                                                                                      01/16/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs May 17, 2017

               DWAYNE WRIGHT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                    No. 11-05627       W. Mark Ward, Judge
                     ___________________________________

                          No. W2016-01260-CCA-R3-PC
                      ___________________________________


Petitioner, Dwayne Wright, was convicted of one count of aggravated rape and sentenced
to twenty-four years in the Department of Correction. On appeal, this court affirmed his
conviction and sentence. State v. Dwayne Wright, No. W2013-00433-CCA-R3-CD, 2014
WL 1168579 (Tenn. Crim. App. March 21, 2014). Petitioner filed a timely petition for
post-conviction relief. Following a hearing on the petition, the post-conviction court
denied relief. On appeal, Petitioner argues that he received ineffective assistance of
counsel because trial counsel failed to call Eric Hulbert as a witness at trial. After a
thorough review, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, Dwayne Wright.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Amy P. Weirich, District Attorney General; and Omar Malik, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

Background

      The facts as set forth by this Court on direct appeal are as follows:

        The victim testified that on the evening of April 9, 2002, she, her then-
        boyfriend, now husband, and her friend, Eva Lundahl, had dinner
        together at the home they shared. The group consumed a couple of
bottles of wine with their dinner. At some point during the evening, a
friend called Ms. Lundahl, and they made plans to go and sing kar[a]oke
at Alfred’s on Beale Street. The victim decided to join them, but her
boyfriend remained home with the victim’s child. The group arrived at
Alfred’s around 10:00 p.m., with the victim wearing black pants, a black
shirt, and ankle boots. Underneath her clothes, she wore a bra and
pantyhose, but she did not wear panties.

Upon their arrival, the group sat at a table and ordered several alcoholic
beverages. More people they knew joined them, and the group
continued to drink and began dancing together. No drugs were taken,
and no one was seeking to purchase them. Although she had been
drinking alcohol, the victim was not intoxicated to the point that she had
trouble walking or slurring her words. Ms. Lundahl eventually got onto
the stage to sing kar[a]oke. Around midnight, the victim proceeded
toward the women’s restroom. In the area near the restrooms at Alfred’s
“[t]here’s a doorway you walk in [and] the women’s bathroom is to the
right [and] the men’s [bathroom is] to the left.” The area was dark and
there was “a little hallway [with] a cigarette machine . . . between the”
restroom doorways.

As the victim approached the area, she stopped because she believed that
the defendant, whom she did not know, seemed to be saying something
to her. She could not hear what the defendant was saying, so the victim
leaned forward to hear. At that point, the defendant grabbed the victim
and pushed her through the door of the men’s restroom and into a stall
inside the room. The victim was approximately five feet tall and
weighed around 115 pounds. The defendant was six feet, four inches tall
and weighed approximately 295 pounds.

The victim was forced into the handicap stall with her body facing the
toilet, with the defendant remaining behind her. The defendant ripped
her pants down, ripping the zipper and a hole in her pantyhose.
Although the victim was pleading with the defendant to stop, he
continued and penetrated her vagina and anus. The victim felt the
defendant’s hands on the back of her neck and head, and she “felt him
inside of her.” At some point, the victim heard someone begin to beat
upon the stall door. [Defendant] stopped his assault at that point, and he
exited the stall. The crying victim pulled her pants up and saw the man
who had banged on the door. The man did not speak but “indicat[ed] a
sort of shhh sign with [his] mouth.” The victim stopped crying, and the
man walked her to the restroom door. The victim did not know this man


                                  -2-
or where he went after she left the restroom. The victim did recall seeing
other men in the restroom when she left.

The victim was shocked and scared and did not seek assistance from
anyone regarding the rape at that time. She returned to her table and
finished her drink. Ms. Lundahl noted a change in the victim’s mood
upon her return from the restroom. Some time later, the victim asked to
leave. At the time the group left Alfred’s, the victim had not told anyone
that she had been raped.

The group proceeded to a coffee shop called The Map Room. The
victim sat with the group, listening to their conversation and drinking
coffee. She felt numb, frozen, and did not feel like laughing with her
friends. The victim also noted that her rectum was hurting. Ms. Lundahl
described the victim during this time as “very blank in the face.” The
victim and Ms. Lundahl at some point went to the restroom together at
The Map Room. The victim urinated, wiped herself, and noticed blood
on the tissue, as well as on her clothing. The victim began crying and
told Ms. Lundahl what had happened to her at Alfred’s. Ms. Lundahl
suggested that they call the police or call the victim’s boyfriend, but the
victim refused to talk to anyone at the time.

