         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  December 4, 2007 Session

                 BOBBY JOE LESTER V. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 02-02080     James C. Beasley Jr., Judge

                                ___________________________

                     No. W2006-02042-CCA-R3-PC - Filed April 7, 2008
                                 _______________________

A Shelby County Jury convicted the Petitioner, Bobby Joe Lester, of attempted first degree
murder, especially aggravated kidnapping, two counts of aggravated assault, and coercion of a
witness. The trial court merged the aggravated assault conviction with the conviction for
attempted first degree murder and sentenced the Petitioner to an effective eighty-five year
sentence. The conviction and sentences were affirmed by this Court on direct appeal. State v.
Bobby Joe Lester, No. W2004-00842-CCA-R3-CD, 2005 WL 1798763 (Tenn. Crim. App., at
Jackson, July 28, 2005). The Petitioner filed a petition for post-conviction relief, amended by
appointed counsel, alleging he did not receive the effective assistance of counsel. The post-
conviction court dismissed the petition after a hearing. On appeal, the Petitioner contends that
he is entitled to post-conviction relief because his trial counsel was ineffective by: (1) failing to
request the jury be instructed on facilitation; (2) failing to adequately argue in the motion for
new trial that his convictions for especially aggravated kidnapping and attempted first degree
murder violate due process, citing State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); and (3)
failing to object to testimony from the victim about a prior rape. The Petitioner also contends
that his appellate counsel was ineffective for failing to argue the Anthony issue on appeal. After
reviewing the issues and applicable authorities, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the Appellant, Bobby Joe Lester.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General;
David Pritchard, Assistant District Attorney General, for the Appellee, State of Tennessee.
                                           OPINION
                                            I. Facts

       After being convicted at trial, the Petitioner appealed his convictions and sentences to
this Court. In that direct appeal, we described the following facts:

       Billie Strong, the victim, testified that she was beaten and raped on April 21,
       2001, by Ervon Blair and Tommy Holmes. After she was discovered, she
       informed the police of the identity of her attackers, resulting in criminal charges
       against the two men. The victim had previously met Blair and Holmes while
       visiting her friend Charles Davis at a rooming house on Foster Street in Memphis,
       where he lived with Blair and Holmes. She also met the [Petitioner] at the
       rooming house, as he was a friend of Blair and Holmes.

                The victim testified that around 11:30 a.m. on June 5, 2001, as she walked
       to Miller’s Grocery Store to use the pay phone, a white transfer truck without the
       trailer, bearing the markings M. S. Carriers, pulled over on the grass beside her
       home. The victim had seen the truck circle her home several times earlier that
       morning as she sat on her front porch. The driver, a man who introduced himself
       as Jody, called her over and offered to give her a ride. The victim entered the
       truck, locked the door, and fastened her seatbelt as instructed. At this point, the
       [Petitioner], whom the victim recognized as “Joe,” pulled back the sleeper curtain
       located behind her and hit her in the throat with a baseball bat. Holmes, who was
       also secreted in the truck’s cab, then beat her with a hammer and asked her why
       she had pressed charges against him. He told her to call Sergeant Colbert, the
       investigating officer, and drop the charges. The victim also testified that after she
       was beaten, the [Petitioner] tried to wrap her in plastic and “snap” her neck. The
       victim also stated that the [Petitioner] and Jody raped her and that her assailants
       forced her to smoke crack cocaine in the truck. While the victim related that she
       had not used cocaine since her rape in April of that year, State’s witness Charles
       Davis testified that the victim had smoked crack cocaine throughout their entire
       fifteen-to-twenty-year close friendship. The last thing the victim remembered
       was lying on the side of the road and somehow rolling out of the truck’s path as
       the truck tried to run her over.

               A motorist driving home from work found the victim, undressed and
       bleeding, in front of an abandoned house on Frayser Boulevard, crawling toward
       the sidewalk and crying for help. The motorist stopped his car and called 9-1-1
       on his cell phone. Officer Keith Seibert of the Memphis Police Department
       responded to the scene and discovered the victim lying half on the grass and half
       on the street in front of 2801 Frayser Boulevard. The victim was coming in and
       out of consciousness.

              The victim suffered life threatening injuries as a result of the beating and


                                               -2-
       entered the hospital in extremely critical condition. At trial, the victim testified
       that as a result of the beating of June 5, 2001, her jaw was broken and her teeth
       were knocked out by the roots. Doctors removed her spleen and inserted three
       iron plates in her head and a rod in her elbow. Additionally, her first, second, and
       third vertebras were compacted forcing her to sleep in a sitting position to prevent
       swelling. Her arm was also partially paralyzed.

