                                                                                          05/19/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 2, 2017

                   KELVIN WINN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 09-04902       James C. Beasley, Jr., Judge
                      ___________________________________

                           No. W2016-02200-CCA-R3-PC
                       ___________________________________


The Petitioner, Kelvin Winn, was convicted of first degree felony murder and received a
life sentence. He filed a petition for post-conviction relief, which the post-conviction
court denied. On appeal, the Petitioner argues that trial counsel’s performance was
deficient for failing to: (1) obtain an enhanced version of the surveillance video of the gas
station; (2) proffer actual evidence of the Petitioner’s height to the jury; (3) submit the
Petitioner’s clothing to be tested for blood; and (4) investigate the State’s jailhouse
informant for possible impeachment evidence. The Petitioner asserts that he was
prejudiced by trial counsel’s deficient performance because, absent these deficiencies, the
jury would not have convicted the Petitioner. Discerning no error in the post-conviction
court’s decision, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

Bryan R. Huffman, Covington, Tennessee, for the appellant, Kelvin Winn.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                        I. Factual and Procedural Background

                                       Jury Trial

       At the Petitioner’s trial, the following proof was presented, as summarized by our
court in its opinion on the Petitioner’s direct appeal:

             This case arises out of the attempted robbery and shooting of the
      store clerk, Abdallah “Zack” Assaedi, at Sam’s Food Market in Memphis
      on November 21, 2008, for which the [Petitioner] was charged with one
      count of first degree felony murder.

                                      State’s Proof

             Faheid Alsidi testified that the victim was his brother, and he was
      notified on November 21, 2008, that his brother had been shot and killed.

             Dr. Marco Ross, a forensic pathologist with the Shelby County
      Medical Examiner’s Office, testified that he performed the autopsy on the
      victim. Dr. Ross noted that the victim suffered a gunshot wound to his left
      upper eyelid, with the bullet perforating the skull in the brain, which he
      determined to be the cause of death.

              Sergeant Andrew Brown with the Memphis Police Department
      testified that he was assigned to uniform patrol the day of the shooting and
      was dispatched to the scene. When he and his trainee partner arrived,
      Sergeant Brown met with three witnesses who said that the store clerk had
      been shot. He went behind the counter and felt that the victim had “a very
      light pulse.” He secured the scene and talked briefly with the witnesses
      before separating them to insure “the integrity of their information.” None
      of the witnesses could identify the shooter or provide any descriptive
      information aside from a description of the clothing the shooter was
      wearing.

             Myron Jones testified that he was a graduate student living in
      Memphis at the time of the shooting. He went to Sam’s Food Market the
      morning of the shooting to purchase a newspaper and some food, and two
      other customers were in the store at that time. An individual wearing a
      Halloween mask came into the store, ran up to the front counter, and said,
                                          -2-
“It’s a robbery . . . .” As the victim raised his hands, the gunman shot him
in the head, and Jones dropped to the floor. The gunman then demanded
money from Jones, and Jones gave him the two five-dollar bills in his hand.
When the gunman stepped behind the counter to go to the cash register,
Jones got up and ran out of the store to his home. Jones talked to his pastor
and then called the police and later gave a statement. Jones identified
portions of the surveillance video and still photographs taken from the
footage. On cross-examination, Jones said that he only got to look at the
gunman for “a minute[ ] or two” and that his face was covered with “a
Halloween mask with slits over his eyes.” In looking at one of the
photographs, Jones noted that the gun was in the gunman’s left hand.
However, he acknowledged that he had incorrectly stated in his statement
to the police that the gun was in the gunman’s right hand.

       The video showed the suspect approach Sam’s Food Market but stop
in the alcove next to the entrance for several minutes. The masked man
then entered the store, shot the victim, took cash from Jones, tried to open
the cash register, and fled the scene. Still photographs taken from the video
detailed that the man was wearing dark clothing, a mask, and white gloves
and that he shot the victim with a gun held in his left hand.