Early the next morning, the victim and Ms. Lundahl left The Map Room
with Ms. Lundahl’s ex-boyfriend and his sister. They returned to the
victim’s and Ms. Lundahl’s residence, arriving at approximately 7:00
a.m. The victim’s boyfriend had already gotten her child off to school,
and he was not happy that the victim had not called to tell him that she
was going to be later than expected in coming home. The victim told her
boyfriend nothing about the rape, and, after a short discussion, he left for
work. Ms. Lundahl and the two other guests had gone upstairs to her
room.

The victim laid down on her bed because she was upset. She eventually
got up and removed her clothes, leaving them on the bathroom floor,
before dressing in sweatpants and a t-shirt. The victim did not shower,
as she knew that rape victims were not supposed to shower afterwards.
The victim’s boyfriend became concerned that something was wrong
with the victim while he was at work. Around 1:00 p.m., he returned
home and found the victim “curled up in the bed with a blanket pulled
over her, just kind of in a ball laying there . . . .” He asked the victim
why she had been out so late the previous evening, and she responded
that someone had tried, unsuccessfully, to rape her at Alfred’s. He went
into the bathroom and saw the victim’s clothes on the floor, noticing that

                                   -3-
the zipper of the pants and the pantyhose were ripped. He again asked
the victim what had happened, and she told him that she had in fact been
raped by an unknown black man at Alfred’s.

At this point, the victim still did not want to call the police. Instead she
went to her gynecologist. However, the doctor refused to see her as the
office was not set up to deal with rape kits. The victim’s boyfriend also
called a doctor friend to see the victim, but he was told that the victim
needed to go to the Rape Crisis Center. Her boyfriend took the victim to
the center where she was examined. She provided details about the rape,
as well as about past sexual abuse. Specifically, she told the examiner
that when she was between ten and twelve, on multiple occasions, she
was sexually abused by her mother’s best friend’s dad. She recalled that
after each instance, she would return to the living room as if nothing had
occurred. The victim did not ever ask anyone for help.

During the examination, Nina Sublette, a family nurse practitioner,
observed several acute injuries on the victim’s anus, one of which was
still bleeding. Ms. Sublette believed that the manner of the injury was
consistent with the victim’s statement that she had been raped. In
addition to the bleeding laceration, the victim had two other anal injuries
and friction injuries. Ms. Sublette collected evidence from inside and
outside of the victim’s vagina and anus, which she packed in a rape kit
and sent for testing.

Following the examination and collection of evidence, the victim spoke
with police at the crisis center. She was unable to identify the defendant
or give a detailed description. The victim took the clothes she had been
wearing at the time of the rape to the center the following day.

The testing done upon the evidence collected revealed semen and sperm
in the vaginal smear and semen in the anal swab. A DNA profile based
upon the recovered semen was generated and later uploaded into the
Tennessee Bureau of Investigation’s (“TBI”) CODIS system. Years
later, Sergeant Stephen Wilkerson was informed that a match to the
profile entered in the victim’s rape case had been found. He contacted
the victim, who was currently living out of state, and she flew to
Tennessee to be interviewed. Sgt. Wilkerson also began seeking the
defendant, and, upon locating him, executed a DNA search warrant to
obtain a saliva sample from him. The sample was sent to the lab for re-
testing to ensure an accurate match. The positive match was confirmed.



                                   -4-
In 2011, the defendant was indicted by a Shelby County grand jury for
one count of aggravated rape. He proceeded to trial in 2012. Prior to the
beginning of the trial, the defendant filed a motion requesting that the
jury be allowed to travel to the crime scene at Alfred’s in order to see the
size and dimensions of the restroom. The State protested, arguing that
the trip would not assist the jury’s determination and would waste both
time and resources. The court denied the motion, but noted that the
motion could be reconsidered if the issue became important during the
presentation of the evidence.

At trial, the State presented multiple witnesses who testified to the above
account of the evening and subsequent investigation. Afterwards, the
defendant called Brian Bazar, the general manager of Alfred’s. He
described the layout of the restaurant, including the area surrounding the
restrooms. A diagram of the restaurant and recent pictures were shown
to the jury to assist them as Mr. Bazar detailed the layout of the area.

