Moreover, the State did not have direct evidence to prove who actually shot the
victim, and trial counsel perceived that Mr. Oakes planned to blame the shooting on one of
the other co-defendants or Ms. Reagan. Trial counsel was concerned Mr. Oakes would
identify the Petitioner as the triggerman, and he shared all of this information with the
Petitioner.

       Trial counsel stated that he would have preferred to have the Petitioner’s case severed
from the other co-defendants, but the trial court declined to sever the cases before trial. Had
the Petitioner been severed from his co-defendants, trial counsel believed the Petitioner may
have been less inclined to align his defense with that of Mr. Oakes. However, because the
cases were not severed, the Petitioner elected not to contradict Mr. Oakes’s defense and
decided they would “sink or swim together.”

       Trial counsel noted that, on direct appeal, he raised the issue of prosecutorial

                                              -8-
misconduct during closing arguments. He noted that the State argued in its closing statement
that the Petitioner’s defense was “smoking mirrors.”7 Trial counsel did not object to the
comment because he felt that it could ultimately benefit the Petitioner’s case. Trial counsel
admitted that he did not object to the “smoking mirrors” comment for tactical reasons, but
he claimed that he failed to object to other instances of prosecutorial misconduct because
they “went by [him].” 8

       Ellison Watson testified that he is the Petitioner’s uncle and one of the four
individuals originally charged in the indictment. The State dismissed the charges against Mr.
Watson before trial. Mr. Watson stated that he was never contacted by anyone defending the
Petitioner at trial. He stated that he was not with the Petitioner on the night of the murder,
and he knew nothing about the case that would benefit the Petitioner.

        In denying relief on the petition, the post-conviction court found that trial counsel
asked for a mistrial and a continuance when the State announced that Mr. Oakes would
testify against the Petitioner. The trial court denied the motion for mistrial and gave trial
counsel until the next morning to prepare his cross-examination of Mr. Oakes. The post-
conviction court found that a separate objection on the basis of a violation of due process
would not have made any difference in the case.

       The post-conviction court found that Mr. Oakes was not subject to the rule of
sequestration when he was a co-defendant, and he was sequestered as soon as his case was
severed from the Petitioner’s case. Additionally, the court found that the outcome of the trial
was not affected by Mr. Oakes’s presence in the courtroom for the majority of the State’s
proof.

      As to the failure to call Ms. Reagan as a witness, the post-conviction court noted that
Ms. Reagan did not testify at the post-conviction hearing, so the court had no evidence as to
whether her testimony would have been helpful to the Petitioner. Further, the post-
conviction court found that trial counsel made a strategic decision not to call her as a witness.

        Regarding the allegation that trial counsel failed to include in the trial record
arguments concerning the admissibility of the investigator’s video, the post-conviction court
found that the trial court ruled the video was inadmissible. Further, the post-conviction court


        7
            This Court believes the State meant to say “smoke and mirrors.”
        8
        Trial counsel raised these issues on appeal, but this Court found that any issue of prosecutorial
misconduct was waived because trial counsel did not contemporaneously object to the challenged statements.
See David Dwayne Smith, 2009 WL 230696, at *18.

                                                    -9-
stated that the video is not part of the record and there was no showing as to how it could
have changed the outcome of the trial. Based on the evidence provided, the post-conviction
court found that trial counsel was not deficient in this regard.

       As to trial counsel’s failure to object to instances of alleged prosecutorial misconduct,
the post-conviction court found that trial counsel was not deficient and an objection would
not have changed the outcome of the trial. The post-conviction court found that trial counsel
made a strategic decision not to object during the State’s closing argument. The court did
not find any proof to support the Petitioner’s allegations of blatant misconduct, and it noted
that saying “[h]e’s blowing – smoking mirrors” is not unusual within arguments.

       As to the failure to subpoena Mr. Watson to testify, the post-conviction court found
that, because Mr. Watson’s testimony would not have been helpful to the Petitioner, the
Petitioner failed to establish deficient performance or prejudice.

       As to the failure to perform a handwriting analysis on the signature on the receipt, the
post-conviction court found that the Petitioner instructed trial counsel not to introduce
evidence that the signature was forged. Further, the post-conviction court noted that the
Petitioner did not offer any evidence at the hearing to prove that the signature was forged.
The post-conviction court found that trial counsel was not deficient, and the Petitioner
suffered no prejudice.