       Joseph Mario Williams testified that he worked at Sam’s Food
Market in November 2008. On the morning of November 20, the day
before the shooting, Williams and the victim were working in the store, and
Williams started to exit the store to clean up the grounds outside. As he
was walking out the front door, Williams noticed “a guy with a dark
sweater, or coat on, and he had the hood up, he had his hands in his pocket
and his head down . . . . [H]e lift[ed] up his head and he had a mask on.”
When the masked man saw Williams, he turned around and walked away
from the store. The mask was clear plastic, allowing Williams to discern
that the man was African–American, and had a “smiley face on it.”
Williams estimated that the man was 5’8”. He called the police and
reported the encounter that day.

       Williams testified that, the following morning, he arrived at the store
shortly after 7:00 a.m. He was working in the deli area around 8:30 when
the robbery and shooting occurred. As he was hiding after the shooting,
Williams observed that the gunman was the same man who had been at the
store the previous day, noting he had on “[t]hat mask, the clothing, same
clothing, hood on and that mask, that clear mask with that smiling face on
it[.]” He saw the man trying to open the cash register. When the register
                                    -3-
would not open, the man stepped over the victim’s body, picked up some
money off the floor, and ran out of the store. Williams identified portions
of the store’s surveillance video and still photographs taken from the
footage in his testimony.

        Patricia Jean testified that she lived next door to Sam’s Food Market
at the time of the shooting and was walking to the store around 8:30 a.m. on
the day thereof. As she passed an alcove between her house and the store,
she noticed a man wearing a black hooded sweatshirt, jeans, and black
shoes sitting in the alcove with his hands in his pockets. She was only able
to see the front part of the man’s face because he had his hood up, but she
saw that he had a “little spot,” such as a birthmark or freckle, on the right
side of his face. The man asked her for a quarter, to which she responded
that she would see if she had one when she returned from the store.

         Jean testified that she went in the store and saw Williams, the victim,
and a man she knew as “Brother.” When she came out and passed the
alcove, the man again asked her for a quarter, but she told him that she did
not have one. She said that the second time, the man “raised his head up a
little bit more, so [she] could see a little bit better, but that’s it. Everything
else [wa]s the same.” She returned to her house after talking to a friend,
and the police arrived a couple of hours later to investigate the shooting at
the store. Jean was taken to the police station, where she spoke with
Sergeant James Terry Max and relayed her encounter with the man outside
the store. After giving her statement, Sergeant Max gave her a ride home
from the station, during which she recalled the birthmark on the man’s face
and told the officer that she could identify the man who asked her for
money.

        During the course of the investigation, officers showed Jean five
different photographic arrays, on November 24, 2008, two on November
29, 2008, January 9, 2009, and January 11, 2009, each containing six
pictures. Jean did not observe the individual who had asked her for money
in any of the first four arrays; however, she was able to make an
identification from the final array. Jean identified the [Petitioner] in court
as the man she spoke with outside of Sam’s Food Market the morning of
the shooting.

        Jean also identified portions of the store’s surveillance video and
still photographs taken from the footage in her testimony. She identified
herself and the man who asked her for money in several stills, including
                                      -4-
one that showed the man entering the market wearing gloves within the
minutes preceding the shooting.

        On cross-examination, Jean admitted that the only person in the final
photographic array with a mole, birthmark, or freckle on the right side of
his face was the [Petitioner] and that she received a $1,000 CrimeStoppers’
tip after making an identification. However, she was not apprised that she
would receive money for making an identification until after she had
already identified the [Petitioner]. Jean admitted that when the man outside
the store asked her for a quarter, she kept walking and did not stop to talk to
him, explaining that she talked to him while looking over her shoulder as
she continued to walk. She estimated that she talked to him for less than a
minute on her way in and out of the store.

       ....

        Officer Darnell Gooch with the Memphis Police Department
testified that he was directed to a residence by homicide investigators on
January 10, 2009, to get information from the [Petitioner] so he could be
contacted in the future. Officer Gooch noted that the [Petitioner] wrote
down his name, birth date, and social security number using his left hand.
Officer Gooch recalled that the [Petitioner]’s hair was “in braids, going to
the back and it was kind of short above the collar.”

       ....

       Trinika Meredith, with the Shelby County Sheriff’s Office, testified
as keeper of records to the dates and locations that the [Petitioner] and
Antonio Johnson were housed in the Shelby County Jail. From February 6,
2009 until February 11, 2009, the two were housed on the second floor, a
floor designated for inmates with medical conditions, in the same pod. The
two were allowed out of their cells for six hours every day, along with other
inmates of the pod level. On February 11, 2009, Johnson was moved to the
fourth floor but returned to the second floor on February 13, again in the
same pod as the [Petitioner], where they both remained until March 4,
2009.