The only other witness called by the defense was the defendant himself.
He did not deny that he had in fact had sexual relations with the victim in
the restroom at Alfred’s on the night in question. However, he portrayed
the act as consensual between the parties. The defendant testified that, at
the time, he was employed in the Community Relations Department with
the Memphis Redbirds. He further claimed that, after hours, he also
worked with several of the players as a bodyguard. He testified that on
the night in question, he had gone to Alfred’s with ball players, Jason
Karnuth and Keith McDonald, as they often did. He stated that around
12:30 p.m., the victim approached him as he was standing at the bar and
asked if he knew where she could get cocaine. According to the
defendant, he then asked the victim what she would do for the cocaine,
and she responded by inviting him to follow her. The defendant
maintained that the victim entered the men’s restroom, sat on the toilet,
and began performing oral sex on him. He claimed that, after he had
achieved an erection, the victim pulled down her pants, put one leg on
the toilet set, and they had consensual vaginal intercourse. The
defendant denied that he had penetrated the victim’s anus. The
defendant further testified that the victim never said to stop and was, in
fact, “moaning in pleasure.” He claimed that he ejaculated on the
victim’s back. The defendant also testified that two of the baseball
players he was with that evening saw what occurred in the stall.

 Afterwards, in the defendant’s version of events, the victim again asked
the defendant about the cocaine. He claimed to have told her that he
didn’t have any and walked out. He testified that he and his group were

                                   -5-
        later standing outside of Alfred’s when they were approached by the
        victim and her friends. He claimed that they demanded that the
        defendant get cocaine for the victim. The defendant testified that a
        police officer intervened, and the confrontation ended. He claimed to
        have never seen the victim again.

        In rebuttal, the State called three former Memphis Redbird players to the
        stand, specifically the ones the defendant claimed were present the night
        of the rape. Each denied that the defendant had ever served as their
        bodyguard. The players did acknowledge that they knew the defendant
        and had occasionally gone out with him, but each adamantly testified
        that they were not with the defendant on the night in question and had
        never watched him have sexual intercourse in a restroom at Alfred’s.
        Questioning revealed that two of the players were no longer in Memphis
        when the crime occurred.

State v. Wright, No. W2013-00433-CCA-R3-CD, 2014 WL 1168579, at *1-4 (Tenn.
Crim. App. Mar. 21, 2014)

Post-Conviction Hearing

        Eric Hulbert testified that he is a photographer in downtown Memphis, and he
knew Defendant from seeing him sing at “Wet Willies,” a karaoke bar. Mr. Hulbert
recalled a night in April 2002 when he went into the men’s restroom at Alfred’s night
club and heard someone moaning. He said that he stepped up on a toilet, looked over the
stall, and saw Defendant and a Caucasian woman having sex. Mr. Hulbert testified that
Defendant was standing up, and the woman was bent over, and their pants were down.
From his perspective, the act seemed to be consensual, and he did not hear the woman
scream or yell for help. He also noted that she did not appear to be restrained. Mr.
Hulbert did not see Petitioner and the woman enter the restroom nor did he hear any of
their conversations beforehand. He did not hear anything else after he left the men’s
room, and he left Alfred’s and went home. Mr. Hulbert testified that he never heard that
Petitioner had been charged with raping the victim. He thought that he was first
contacted about the case in 2015 in connection with the post-conviction hearing. He said
that he had never heard trial counsel’s name.

       On cross-examination, Mr. Hulbert testified that he had seen Petitioner singing at
Wet Willies approximately six times but they never had any conversation. He said that
he did not know Jason Karnuth or Keith McDonald. Mr. Hulbert testified that he did not
know the circumstances that brought Petitioner and the woman into the restroom, and he
did not know what had been happening in the restroom before he heard the moaning. He
said that he watched Petitioner and the woman having sex for two to three minutes, and
he did not see anyone else enter the bathroom. Mr. Hulbert agreed that the woman was

                                          -6-
much smaller than Petitioner. He did not recall if police attempted to contact him after
the incident or if they left a message on his cell phone. Mr. Hulbert testified that he never
checked his messages “back then.”

       When asked by the trial court if watching two people have sex for two to three
minutes was “the normal kind of stuff that you do,” Mr. Hulbert replied, “No, sir.” He
told the trial court that the incident happened on a Tuesday in April of 2002, and he did
not know Petitioner’s name at the time. The prosecutor also asked Mr. Hulbert if being
on top of the bathroom stall for two minutes watching two people have sex was normal,
and he replied, “I was younger.”

       Petitioner testified that trial counsel was ineffective for failing to call Eric Hulbert
as a witness at trial. He said:

        I know him from - - like when I worked for the Red Birds I was
        downtown. I lived downtown and my life was downtown, so I saw him
        in passing all the time. And like he said I sang at Wet Willies every
        Tuesday, Thursday, and Sunday’s like - - so he took pictures across the
        street from Wet Willies so everybody know they call him “Picture Man.”