        Regarding trial counsel’s failure to object to the State’s characterization of Ms.
Mansel’s testimony during closing arguments, the post-conviction court noted that trial
counsel did not object when the State presented Ms. Mansel’s testimony as Petitioner’s
stating, “He didn’t feel a damn thing,” even though Ms. Mansel supposedly testified that the
Petitioner said, “I didn’t feel a damn thing.” The post-conviction court found that trial
counsel made a reasonable decision not to object in that situation, and the Petitioner offered
no proof that an objection would have changed the outcome of the trial.

       As to counsel’s failure to object to Ms. Mansel’s testimony that the Petitioner grinned
in response to her question on the basis of hearsay, the post-conviction court found that her
testimony was admissible. Further, the post-conviction stated that the Petitioner offered no
proof that the trial court would have sustained an objection.

       As to the allegation that trial counsel failed to object to leading questions in Ms.
Mansel’s testimony, the post-conviction court stated that no proof had been offered
pertaining to leading questions. Therefore, the Petitioner failed to show that an objection
would have had any bearing on the outcome of the trial.



                                              -10-
       Regarding trial counsel’s failure to impeach the State’s witnesses or have their
testimony excluded because they were not “telling the whole story,” the post-conviction court
expressed doubt that any objection would have been sustained. Further, the court found that
the State’s witnesses were subject to “vigorous cross-examination,” and the Petitioner had
not offered any proof to show that he was prejudiced.

       As to any variance between the bill of particulars and proof presented at trial, the post-
conviction court noted that this Court addressed the issue on direct appeal and found that
there was no significant variance.

       Overall, the post-conviction court found that trial counsel “acted within the
professional bounds of reason,” and the Petitioner was not prejudiced by trial counsel’s
decisions. Therefore, the post-conviction court denied the petition for post-conviction relief.
This timely appeal followed.

                                           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)
(2012); 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.
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

                                              -11-
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).

        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. 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).

        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
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).

       In cases where a petitioner contends that trial counsel failed to discover, interview,
or present a witness in support of the petitioner’s defense, the petitioner must present such
witness at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). Neither a trial nor an appellate judge can speculate as to whether a certain
witness could have been found or whether that witness’s testimony would have been
favorable to the defense. Id. Therefore, the petitioner must “produce 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 [at trial]. Otherwise, the petitioner fails to
establish the prejudice requirement mandated by Strickland v. Washington.” Id. at 758.



                                              -12-
           Failure to Object to Mr. Oakes’s Testimony on Due Process Grounds

        The Petitioner argues that trial counsel was ineffective because he failed to object on
due process grounds when the State announced on the third day of trial that Mr. Oakes had
entered into a plea agreement and would testify against the Petitioner. The Petitioner admits
that trial counsel orally requested a mistrial and a continuance, but his motions were denied.
The Petitioner contends that trial counsel should have filed a formal motion for mistrial
“because of the surprise testimony and violation of due process and notice.” In its brief, the
State notes that the post-conviction court found that a separate objection from trial counsel
would not have affected the outcome of the trial. The State argues that the evidence does not
preponderate against the post-conviction court’s finding. We agree with the State.

        Trial counsel’s testimony from the post-conviction hearing shows that he requested
both a mistrial and a continuance when the State announced that Mr. Oakes would testify
against the Petitioner, and the trial court denied both motions. However, after Mr. Oakes’s
direct examination the trial court recessed until the next morning to allow trial counsel to
prepare for his cross-examination. Trial counsel was able to find a number of inconsistencies
between Mr. Oakes’s statement and Mr. Underwood’s testimony, and trial counsel was able
to vigorously cross-examine Mr. Oakes based on these inconsistencies. Further, the
Petitioner has provided no evidence to show that the outcome of the trial would have been
different if trial counsel had raised another objection. The Petitioner is not entitled to relief.

                  Failure to Object to the Violation of Sequestration Rule

        The Petitioner argues that trial counsel should have objected to Mr. Oakes’s testimony
as a violation of the sequestration rule because Mr. Oakes was able to sit through the trial and
hear the testimony of the majority of the State’s witnesses. The State argues that the
sequestration rule did not apply to Mr. Oakes until he became a witness, and once Mr. Oakes
was severed from the Petitioner, he was sequestered for the remainder of the State’s case-in-
chief. We agree with the State.