       Antonio Johnson, who acknowledged a rather extensive criminal
history, testified that he contacted the Memphis Police Department on
February 12, 2009, to give them information concerning the [Petitioner].
He explained that he met the [Petitioner] in court on February 6, 2009, and
                                     -5-
the [Petitioner] “was just blabbing off at the mouth about what was going
on.” The [Petitioner] was moved into the same pod as him later that night
and begun discussing the details of his case with Johnson.

        Johnson testified that the [Petitioner] told him that, in November
2009, he went to a store to commit a robbery but was unable to because “he
was detoured by some people.” The second time, the [Petitioner] went in
with his gun in hand, demanded money from the cash register, and shot the
clerk in the face. The [Petitioner] said that there was a customer in the
store who “fell to the ground” upon seeing the [Petitioner], and the
[Petitioner] took money from him before fleeing the store. The [Petitioner]
told Johnson that he was wearing a “black hoody, some gloves, [and] some
black Gucci pants” and that his hair was “in a little Afro like then, or in
braids” at the time of the robbery and shooting. The [Petitioner] also
indicated that he wore a mask.

        Johnson testified that he contacted the homicide bureau and
eventually spoke with Sergeant Max. He said that he had an occasion to
talk to the [Petitioner] again, after which he wrote down a few notes, and
the [Petitioner] told him that his brother dropped him off at the store prior
to the incident in a four-door, white 1999 Mercury. Johnson assisted the
[Petitioner] in trying to contact his brother “to use him as an alibi.” On
February 12, 2009, he was shown a photographic array, from which he
identified the [Petitioner]. Johnson stated that he was not prompted by the
police or anyone in the prosecutor’s office to obtain incriminating
statements from the [Petitioner].

        On cross-examination, Johnson testified that the day after he spoke
to Sergeant Max, he was moved to general population on the fourth floor of
the jail. When he got a chance to the use the phone, he called Sergeant
Max to see if he was able to get him moved back to the second floor
because he believed that his “life was in jeopardy in that pod, because [the
Petitioner] was affiliated with the G[angster] D[isciples].” However, he
had no expectation that he could receive a favor from Sergeant Max.
Johnson said that it was his idea to take notes of his second conversation
with the [Petitioner], and his getting moved back to the second floor was
not a “favor for . . . taking the notes.” Johnson acknowledged that he was
taking several prescription drugs, including one for hallucinations, at the
time of his conversations with the [Petitioner].



                                    -6-
        Sergeant Eric Freeman with the Memphis Police Department
testified that, on January 13, 2009, Sergeant Max, the lead investigator on
the case, requested that he look for a white Mercury Sable. The car was
parked in front of 1620 Pennsylvania Street and was owned by Linda Winn.

        Sergeant James Terry Max with the Memphis Police Department
testified that he responded to the scene at 10:30 a.m. on November 21,
2008, and served as the lead investigator on the case. Officers downloaded
the video from the store’s surveillance system. The video from the outdoor
cameras showed an individual “walking . . . towards the store. The subject
walked into a little alcove, a little covered area, where he was out of view.
And . . . at least [ ] two customers walk[ed] by the subject and actually
look[ed] at the subject.” They determined who the two customers were
who talked to the subject and interviewed them. . . . . The other customer,
Dallas Jackson, said that he could not identify the individual because he did
not get a good look at his face.

       ....

       Sergeant Max testified that he created a fifth photographic array, this
one containing the [Petitioner]’s picture. Because the [Petitioner] had an
obvious birthmark on his face, he attempted to find other individuals who
had “distinctive markings on their face[s],” and those placed in the array
bore some sort of discoloration or obvious anomaly in their complexion.
The array was shown to Patricia Jean on January 11, 2009, and, within
three seconds, she identified the [Petitioner] as the man she spoke with
outside Sam’s Food Market the morning of the shooting.