        And like he said, like I didn’t know exactly his name but I know that he
        took pictures and his names and stuff was all down Beale Street. So I
        know him by when I walked by him I’d say what’s up, Picture Man.

        And he’ll come in there see me singing and what he’s referring to when
        like you say when I sing I’m an entertainer. I don’t just sing, I put on a
        show. That’s why it’s easy to remember somebody six foot, three-
        hundred pounds putting on a show.

         Petitioner believed that Mr. Hulbert was important to his case because his defense
was that the act was consensual, and he knew that Mr. Hulbert saw him having sex in the
bathroom stall with the victim. Petitioner claimed that he would not have testified at trial
if Mr. Hulbert had been called as a witness. He acknowledged that he had told police that
in addition to Mr. Hulbert, three former players for the Memphis Red Birds: Lou Lucca,
Keith McDonald, and Jason Karnuth, were also in the bathroom and witnessed him
having sex with the victim. He later told police that he was mistaken about Mr. Lucca
who was not even in Memphis at the time. At trial, Mr. Lucca, Mr. McDonald, and Mr.
Karnuth denied witnessing the incident, which Petitioner said hurt his case. Petitioner
testified that Mr. Hulbert left the bathroom before Mr. McDonald and Mr. Karnuth
walked in.

      Trial counsel testified that she had been practicing criminal law for twenty years,
and she had handled between eighty and ninety jury trials. She met with Petitioner

                                             -7-
numerous times before trial to discuss his case. Trial counsel testified that she also had
co-counsel during trial who sat as “second chair.” After speaking with Petitioner, trial
counsel developed a defense theory of consensual sex.

       Trial counsel testified that Petitioner provided her with a “laundry list of people to
contact,” including Mr. Hulbert. She noted that since Petitioner was in custody he could
not remember names, addresses, and phone numbers. Therefore, she made contact with
his family to obtain the information. Her investigator, A.L. Gray, attempted to locate Mr.
Hulbert by running searches on “Memphis Light, Gas, and Water, JSS,” and criminal
records databases. Trial counsel testified that Mr. Gray located Mr. Hulbert at the home
of Mr. Hulbert’s mother and interviewed him. Trial counsel wanted to subpoena Mr.
Hulbert for trial. She testified:

        After I got the investigation, I reviewed it, I sat down and spoke with my
        investigator because I often rely upon my investigator, what their
        impressions are about a person, how willing they are to serve as
        witnesses, and also determine if there’s anything they would say that
        might harm my client’s case. So, after speaking with my investigator, I
        reached out. I made phone calls to Mr. Hulbert, but I was never able to
        contact him. So, I, once again, asked my investigator to try and reach
        out again after I was unsuccessful in locating Mr. Hulbert, to reach out
        again - - but he was also unsuccessful. So, all the prior contact that we
        had for Mr. Hulbert sort of dried up and he went back to the mother’s
        house in an effort to locate him, but that was also unsuccessful because
        Mr. Hulbert didn’t live with his mother. It just was a catch him at his
        mom’s house kind of thing.

When asked if she would have subpoenaed Mr. Hulbert to court if the investigator had
found him, trial counsel testified: “Well, I wanted to talk further with him. I feared that
Mr. Hulbert might actually have photographs of the sexual encounter that occurred and I
was trying to eliminate that possibility because I didn’t want to come up with any
evidence that could be used to convict [Petitioner].” Trial counsel acknowledged that a
report prepared by her investigator from an interview with Mr. Hulbert on January 3,
2012, indicated that Mr. Hulbert did not take pictures of the incident.

       On cross-examination, trial counsel testified that Mr. Gray, was an excellent
investigator who was with the Memphis Police Department for more than thirty years,
and he had worked there as a homicide detective. Trial counsel said that she attempted to
contact Mr. Hulbert after Investigator Gray met with him because she felt that Mr.
Hulbert may have been a witness necessary for the defense. She said:

        That’s why I tried to call him and talk to him myself. I like to follow up.
        I don’t just rely on the investigators reports because, when you have a[n]

                                            -8-
        investigator talk to you, there’s a different story, often, from when the
        attorney talks to you and asks are you willing to testify to this at trial.