               Sergeant L. W. Colburn, who was with the Memphis Police Department’s
       Sex Crimes Bureau at the time of the investigation, was involved in the
       investigation of the victim’s cases. He testified that while hospitalized, the victim
       indicated that Holmes and a man named “Joe” had beaten her on June 5, 2001.
       He presented the victim with a photo spread, and she identified Bobby Joe Lester
       as the perpetrator and wrote, “I’ll never forget the look he gave me when he first
       him me with the bat.”

State v. Bobby Joe Lester, No. W2004-00842-CCA-R3-CD, 2005 WL 1798763, at *1-2 (Tenn.
Crim. App., at Jackson, July 28, 2005).

         The Petitioner filed a timely petition for post-conviction relief, amended by appointed
counsel, alleging that he had not received the effective assistance of counsel. At the hearing on
the petition, the Petitioner’s trial counsel (“Counsel”) testified she represented the Petitioner at
his trial and for his direct appeal. Counsel said she did not request a jury charge on facilitation
because, according to the facts of the case, it was alleged that the Petitioner was the primary
participant. Specifically, the State alleged that the Petitioner made initial contact with the victim
by hitting her with a baseball bat at which time the other man began to beat her with a hammer.
Given these facts, Counsel did not think a facilitation instruction was warranted.

        Counsel agreed that there was some testimony from the victim about a rape, not
involving the Petitioner, that occurred in April of 2001. She said the State alleged, in its case
against the Petitioner, that the attack for which the Petitioner was on trial was a retaliation
against the victim for filing charges against her attackers. Counsel explained that some of the
testimony about the rape was graphic, but she did not object because her theory was that,
because he was not involved in the rape, the Petitioner had no motive to attack the victim to keep
her from testifying at the rape trial. Counsel said she originally thought no mention should be
made of the rape, but she changed her mind when she learned that the State intended to call as a
witness Ervon Blair, who had been involved in the rape. She then thought that the rape evidence
should be admitted because it was “the ultimate impeachment of [Blair] that he would come to
court to give testimony against [the Petitioner] when he’s the one who’s alleged to have
committed the rape that’s the impetus for [the] assault.”

        Counsel testified that, after the trial, she filed a motion for a new trial on the Petitioner’s
behalf. In that motion, she contended that, because the victim entered the truck voluntarily, the
especially aggravated kidnapping was incidental to the attempted first degree murder. Counsel
said she made a due process argument in the motion but agreed the motion did not use the words


                                                 -3-
due process or cite to State v. Anthony, which is accepted as the controlling case on this issue.
She explained that she used the word “incidental,” which was the same wording used by the
Anthony Court.

        On cross-examination, Counsel testified she did not request a facilitation instruction in
part because the Petitioner’s theory of the case was that he had “only seen her around briefly; he
did not know her [and] he was not involved in this matter in any way.” The Petitioner testified
to this effect at trial, denying all involvement. Addressing the rape testimony, Counsel said she
wanted to impeach Blair with this testimony because Blair would have to admit his role in the
2001 rape when testifying, which could cause the jury to find him less believable. Counsel said
that she filed a motion for judgment of acquittal at the close of the State’s proof and again at the
close of her proof, and the trial court denied both motions. Upon questioning from the Court,
Counsel agreed that the trial judge charged the jury about criminal responsibility for the conduct
of another.

        The post-conviction court denied the Petitioner relief, and it is from that judgment that
the Petitioner now appeals.

                                           II. Analysis

         On appeal, the Petitioner contends that the trial court erred when it dismissed his petition
because Counsel was ineffective by: (1) failing to request the jury be instructed on facilitation;
(2) failing to adequately argue in the motion for new trial that his convictions for especially
aggravated kidnapping and attempted first degree murder violate due process, citing State v.
Anthony, 817 S.W.2d 299 (Tenn. 1991); and (3) failing to object to testimony from the victim
about a prior rape. The Petitioner also contends that his appellate counsel was ineffective for
failing to argue the Anthony issue on appeal.