        Sergeant Max testified that, when the [Petitioner] was arrested and
questioned, he denied any involvement in the robbery and shooting. The
[Petitioner] claimed that he was in Tunica, Mississippi, around
Thanksgiving 2008, as he and his brother had gone there to visit their
cousin, Yolanda Winn. The [Petitioner] was not sure of the exact date he
went to Tunica but recalled that he returned to Memphis on Thanksgiving
Day. The [Petitioner] told Sergeant Max that his mother and girlfriend
could verify that he went to Tunica. However, Sergeant Max was unable to
verify the alibi, as those he questioned were “[v]ery vague, very vague, no
dates . . . . No[ ] one could get [him] the exact date and time frame.” The
[Petitioner] later requested to speak with Sergeant Max again and, during
the conversation, claimed that his brother actually committed the crime.

                                    -7-
       Sergeant Max noted that they received information that the suspect
“had possibly gotten out of a white four-door, like, Pontiac Sunfire type
vehicle,” and it was later confirmed that the [Petitioner]’s mother owned a
four-door, white 1999 Mercury Sable. In addition, on February 12, 2009,
Antonio Johnson, an inmate in the jail, called and provided the same
information as he testified to above, which Sergeant Max determined to be
credible.

                          [The Petitioner’s] Proof

        Yolanda Winn, the [Petitioner]’s cousin, testified that she picked up
the [Petitioner] at a liquor store in Memphis on November 17 or 18, 2008,
and took him to stay with her in Tunica for “a couple of weeks.” On
November 20, during that two-week period, they went back to Memphis for
the [Petitioner] to get “some emergency food stamps” but returned to
Tunica the same day. Winn explained that the [Petitioner] does not drive
because he has an eye problem. Her sister, Latonya Murrell, brought the
[Petitioner] back to Memphis “[a]round the 27th.”

       Jerold Conley testified that he was outside Sam’s Food Market on
the morning of November 21, 2008, and did not recall seeing anyone other
than Patricia Jean and Dallas Jackson.

        Dallas Jackson testified that he was present at Sam’s Food Market
on the day of the shooting. He recalled speaking to someone who was
sitting in the alcove outside the market, but he could not see the man’s face
and was therefore unable to make an identification when shown a
photographic array. He was able to discern that the man “was very dark in
complexion.”

       Linda Winn, the [Petitioner]’s mother, admitted that she owned a
white 1999 Mercury Sable. She said that the car was “running hot” and
needed a water pump at the time of the offense; therefore, it was parked in
her carport and no one was driving it.

      Latoya Winn, the [Petitioner]’s sister, testified that she had a baby
on November 20, 2008, and that the [Petitioner] did not visit her because he
was out of town.

       Lakeshia Atkins testified that she saw the [Petitioner] on November
21, 2008, in Memphis when the [Petitioner] was in town to get food stamps,
                                    -8-
        but she could not recall what time of day she saw him. She and the
        [Petitioner]’s brother, Robert Sutton, went to the hospital that same day to
        visit Latoya Winn, and Sutton was driving his mother’s white Mercury
        Sable, despite it “running hot.”

                Keith Sutton, the [Petitioner]’s brother, testified that Lynette
        Villalpando and Patricia Jean were at his house sometime in the summer of
        2009. Jean saw a picture of the [Petitioner], and she commented that he
        was handsome and did not state that she had identified him “as being a
        killer.”

                Lynette Villalpando testified that she was a friend of the
        [Petitioner]’s family and was with Patricia Jean at the [Petitioner]’s
        mother’s house sometime in 2008 or 2009. She recalled that Jean saw a
        photograph of the [Petitioner] and commented that he was handsome.
        Villalpando found Jean’s comment odd “[b]ecause here you accuse a man
        of murder, but you can’t remember his face and what he looks like.”

                Dr. Jeffrey Newschatz testified as an expert in eyewitness
        identification concerning the issues and concerns with eyewitness
        identifications, including the one in this case.

State v. Kelvin Winn, No. W2011-02568-CCA-R3-CD, 2013 WL 1858629, at *1-7
(Tenn. Crim. App. May 2, 2013), perm. app. denied (Tenn. Oct. 16, 2013). The jury
found the Petitioner guilty of first degree felony murder, and the trial court sentenced the
Petitioner to life. Id. at *1, 7. On appeal, this court affirmed the Petitioner’s convictions.
Id. Our supreme court denied further review.