However, trial counsel was unable to reach Mr. Hulbert. She said that she did not
attempt to subpoena Mr. Hulbert at that point because her “philosophy is with such a
serious case as this, if the witness is not cooperating with me before trial, I will not put a
witness on the stand because I don’t know which way they are going to land. I don’t
know if he’s going to land for the prosecutor or is he’s going to land for the defendant.
And I do not put witnesses on the stand that I have not talked to.” Trial counsel told the
post-conviction court that Petitioner only provided her with Mr. Hulbert’s name.
Petitioner did not have any other contact information for Mr. Hulbert.

Analysis

      Petitioner contends that trial counsel was ineffective for failing to call Eric Hulbert
as a witness at trial. More specifically he asserts that Mr. Hulbert was a “possible eye
witness to the sexual encounter in the bathroom” between Defendant and the victim, and
he “could have buttressed [Petitioner’s] claims that this was consensual sex.”

        In a post-conviction proceeding, the burden is on the Petitioner to prove his facts
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f); see Dellinger v. State,
279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound by the post-conviction
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally,
“questions concerning the credibility of 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
post-conviction court. Id. Because they relate to mixed questions of law and fact, we
review the post-conviction court’s conclusions as to whether counsel’s performance was
deficient and whether that deficiency was prejudicial under a de novo standard with no
presumption of correctness. Id. at 457.

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 205, 280 L.Ed. 2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
“[A] failure to prove either deficiency or prejudice provides a sufficient basis to deny
relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).

      A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard

                                            -9-
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,
466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated
once the petitioner establishes “‘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. at 370 (quoting Strickland, 466 U.S. at 694). In reviewing counsel’s
performance, the distortions of hindsight must be avoided, and this Court will not second-
guess counsel’s decisions regarding trial strategies and tactics. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was
unsuccessful. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Rather, counsel’s alleged
errors should be judged from counsel’s perspective at the point of time they were made in
light of all the facts and circumstances at that time. Id. at 690, 104 S.Ct. at 2066.

        To succeed on a claim of ineffective assistance of counsel for failure to call a
witness at the trial, a petitioner should present that witness at the post-conviction hearing.
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “As a general rule, this is
the only way the petitioner can establish that . . . the failure to have a known witness
present or call the witness to the stand resulted in the denial of critical evidence which
inured to the prejudice of the petitioner.” Id. Once a petitioner presents a witness at a
post-conviction hearing who he claims should have been called at the trial, the post-
conviction court must determine whether the testimony would have been (1) admissible
at the trial and (2) material to the defense. Pylant v. State, 263 S.W.3d 854, 869 (Tenn.
2008). The court is justified in finding that counsel was not deficient by failing to call a
witness if it determines that the witness’s testimony would have been inadmissible at the
trial or that, even if admissible, would not have materially aided the petitioner’s defense
at the trial. Id. If the proffered testimony is both admissible and material, the post-
conviction court must access the credibility of the witness. Id. at 869-70.

      Concerning trial counsel’s failure to call Mr. Hulbert as a witness, the post-
conviction court found:

        [Trial counsel] made every effort to locate Mr. Hulbert prior to trial as
        she wanted to speak to him personally before calling him as a witness.
        She also testified that both she and her investigator were unable to get in
        touch with Mr. Hulbert, and that the one contact her investigator had
        with him was an instance when he got lucky and caught Mr. Hulbert
        visiting his mother’s house. To prevail on an ineffective assistance of
        counsel claim with regard to the failure to subpoena or produce a
        potential witness, the defendant must (1) produce the witness at the post-
        conviction hearing, (2) show that trial counsel could have located the
        witness, and (3) elicit both favorable and material testimony from the
        witness. Denton v. State, 945 S.W.2d 793, 802-803 (Tenn. Crim. App.

                                            - 10 -
1996)(emphasis supplied). Petitioner gave his attorney no address or
phone number for Mr. Hulbert. [Trial counsel] and her investigator
made extensive efforts to try to track down Mr. Hulbert, but could not do
so after the one lucky encounter with him. In the post-conviction
evidentiary hearing, Petitioner failed to show that Mr. Hulbert could
have been located for the trial. Petitioner has failed to show “deficient
performance” for two reasons. First, he has failed to show that the
witness could have been located or that counsel’s actions in trying to
locate the witness fell below the standard level of competence required
of attorneys in criminal cases. Second, [trial counsel’s] decision not to
utilize a witness without having first talked to that witness is a tactical
decision. Petitioner has failed to show that this “tactical decision” fell
below an objective standard of reasonableness and outside the wide
range of reasonable professional assistance considering all the facts and
circumstance of the present case. Petitioner has failed to establish
“deficient performance.”