        Upon request of a party, Tennessee Rule of Evidence 615 excludes all witnesses from
watching or disclosing any evidence presented at trial. However, by its own terms the rule
does not apply to “a party who is a natural person.” Tenn. R. Evid. 615. Mr. Oakes was a
co-defendant during the first two days of the trial; he could not have been excluded under the
sequestration rule. Once the State announced that it had reached a negotiated plea agreement
with Mr. Oakes and he would be testifying against the Petitioner, Mr. Oakes was sequestered
for the testimony of State’s remaining witness. Therefore, trial counsel had no basis to object
to Mr. Oakes’s testimony as a violation of the sequestration rule. The Petitioner is not
entitled to relief.



                                              -13-
                          Failure to Call Lisa Reagan as a Witness

       The Petitioner argues that trial counsel was deficient for failing to call Ms. Reagan to
the stand because she had a motive to kill the victim. The State argues that trial counsel
made a strategic decision not to call Ms. Reagan, and he was not deficient in doing so.
Further, the State argues that the Petitioner has failed to prove he was prejudiced because Ms.
Reagan did not testify at the post-conviction hearing. We again agree with the State.

        Trial counsel testified that he was not comfortable calling Ms. Reagan to the stand
because he was not sure what she would say. After Mr. Oakes testified against the Petitioner,
trial counsel did not want to risk Ms. Reagan also identifying the Petitioner as the killer.
Because we will not second-guess a reasonable trial strategy, see Granderson, 197 S.W.3d
at 790, we cannot say that trial counsel’s decision constitutes deficient performance. Further,
because Ms. Reagan did not testify at the post-conviction hearing, the Petitioner has failed
to show that he was prejudiced by trial counsel’s decision not to call her as a witness. See
Black, 794 S.W.2d at 757-58. The Petitioner is not entitled to relief.

   Failure to Include the Arguments Concerning the Admissibility of the Investigator’s
                        Video Tape in the Record on Direct Appeal

        The Petitioner argues that trial counsel was deficient because he failed to include in
the direct appeal record a transcript of the arguments concerning the admissibility of the
video tape made by the Petitioner’s investigator. The Petitioner contends that trial counsel’s
failure to make the record complete precluded this Court from reviewing the issue on direct
appeal. The Petitioner argues that the video tape would have shown that it was too dark for
the Petitioner to have made it from the point he exited the car to the victim’s home and back
in the allotted time-frame, and its introduction would have changed the outcome of the trial.
The State argues that because the videotape was not included in the post-conviction record,
the Petitioner has failed to prove that the tape would alter the outcome of the trial. We agree
with the State.

        On direct appeal, this Court noted that the trial transcript did not reflect whether the
trial court made a ruling as to the admissibility of the video. David Dwayne Smith, 2009 WL
230696, at *29. However, in the post-conviction proceedings trial counsel testified and the
post-conviction court found that the trial court ruled that the tape was inadmissible. Further,
the Petitioner has not included the omitted portion of the trial transcript or the actual video
tape in the post-conviction record, and he has not provided any evidence that introduction of
the videotape would have changed the outcome of the trial. Therefore, the Petitioner has
failed to prove that he was prejudiced by trial counsel’s failure to ensure the record on appeal
was complete regarding the videotapes. See Black, 794 S.W.2d at 757-58. The Petitioner
is not entitled to relief.

                                              -14-
            Failure to Object to Various Incidents of Prosecutorial Misconduct

        The Petitioner argues that trial counsel was deficient for failing to object to “various
issues showing prosecutorial misconduct.” Due to trial counsel’s failure to object, this Court
did not consider the issue on direct appeal. David Dwayne Smith, 2009 WL 230696, at *18.
The Petitioner contends that “proof that the prosecutor was blatantly engaged in misconduct
against the [P]etitioner could have changed the entire outcome of the appeal.” The State
argues that the Petitioner has failed to offer proof of any alleged misconduct and has
therefore waived the issue.

       The post-conviction court found no instances of blatant prosecutorial misconduct. It
also determined that reasonable minds could disagree as to whether the statement, “He’s
blowing–smoking mirrors,” constituted prosecutorial misconduct. Nevertheless, the post-
conviction court found that trial counsel made a tactical decision not to object to the
“smoking mirrors” comment. We will not second-guess trial counsel’s reasonable strategic
decision on appeal. See Granderson, 197 S.W.3d at 790.