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction
or sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-
30-103 (2006). The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). Upon
review, this Court will not re-weigh or re-evaluate the evidence below; all questions concerning
the credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). A post-conviction court’s factual findings are subject to a de novo review by this
Court; however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-conviction
court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-
conviction court’s conclusions of law are subject to a purely de novo review by this Court, with
no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth


                                                -4-
Amendment to the United States Constitution and Article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong
test directs a court’s evaluation of a claim for ineffectiveness:

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

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

        In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of competence
demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of
ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below
an objective standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(citing Strickland, 466 U.S. at 688 (1984)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should
judge the attorney’s performance within the context of the case as a whole, taking into account
all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149
(Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct from the
attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). In doing so, the reviewing court must be highly deferential and “should indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a petitioner in a criminal case is not
entitled to perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States
v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices applies only if
the choices are informed ones based upon adequate preparation. Id.



                                                 -5-
        If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d
576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994).

                                   A. Facilitation Instruction

        The Petitioner first contends that Counsel was ineffective for failing to request a jury
instruction on facilitation of especially aggravated kidnapping and facilitation of attempted first
degree murder. At trial, the trial court instructed the jury on other lesser-included offenses of the
charged offenses, including attempted second degree murder, attempted voluntary manslaughter,
aggravated kidnapping, and kidnapping. Additionally, the trial court instructed the jury on
criminal responsibility for the conduct of another. The post-conviction court found that Counsel
was not ineffective for not requesting the facilitation instructions, stating:

       [T]he overriding thing that strikes me is the nature of the crime, the testimony
       with regard to [the Petitioner’s] involvement in the crime of the kidnapping issue
       and the attempted murder.

              It is obvious at least to me in a review of these things that I have looked at
       and mentioned that [the Petitioner] was a key player, and I think that’s the
       question for a jury to determine and a trial court to determine in charging lesser-
       included offenses in a light . . . most favorable to [the] lesser-included offense . . .
       .

               ....

                And this is another one of those fact specific cases in my mind that there’s
       no question based upon the testimony and my review of the testimony that [the
       Petitioner] took a very active role in the attempted murder of this lady, and
       obviously the kidnapping, such that I do not see how any reasonable jury could
       look at the facts of this case, not only testimony of the victim as to the beating
       inflicted by [the Petitioner], the attempt to conceal and wrap her body, the attempt
       to break her neck, the rape, all of that would just completely fly in the face of
       somebody [that] did . . . not have the intent to commit the offense of murder in
       the first-degree . . . .

              Whether he had a motive to do it or not, based upon that he wasn’t
       accused in the first rape had nothing to do with his intent to commit the murder.
       Those two are two separate things. The jury might find that he didn’t have a
       motive but [that] doesn’t change the fact that he had an intent to kill her and that’s


                                                 -6-
       the criteria. There’s no law that says you have to prove motive.

               ....

               When you couple the charge of premeditation when you couple that with
       gathering the weapons to be used, gathering the plastic wrap to wrap the body in
       for purposes of disposing of the body, the subterfuge involved in getting her
       inside the truck and the hiding the truck knowing that they were going to get her
       in the truck, and they’re hiding behind a curtain ready to pounce on her and the
       subsequent leaving her out in a field and attempting to run over her body in a
       truck, there’s no question in my mind that a reasonable jury could not have found
       that this was a facilitation of an act that [the Petitioner] had no intent to be
       involved in the actual attempted murder or murder.

               ....

                And in this Court’s opinion based upon what it has read in the transcripts
       of this trial and the other things that I’ve looked at in the trial there’s no question
       in my mind that facilitation should not have been charged in this case [and] that if
       a jury were to have returned a verdict of facilitation, I don’t know that the proof
       would have allowed it to stand quite frankly.

               I think the proof was overwhelming that [the Petitioner] was a principle
       very much involved principle in this particular case and coupled with the fact that
       his defense was it wasn’t me; I wasn’t even there, that even more so heightens the
       fact there’s no basis for a charge of facilitation because the defendant’s defense in
       that case would have to be I was there and participated but I had no intention to
       be involved in the actual end result.

               So if his whole defense was I don’t deny that somebody attacked and beat
       this woman and tried to kill her but it wasn’t me. There’s no way that there’s a
       basis for a charge of facilitation under all of those facts and so the Court would
       find that the failure not only of the Court to instruct on the crime of facilitation
       but on defense counsel to request an instruction on the crime of facilitation is not
       ineffective on behalf of trial counsel and was not error on behalf of the trial court.

The Petitioner asserts the post-conviction court erred in making this finding, arguing that the
following proof at trial was sufficient to support a facilitation instruction: the testimony was
unclear about the Petitioner’s role in preparing to abduct the victim; the jury was instructed on
criminal responsibility for the conduct of another, which, at the time of the Petitioner’s trial,
necessitated a facilitation instruction; the Petitioner had no motive because he did not participate
in the April 2001 rape; and the Petitioner was a follower rather than a leader in the commission
of these offenses.