                                   Post-Conviction Proceedings

        The Petitioner filed a petition for post-conviction relief and argued that he
received ineffective assistance of counsel. At the post-conviction hearing,1 the Petitioner
testified that trial counsel did not allow him to participate in creating his trial strategy and
that trial counsel only visited him twice while he was incarcerated. The Petitioner noted
that trial counsel did not communicate with him other than those two visits. The
Petitioner stated that there were inconsistencies in the State’s proof at trial; for example,
Ms. Jean testified at the suppression hearing that the perpetrator’s birthmark was on the
left side of his face but stated at trial that it was on the right side. Additionally, the

        1
          The record reflects that trial counsel died before the post-conviction hearing; thus, only the
Petitioner testified at the hearing.
                                                 -9-
State’s witnesses were inconsistent about whether the perpetrator was holding a gun in
his right or left hand and about the perpetrator’s height. The Petitioner stated that trial
counsel did not point out these inconsistencies to the jury, nor did he prove the
Petitioner’s actual height.

        The Petitioner testified that he asked trial counsel to obtain an enhanced version of
the surveillance video recorded by the store that was robbed, so that the jury could better
see the perpetrator. Trial counsel informed the Petitioner that he enhanced the video, but
the enhanced version was not shown to the jury or admitted into evidence at trial. The
Petitioner also asked trial counsel to investigate whether any blood was found on the
Petitioner’s clothing and whether any fingerprints were found at the scene; trial counsel
did not investigate this evidence. Regarding the State’s witness, Mr. Johnson, the
Petitioner stated that he learned that Mr. Johnson had testified for the State in other cases.
The Petitioner informed trial counsel of Mr. Johnson’s prior experience as a witness for
the State and asked trial counsel to speak to the prosecutor in his case. Trial counsel
never told the Petitioner whether he spoke to the prosecutor about Mr. Johnson.
Regarding the photographic lineup that the State showed to Ms. Jean, the Petitioner
pointed out to trial counsel that his photograph was the only one where the individual had
a birthmark on his face. However, the Petitioner asserted that he never looked at the
photographic lineup and that trial counsel never showed the lineup to him. The Petitioner
stated that, during trial, counsel would not listen to the Petitioner’s suggestions, and “[i]t
didn’t seem like he was writing at all.” The Petitioner also noted that trial counsel asked
the trial court for a recess during trial to retrieve a cassette tape of a witness’s testimony;
however, trial counsel never retrieved the tape and never played the tape for the
Petitioner. The Petitioner asserted that if trial counsel had used the information provided
by the Petitioner at trial, the jury would not have convicted him of felony murder.

        On cross-examination, the Petitioner stated that, if the surveillance video had been
shown in full to the jury, the video would have been exculpatory evidence proving that
the Petitioner did not commit the offenses at issue. The Petitioner agreed that trial
counsel retained the services of Dr. Neushaff, an expert in identification, to testify at his
trial. The Petitioner stated that some individuals informed him that Mr. Johnson told
them that he testified against the Petitioner to try to get out of jail. He stated that he gave
trial counsel the names of the individuals who heard Mr. Johnson’s statement; however,
trial counsel never followed up with these individuals. The Petitioner asserted that the
State made a “deal” with Mr. Johnson in exchange for his testimony against the Petitioner
and that the State failed to disclose this “deal.” On redirect examination, the Petitioner
agreed that the store’s surveillance video showed that the perpetrator had a mask
covering his face. The Petitioner stated that trial counsel should have argued that, if the
victim’s blood was not on his clothing, then the Petitioner could not have been present
during the offense.
                                            - 10 -
       The post-conviction court questioned the Petitioner, who agreed that trial counsel
argued to the jury that the Petitioner had an alibi defense and that trial counsel called
several of the Petitioner’s family members to testify. The Petitioner also agreed that trial
counsel cross-examined Ms. Jean about her visit to the house of one of the Petitioner’s
family members, where Ms. Jean saw photographs of the Petitioner but did not recognize
him. The post-conviction court noted that, at the hearing on the Petitioner’s motion to
suppress Ms. Jean’s identification, trial counsel argued that the identification should be
suppressed, but the trial court denied the motion.