         Therefore, we hold that trial counsel was not deficient in failing to object to the
State’s comment that the defense was “smoking mirrors.” Further, the Petitioner has not
proven that such objection would have changed the outcome of the trial. As to any other
incidents of prosecutorial misconduct, the Petitioner has failed to offer any proof or cite to
the trial record. As such, the Petitioner is not entitled to relief.

                     Failure to Interview or Subpoena Ellison Watson

        The Petitioner argues that trial counsel was deficient for failing to interview or
subpoena Ellison Watson. The Petitioner contends that trial counsel should have developed
Mr. Watson as a possible alibi witness once another witness testified that he had seen the
Petitioner with Mr. Watson during the time-frame of the murder. The State argues that the
Petitioner is not entitled to relief because Mr. Watson testified at the post-conviction hearing
that he was not with the Petitioner on the night of the murder and he did not know anything
that would help the Petitioner’s defense. We agree with the State.

        Trial counsel testified that the Petitioner told him numerous times that Mr. Watson
would not be helpful to his defense. Additionally, the Petitioner instructed trial counsel to
pattern his defense off Mr. Oakes’s defense strategy. Based upon the Petitioner’s
representations, trial counsel did not interview or subpoena Mr. Watson. . In light of Mr.
Watson’s testimony, the Petitioner has failed to show that he suffered any prejudice from trial
counsel’s failure to interview or subpoena Mr. Watson. The Petitioner is not entitled to
relief.



                                              -15-
                         Failure to Perform a Handwriting Analysis

        The Petitioner argues that trial counsel was deficient for failing to perform a
handwriting analysis on the signature, purported to be the Petitioner’s, on the scale ticket
from the scrap metal facility. The Petitioner contends that, had trial counsel “done the
handwriting analysis as the [P]etitioner requested,” the evidence would show that the
Petitioner’s signature was forged and would create reasonable doubt that the Petitioner was
involved in the crime. The State argues that the Petitioner instructed trial counsel not to use
any evidence to show that the signature was forged and therefore the issue is waived.
Additionally, the State argues that the Petitioner did not present any proof at the post-
conviction hearing to show that it was not his signature on the scale ticket, and thus, he has
failed to prove he was prejudiced.

        Trial counsel testified that he compared the signature on the scale ticket from the scrap
metal facility to signatures on several documents that the Petitioner admitted to signing, and
the signatures did not look anything alike. While trial counsel admitted that he did not have
a handwriting expert analyze the signature on the scale ticket, trial counsel stated that he
thought the jury could see the differences between the signature on the ticket and examples
of the Petitioner’s signature without the aid of expert testimony. Trial counsel testified that
he wanted to present this evidence to the jury, but the Petitioner instructed him not to do so.

        Even if we were to find that trial counsel was deficient in failing to obtain a
handwriting analysis or present evidence about the inconsistent signatures to the jury, the
Petitioner has failed to establish that he suffered any prejudice. The only evidence presented
at the post-conviction hearing was trial counsel’s statements that the signature on the scale
ticket did not resemble other examples of the Petitioner’s signature. The Petitioner did not
present any evidence as to what the results of a handwriting analysis would show or if it
would have benefitted him. Moreover, the Petitioner did not provide the scale ticket and
examples of his known signature at the post-conviction hearing. Because the Petitioner did
not present such evidence, he has failed to prove that he was prejudiced by trial counsel’s
failure to have a handwriting analysis performed or by trial counsel’s failure to present other
evidence that the signatures were inconsistent. See Black, 794 S.W.2d at 757-58. The
Petitioner is not entitled to relief.

               Failure to Object to the State’s Presentation of Lisa Mansel’s
                           Testimony During Closing Arguments

       The Petitioner argues that trial counsel should have objected when the State argued
in closing that Ms. Mansel heard the Petitioner say, “He did not feel a damn thing.” The
Petitioner contends that Ms. Mansel actually testified that the Petitioner said, “I didn’t feel

                                              -16-
a damn thing,” and trial counsel’s failure to object allowed the State to give the jury an
inaccurate impression that the Petitioner was referring to the victim when he made that
statement. The State argues that the evidence does not preponderate against the post-
conviction court’s finding that the statement was open to different interpretations, and an
objection would not have changed the outcome of the trial.