                                                -7-
        In trials that occurred before January 1, 2002, it was the trial court’s duty to charge juries
as to the law of each offenses included in an indictment whether or not a defendant requested
such an instruction. See T.C.A. § 40-18-110(c) (1997); State v. Page, 184 S.W.3d 223, 229
(Tenn. 2006). In Page, our Supreme Court noted that, under the 1997 version of section 40-18-
110, a defendant was not required to request a lesser-included instruction to assign as error the
trial court’s failure to give such instruction. Page, 184 S.W.2d at 229. Because the trial court
had a mandatory duty to instruct the jury regardless of a request to do so from the defendant, this
Court has previously concluded that defense counsel was not ineffective for failing to request an
instruction on a particular lesser-included offense. Jerome Sawyer v. State, No. 2005-01813-
CCA-R3-PC, 2007 WL 778828, at *20 (Tenn. Crim. App. at Jackson, Mar. 15, 2007); Chivous
Robinson v. State, No. E2005-01036-CCA-R3-PC, 2006 WL 1381511, at *6 (Tenn. Crim. App.,
at Knoxville, May 19, 2006), perm. app. denied (Tenn. Oct. 2, 2006); Jeffery Lee Miller v. State,
No. M2003-02841-CCA-R3-PC, 2005 WL 901130, at *5 (Tenn. Crim. App., at Nashville, Apr.
19, 2005), perm. app. denied (Tenn. Oct. 17, 2005); see also Larry Johnson v. State, W2006-
00345-CCA-R3-PC, 2007 WL 2120184, at *10 (Tenn. Crim. App., at Jackson, July 24, 2007),
perm. app. denied (Tenn. Dec. 26, 2007).

       In 2001, Tennessee Code Annotated section 40-18-110 was amended to provide that
appellate review of jury instructions on lesser-included offenses is precluded if the issue is not
presented in writing to the trial court for determination prior to the trial court’s charge to the
jury. T.C.A. § 40-18-110(c) (2001). The amendments govern all trials conducted on or after
January 1, 2002, and thus were in effect at the time Petitioner’s trial was conducted in
December, 2003. Id. § 40-18-110, Compiler’s Notes. Further, there is an argument to be made
that Wiley v. State, 183 S.W.3d 317 (Tenn. 2006), stands for the proposition that the trial court’s
duty to charge lesser-included offenses does not excuse an attorney from voicing an objection
when the trial court neglects its duty. See Johnson, 2007 WL 2120184, at *10.

        Whether the duty lies with the court, with counsel, or with both, the petitioner still bears
the burden of proving that a reasonable probability exists that the outcome would have been
different had the instruction been given. See Id. The issue of lesser-included offenses is
controlled by the prevailing law at the time of the trial. Wiley, 183 S.W.2d at 328. In the case
under submission, the Petitioner cannot prove prejudice, which is required to entitle him to post-
conviction relief. It is true that, at the time of the Petitioner’s trial, this Court had held,
“[V]irtually every time one is charged with a felony by way of criminal responsibility for the
conduct of another, facilitation of the felony would be a lesser included offense.” State v. Lewis,
919 S.W.2d 62, 67 (Tenn. Crim. App. 1995).

        The post-conviction court held that the Petitioner did not prove prejudice because the
proof at trial was “overwhelming that the Petitioner was a principle very much involved” in this
particular case and his defense was that he was not present and did not participate in this crime.
Further, the court held there was no proof that, although the Petitioner was at the scene of this
crime and participated, he had no intention to be involved in the actual end result. We agree. In
State v. Ely, 48 S.W.3d 710 (Tenn. 2001), the Tennessee Supreme Court concluded that the trial
court did not err when it failed to instruct the jury on facilitation of felony murder. Id. at 724. In


                                                 -8-
that case, the Court noted that the defendant’s “defense was that he was not present; therefore, he
was either guilty of some degree of homicide or wholly innocent of any wrongdoing.” Id. The
Court then concluded that no reasonable juror could have believed that the defendant therein
facilitated his co-defendant in this crime. Id. Therefore, no instruction on the lesser-included
offense of facilitation was warranted. Id.; see also State v. Joe A. Gallaher, No. E2001-01876-
CCA-R3-CD, 2003 WL 21463017, at *5 (Tenn. Crim. App., at Knoxville, June 25, 2003). We
conclude that the facts of this case are similar to the facts in Ely. In our view, no reasonable jury
could have believed that the Petitioner was not a principle actor in this crime and that he only
facilitated the others in attempting to murder the victim. Therefore, the evidence does not
preponderate against the post-conviction court’s findings that Counsel’s performance was not
deficient in this regard and that the Petitioner did not prove prejudice.