        Regarding the Petitioner’s assertion that trial counsel should have requested that
his clothing be tested for blood, the post-conviction court found that testing would not
have “change[d] anything to put on proof that there [wa]s no blood on his clothes[.]” The
post-conviction court also found that it was unclear how the clothes would have been
analyzed and whether the trial court would have approved funding for any analysis.
Regarding the Petitioner’s assertion that trial counsel should have obtained an enhanced
version of the surveillance video, the post-conviction court found that “there was no
identification that was made based on the video. The only thing that the video showed
was the mask and maybe a physical description of the [perpetrator] . . . .” The post-
conviction court noted that Ms. Jean’s identification of the Petitioner was the “key” to the
State’s case and that trial counsel thoroughly cross-examined Ms. Jean regarding her
identification. The post-conviction court also found that trial counsel pointed out at trial
that Mr. Johnson had served as an informant and witness for the State on a previous
murder case.

       The post-conviction court denied relief to the Petitioner after concluding that the
Petitioner had “failed to carry his burden of proof as to the ineffective assistance of trial
counsel.” The post-conviction court found that trial counsel “did an outstanding job of
representing the [P]etitioner[]” and “found him to be extremely well prepared both pre-
trial and during trial.” The post-conviction court noted that trial counsel “argued a
motion to suppress the identification of the [P]etitioner in a pre-trial hearing[,]”
“contested the credibility of each witness and extensively cross-examined and attacked
the credibility of the state’s chief identification witness[,]” and “presented a valid alibi
defense.” The post-conviction court also found that trial counsel put on witnesses to
attack the credibility of the State’s witnesses and presented an expert on identification.
The Petitioner’s timely appeal follows.

                                        II. Analysis

       On appeal, the Petitioner argues that the post-conviction court erred in denying
relief because trial counsel’s performance was deficient for failing to: (1) obtain an
                                           - 11 -
enhanced version of the surveillance video of the gas station; (2) proffer actual evidence
of the Petitioner’s height to the jury; (3) submit the Petitioner’s clothing to be tested for
blood; and (4) investigate the State’s jailhouse informant for possible impeachment
evidence. The Petitioner asserts that he was prejudiced by trial counsel’s deficient
performance because, absent these deficiencies, the jury would not have convicted him.

                                    Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). 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].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both 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: (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.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). 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.
                                            - 12 -
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).

        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 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.

        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).

            Failure to obtain an enhanced version of the surveillance video

        The Petitioner asserts that trial counsel’s failure to obtain an enhanced version of
the surveillance video and present it to the jury at trial was deficient and that he suffered
prejudice as a result. In his brief, the Petitioner argues that, on the enhanced video, the
jury “would [have] be[en] able to better view the perpetrator and evaluate his height,
build, and complexion.” The post-conviction court found that “there was no
identification that was made based on the video. The only thing that the video showed
was the mask and maybe a physical description of the [perpetrator.]”

        We conclude that the Petitioner has failed to establish that he was prejudiced by
trial counsel’s failure to obtain an enhanced version of the surveillance video. The record
supports the post-conviction court’s finding that the surveillance video was not a salient
part of the State’s argument that the Petitioner was the perpetrator of the felony murder.
Because the video showed that the perpetrator was wearing dark clothing, a mask, and
gloves, Kelvin Winn, 2013 WL 1858629, at *2, it is unlikely that enhancing the video
would have enabled the jury to better evaluate the perpetrator’s appearance.
Additionally, as the post-conviction court noted, the State’s strongest evidence of the
Petitioner’s identity was Ms. Jean’s identification on the photographic lineup. Further,
the Petitioner did not introduce an enhanced version of the surveillance video into
                                           - 13 -
evidence at the post-conviction hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). The Petitioner has failed to establish how showing an enhanced
version of the video at trial would have altered the jury’s verdict. Because the Petitioner
has failed to establish prejudice, we will not address whether trial counsel’s performance
in this aspect was deficient. See Finch, 226 S.W.3d at 316. The Petitioner is not entitled
to relief on this ground.

                   Failure to proffer the Petitioner’s height to the jury

       The Petitioner asserts that trial counsel’s failure to prove the Petitioner’s actual
height to the jury was deficient. He argues that he was prejudiced by this failure because
Mr. Williams testified that the perpetrator was between 5’8” and 5’9”, and if the jury had
known that the Petitioner was 5’11”, it would not have convicted him. The post-
conviction court did not make specific findings regarding this issue, but, as noted above,
the post-conviction court concluded that trial counsel’s performance was not deficient
and denied relief.