        Trial counsel testified that he did not object to the State’s closing argument because
he thought Ms. Mansel’s statement was ambiguous, and the State had a reasonable basis to
characterize her statement as it did. Based on the record, we cannot say that trial counsel was
deficient for failing to object to the characterization of Ms. Mansel’s testimony. Moreover,
even if trial counsel was deficient, the Petitioner has failed to provide any evidence as to how
the State’s argument prejudiced his defense. The Petitioner is not entitled to relief.

                  Failure to Object to the Admission of Hearsay Evidence

       The Petitioner argues that trial counsel was deficient in failing to object to Ms.
Mansel’s statement that the Petitioner grinned when she asked if he had killed the victim.
The Petitioner avers that Ms. Mansel’s testimony was inadmissible hearsay and that the State
used her testimony to obtain a false conviction. The State argues that trial counsel did object
to Ms. Mansel’s testimony, and the trial court allowed the statement as a non-verbal
admission by a party opponent. Further, the State notes that the Petitioner failed to present
evidence to show that the trial court’s ruling was incorrect.

       We note that on direct appeal, this Court reviewed the issue of whether Ms. Mansel’s
testimony about the Petitioner’s grin should have been excluded. We concluded that the trial
court did not err when it admitted the testimony as a non-verbal admission by a party
opponent. David Dwayne Smith, 2009 WL 230696, at *30-31. It is clear from our opinion
on direct appeal that trial counsel made sufficient objection to Ms. Mansel’s statement so as
to preserve the issue for appeal. Therefore, we find that counsel was not deficient.
Therefore, the Petitioner is not entitled to relief.

         Failure to Follow Through with Objections Made to Leading Questions

        The Petitioner argues that trial counsel failed to “follow through with the objection
he made about the prosecutor leading Ms. Mansel’s testimony.” However, the Petitioner did
not provide any evidence as to this issue at the post-conviction hearing. Therefore, we find
that the Petitioner failed to establish by clear and convincing evidence that trial counsel was
ineffective and is not entitled to relief.




                                              -17-
 Failure to Impeach State’s Witnesses or Have Their Testimonies Declared Inadmissible

       The Petitioner argues that trial counsel should have impeached the “State’s
witnesses”9 or sought to have their testimonies declared inadmissible because the State
admitted in its closing that its witnesses were “withholding evidence and not telling the
whole story.” The Petitioner contends that, had trial counsel challenged the witnesses’
testimony, the outcome of the trial would have changed. The State argues that the record
supports the post-conviction court’s finding that trial counsel subjected the State’s witnesses
to “vigorous cross-examination” and that the Petitioner failed to demonstrate any prejudice.
We agree with the State.

        Trial counsel cross-examined both Mr. Underwood and Mr. Oakes, and he was able
to expose a number of inconsistencies in their respective testimonies. Further, trial counsel
testified that he argued in his closing that because the State agreed that its witnesses were not
credible, the jury should not use their testimony to convict the Petitioner. The Petitioner is
not entitled to relief.

        Failure to Object to Variance Between the Bill of Particulars and Evidence
                                    Presented at Trial

       The Petitioner argues that trial counsel was deficient in failing to object to a variance
between the bill of particulars and the evidence present at trial. On appeal, the Petitioner
does not explain how the evidence at trial differed from the facts listed in the bill of
particulars, and the State correctly notes that this Court found on direct appeal that there was
no significant variance between the bill of particulars and the evidence presented at trial. See
David Dwayne Smith, 2009 WL 230696, at *35. Because there was no significant variance,
the Petitioner cannot demonstrate deficient performance or prejudice. Therefore, the
Petitioner is not entitled to relief.

                                               Conclusion

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

                                                           _________________________________
                                                           ROBERT L. HOLLOWAY, JR., JUDGE


        9
          The Petitioner does not identify which of the “State’s witnesses” he contends trial counsel should
have impeached. However, upon reviewing the transcript of a portion of the State’s closing argument that
is attached as an exhibit to the transcript of the post-conviction hearing, it appears that the Petitioner is
referring to Mr. Underwood and Mr. Oakes as the “State’s witnesses.”

                                                    -18-