                     B. Failure to Appeal Alleged Due Process Violation

        The Petitioner contends that the Counsel was ineffective for failing to include in his
motion for new trial, or allege on appeal, that his convictions for especially aggravated
kidnapping and attempted first degree murder violated due process protections as articulated in
State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The Petitioner notes that, in his first direct
appeal, this Court addressed whether the evidence was sufficient to sustain the Petitioner’s
especially aggravated kidnapping conviction because the victim entered the truck willingly, did
not attempt to leave the truck, and was not forced to stay in the truck. The Petitioner asserts that,
while the dissenting opinion in that direct appeal cites to Anthony, the Court never squarely
addressed the Anthony issue.

       The post-conviction court found:

       I understand those arguments, . . . and I understand why they’re made and in
       looking at the opinion of the Court of Criminal [A]ppeals it would appear to me
       that those issues have previously been addressed on the motion for new trial,
       maybe not directly [in] light of the argument made in the motion for new trial but
       indirectly in the type and the nature of the argument they are to me interwoven.

                And her argument is whether she actually uses the word[s] . . . “State v.
       Anthony,” in that line of cases or not it is obvious that she was arguing that the
       kidnapping in and of itself was a part of the attempted murder and that there were
       two separate offenses, and I think the Court of Criminal Appeals addressed that
       issue with regard even under the sufficiency of the evidence argument in that was
       this in fact a kidnapping at all.

               And a majority of the Court of Criminal Appeals felt that it was a
       kidnapping that she was enticed into this truck under some fraud and then she was
       maintained there under force after she got inside the truck and that that
       constituted the crime of kidnapping.



                                                -9-
                Judge Hayes in his dissenting opinion feels different[ly] and feels that it is
       an Anthony violation that it is part and parcel to the attempt to commit murder in
       the first-degree. I frankly with all due respect to Judge Hayes don’t agree with his
       analysis of the facts of the case. My analysis of the facts of the case based on
       what I read is that she was enticed into this truck, and it’s obvious from the
       subterfuge that [the Petitioner] and Mr. Holmes put on in getting her in this truck.
       ...

               It’s not that she got in the truck and then they went and picked up [the
       Petitioner] and Holmes. [The Petitioner] and Holmes were hiding behind a
       curtain with the weapons, with the plastic to hide her body. It was their intent to
       get her into that truck and to kill her and dispose of her body, and they got her
       into that truck under fraud, under an enticement and knowing what their intention
       was, and then once she was there, she was detained against her will, and she
       suffered serious bod[ily] injury as a result thereof. She was moved to another
       location. Her body was secreted out in a field somewhere and left, and during the
       course of that they attempted to murder her.

               So [in] my opinion both charges could stand and should stand, and I think
       the majority of the Court of Criminal Appeals felt the same way . . . and I think
       that in light of the fact that Judge Hayes mentions State v. Anthony in his dissent
       is an indication that both the majority had access to State v. Anthony, obviously,
       they were aware of it.

              Obviously, it is something that was discussed by the Court of Criminal
       Appeals because it’s discussed in Judge Hayes’ dissenting opinion which means
       the other side had to look at it had to be aware of it had to be conscious of
       Anthony as a ulterior analysis of the facts of the case, and if the Court of Criminal
       Appeals felt that it was a violation of Anthony, they could have addressed that and
       ruled on it because it’s obvious that they were aware of it and addressed it in their
       opinion based upon the cite that’s given by Judge Hayes of that case.

               So I’m of the opinion that that is an issue that has already been adequately
       covered on appeal and that [Counsel] did in fact argue that issue whether she used
       the right terminology or not whether she cited the right case. She argued that
       theory of the law, and the court of Criminal Appeals addressed that theory of the
       law, and I think it’s already found that it is without merit.