In addition, Petitioner has failed to establish “prejudice.” Under the
particular facts and circumstances of the present case there is no
“reasonable probability” the additional testimony of Mr. Hulbert would
have altered the outcome of the case. Petitioner contended at trial that he
had consensual vaginal sex with the victim in the bathroom of Alfred’s.
He specifically denied any penetration of the victim’s anus. On the other
hand, the victim testified as to both non-consensual vaginal and anal
penetration. Significantly, the victim’s version of the sexual penetration
was corroborated as semen was found in the victim’s anus and an
examination revealed recent injuries to her anus. In addition, the proof
adduced during the trial indicated that the Petitioner at one time had told
the police that a Memphis Redbird, Lou Luc[c]a, had also witnessed the
consensual sex in the bathroom as well as the confrontation outside the
nightclub. Significantly, Mr. Luc[c]a testified at the trial that he was not
on the Redbirds roster at the time of this incident and not in Memphis.
Accordingly, the proof was such as to justify a conclusion that the
Petitioner had lied in his efforts to manufacture a witness to corroborate
his story. Furthermore, Petitioner also named Jason Karnuth and Keith
McDonald as ballplayers who also witnessed the consensual sex in the
bathroom. Both testified at trial that they did not witness any such
incident. They also both testified that Petitioner was not a “bodyguard”
with the Redbirds as he had boasted in his testimony and that he was a
mere “intern” with the organization.

When you consider that fact that it was abundantly clear to the jury that
Petitioner was willing to “manufacture” witnesses to the event and the

                                   - 11 -
        fact that he had a problem with the conflicting scientific testimony as to
        anal penetration, Mr. Hulbert’s testimony would not have made a
        difference for several reasons. First, Mr. Hulbert testified in the post-
        conviction evidentiary hearing that no one else was in the bathroom
        when he observed the sex. This contradicts Petitioner’s allegation that
        ballplayers Karnuth and McDonald witnessed the incident. If Hulbert’s
        testimony is taken as true, this corroborates the testimony of Karnuth and
        McDonald that they did not witness the event and it became clear that
        Petitioner manufactured three witnesses to the event. Second, Mr.
        Hulbert testified in the post-conviction evidentiary hearing that he never
        heard about Petitioner being charged with rape until being subpoenaed
        for the post-conviction case, a fact that is obviously not true as he was
        spoken to on one occasion by the public defender investigator.

        Simply put, at the trial of this case, the victim’s testimony was credible
        and believed by the jury and by this court. On the other hand, Defendant
        had problems with the scientific evidence not corroborating his claim of
        only vaginal penetration; and it appeared as though he was lying as to
        witnesses who could back up his story. There is no reasonable
        probability that Mr. Hulbert’s testimony would not [sic] have changed
        the outcome.

        The record supports the post-conviction court’s findings. Trial counsel made a
strategic decision not to call Mr. Hulbert as a witness. Trial counsel testified that
Petitioner did not provide her with any contact information for Mr. Hulbert, and her
investigator, Mr. Gray, happened to find Mr. Hulbert on one occasion at his mother’s
house, and Mr. Gray interviewed him. Trial counsel explained that it was her practice to
personally interview witnesses before calling them to testify at trial. She said, “I like to
follow up. I don’t just rely on the investigators reports, because, when you have a[n]
investigator talk to you, there’s a different story, often from when the attorney talks to
you and asks are you willing to testify to this at trial.” Trial counsel made attempts to
locate Mr. Hulbert to talk to him face to face but she was unable to do so, and her
investigator was also unable to locate Mr. Hulbert a second time. Because trial counsel’s
decision not to subpoena Mr. Hulbert as a witness was based on the unsuccessful
attempts to locate him and to interview him, trial counsel’s strategic decision is entitled to
deference. Obviously, without an address, a subpoena would be useless. A lawyer’s
decision to personally evaluate both the content of the possible testimony and the
credibility of a witness before calling a witness to testify is a classic example of a proper
tactical decision. Trial counsel’s performance in this area was not deficient, and
Petitioner is not entitled to relief on this issue.




                                            - 12 -
       Having concluded that the post-conviction court was correct in concluding that
Petitioner failed to prove deficient performance by his trial counsel, there is no need to
address the prejudice prong. Goad, 938 S.W.2d at 370.

                                    CONCLUSION

      Based upon consideration of the foregoing and the record as a whole, the post-
conviction court’s denial of the petition for post-conviction relief is affirmed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




                                          - 13 -