        We conclude that the Petitioner has failed to establish that he was prejudiced by
trial counsel’s failure to proffer evidence of the Petitioner’s actual height to the jury. As
noted above, the State’s strongest evidence of the Petitioner’s identity was Ms. Jean’s
identification of the Petitioner. It is unlikely that actual evidence that the Petitioner was a
few inches taller than Mr. Williams’s description of the perpetrator would have altered
the jury’s verdict. Because the Petitioner has failed to establish prejudice, we will not
address whether trial counsel’s performance in this aspect was deficient. See Finch, 226
S.W.3d at 316. He is not entitled to relief on this ground.

             Failure to submit the Petitioner’s clothing for testing for blood

        The Petitioner additionally asserts that trial counsel’s failure to submit his clothing
to be tested for the presence of the victim’s blood was deficient. He argues that he was
prejudiced by this failure because the lack of the victim’s blood on his clothing would
have established that he was not present during the offense. The State argues that
because the Petitioner was not identified as a suspect of interest in the case until more
than seven weeks after the offense, “[i]t would have been virtually impossible to establish
that any clothing offered by the [P]etitioner for analysis at that late stage was the same
clothing he wore on the day of the robbery/murder.” The post-conviction court found
that testing would not have “change[d] anything to put on proof that there [wa]s no blood
on his clothes[.]” The post-conviction court also found that it was unclear how the
clothes would have been analyzed and whether the trial court would have approved
funding for any analysis.

                                            - 14 -
        We agree with the post-conviction court that the Petitioner cannot establish that he
was prejudiced by trial counsel’s failure to submit the Petitioner’s clothing for testing for
the victim’s blood. As we have noted above, the State’s strongest evidence against the
Petitioner was Ms. Jean’s identification; analysis of the Petitioner’s clothing would not
have contradicted her testimony. Moreover, the Petitioner did not present at the
evidentiary hearing the results of any such testing for the post-conviction court to
consider. The Petitioner has failed to establish that he was prejudiced by trial counsel’s
failure to request testing. Because the Petitioner has failed to establish prejudice, we will
not address whether trial counsel’s performance in this aspect was deficient. See Finch,
226 S.W.3d at 316. He is not entitled to relief on this ground.

         Failure to investigate Mr. Johnson for possible impeachment evidence

        The Petitioner asserts that the State had a “deal” with Mr. Johnson to let him out
of jail if he testified against the Petitioner. The Petitioner testified at the post-conviction
hearing that individuals had informed him that Mr. Johnson said that he lied during the
Petitioner’s trial so that he would be let out of jail. The post-conviction court found that
trial counsel emphasized at trial that Mr. Johnson had served as an informant and witness
for the State on a previous murder case.

        We conclude that the Petitioner has failed to establish that he was prejudiced by
trial counsel’s failure to investigate an alleged “deal” between Mr. Johnson and the State
in exchange for his testimony. The portions of the trial transcripts included in the record
reflect that trial counsel cross-examined Mr. Johnson regarding his previous experience
testifying for the State. The Petitioner offered no evidence to support his allegation that
the State had a “deal” with the Petitioner besides his own assertion. More specifically,
the Petitioner did not present the testimony of the individuals who allegedly heard Mr.
Johnson’s statement. Thus, the Petitioner cannot establish that he was prejudiced by trial
counsel’s performance in this regard. See Black, 794 S.W.2d at 757. Additionally, the
record reflects that trial counsel filed a pretrial motion seeking disclosure of the
“existence, substance, and the manner of execution or fulfillment of any promise,
statement, agreement, understanding, or arrangement (between the State or its agents and
any prosecution witness, cooperating individual, or such person’s attorneys or
representatives) given for the purpose of obtaining said person’s testimony, cooperation,
or disclosure of information,” which the trial court granted. Because the Petitioner has
failed to establish prejudice, we will not address whether trial counsel’s performance in
this aspect was deficient. See Finch, 226 S.W.3d at 316. He is not entitled to relief on
this ground.




                                            - 15 -
                                  III. Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.


                                         ____________________________________
                                         ROBERT L. HOLLOWAY, JR., JUDGE




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