        The same principles apply in determining the effectiveness of both trial and appellate
counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). A petitioner alleging ineffective
assistance of appellate counsel must prove both that (1) appellate counsel were objectively
unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel’s deficient
performance, there was a reasonable probability that the petitioner’s appeal would have been
successful before the highest court. See e.g., State v. Robbins, 528 U.S. 259, 285 (2000); Tony


                                                -10-
Carruthers v. State, No. W2006-0036-CCA-R3-PD, 2007 WL 4355481, at *41 (Tenn. Crim.
App, at Jackson, Dec. 12, 2007). To show that counsel was deficient for failing to raise an issue
on direct appeal, the reviewing court must determine the merits of the issue. Carpenter v. State,
126 S.W.3d 879, 887 (Tenn. 2004) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
Obviously, if an issue has no merit or is weak, then appellate counsel’s performance will not be
deficient if counsel fails to raise it. Id. Likewise, unless the omitted issue has some merit, the
petitioner suffers no prejudice from appellate counsel’s failure to raise the issue on appeal. Id.
When an omitted issue is without merit, the petitioner cannot prevail on an ineffective assistance
of counsel claim. Id. at 888.

        In State v. Anthony, the Tennessee Supreme Court set forth a test to determine whether
dual convictions for kidnapping and another felony violate due process. Anthony, 817 S.W.2d at
306. Our Supreme Court recognized that certain crimes, such as robbery and rape, necessarily
involve some detention or confinement of the victim. Id. Under circumstances in which the
detention or confinement of the victim is “essentially incidental” to the underlying felony,
principles of due process prohibit the imposition of another conviction for kidnapping. Id.
Thus, in determining whether a defendant’s actions in committing the underlying offense will
also support a separate conviction for kidnapping, the inquiry is:

       [W]hether the confinement, movement, or detention is essentially incidental to
       the accompanying felony and is not, therefore sufficient to support a separate
       conviction for kidnapping, or whether it is significant enough, in and of itself, to
       warrant independent prosecution and is, therefore, sufficient to support such a
       conviction.

Id.

        In the case under submission, the Petitioner was convicted of attempted first degree
murder, especially aggravated kidnapping, two counts of aggravated assault, and one count of
coercion of a witness. Counsel appealed these convictions, contending that the kidnapping was
“incidental” to the attempted first degree murder conviction. She conceded at the post-
conviction hearing that she did not cite to State v. Anthony in her appeal, instead couching her
argument in terms that the evidence was insufficient to sustain the kidnapping conviction.
Clearly, it is a better practice to cite to all relevant authorities on appeal, and Counsel should
have done so. This, however, does not entitle the Petitioner to post-conviction relief because he
has not shown that his appeal would have been successful. In the Petitioner’s direct appeal, this
Court in fact was aware of, and addressed, the State v. Anthony issue. In his dissenting opinion
in this direct appeal, Judge Hayes disagreed with the majority’s finding that the evidence
sufficiently supported both an attempted first degree murder conviction and an especially
aggravated kidnapping conviction, citing to Anthony. Lester, 2005 WL 1798763, at *8. The
majority found this dissent unpersuasive, rejecting Judge Hayes interpretation of Anthony. Id. at
*4. This Court clearly considered this issue, and the Anthony case, in its opinion on the
Petitioner’s direct appeal. Accordingly, the Petitioner cannot prove that a reasonable probability
exists that his appeal would have been successful had Counsel cited to this case. He is,


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therefore, not entitled to relief.

                   C. Failure to Object to Testimony of Prior Rape of Victim

         Finally, the Petitioner contends that Counsel was ineffective for failing to object to
testimony about the prior rape of the victim by Holmes and Blair. During the Petitioner’s trial,
the victim testified that Holmes and Blair had previously raped her on April 21, 2001. Counsel
testified at the post-conviction hearing that she did not object to this testimony as a matter of
trial strategy. The Petitioner was not involved in this prior rape, and the State alleged the
subsequent beating, for which the Petitioner was on trial, was an attempt to kill the victim so she
could not testify about the rape. When Counsel learned that Blair would testify against the
Petitioner, she decided the testimony about the rape should be admitted so that she could
impeach Blair about this rape and his participation in it. The post-conviction court held that
Counsel’s trial strategy in this regard was reasonable.


        As previously stated, counsel should not be deemed to have been ineffective merely
because a different procedure or strategy might have produced a different result. Williams, 599
S.W.2d at 279-80. The fact that a particular strategy or tactic failed or hurt the defense does not,
standing alone, establish unreasonable representation. House, 44 S.W.3d at 515. However,
deference to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. Id. We conclude that Counsel’s decision not to object to the
testimony about the rape was based upon adequate preparation and was one of strategy. We will
not second guess that decision with the benefit of hindsight. The Petitioner is not entitled to
relief on this issue.

                                         III. Conclusion

       Based on the foregoing reasoning and authority, we affirm the judgment of the post-
conviction court.

                                                           ________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




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