        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 17, 2010 Session

                   JOEL KEENER v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Warren County
                      No. F-9282     Larry B. Stanley, Judge




              No. M2009-02489-CCA-R3-PC - Filed November 19, 2010


The Petitioner, Joel Keener, appeals as of right the Warren County Circuit Court’s denial of
his petition for post-conviction relief. In 2005, the Petitioner was convicted by a jury of
facilitation of manufacturing methamphetamine and sentenced to eight years in the
Department of Correction. On appeal, he argues that the denial of his petition was error
because he did not receive the effective assistance of counsel at trial. Specifically, he
contends that counsel failed to seek severance of the charges, failed to seek suppression of
the Petitioner’s statement, and failed to challenge admission of a photograph showing iodine-
stained hands. He argues that the cumulative effect of these errors denied him a fair trial.
Following our review of the record and the parties’ briefs, we conclude that the Petitioner
has not shown that he is entitled to relief. The judgment of the post-conviction court is
affirmed.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OBERT W. W EDEMEYER, JJ., joined.

John E. Nicoll, Manchester, Tennessee, for the appellant, Joel Keener.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of
Tennessee.
                                          OPINION

                                   Factual Background
        The Petitioner was initially charged with manufacture of methamphetamine and
unlawful possession of a weapon. After a trial by jury, he was convicted of the lesser-
included offense of facilitation of manufacture of methamphetamine and acquitted of the
weapon charge. He was subsequently sentenced as a Range II, multiple offender to eight
years in the Department of Correction. On direct appeal, this Court affirmed the sufficiency
of the convicting evidence supporting the Petitioner’s conviction and upheld the sentence as
imposed. See State v. Joel Keener, No. M2005-01923-CCA-R3-CD, 2006 WL 1931805
(Tenn. Crim. App., Nashville, July 13, 2006), perm. to appeal denied, (Tenn., Dec. 27, 2006).

        In this Court’s opinion adjudicating the Petitioner’s direct appeal, this Court detailed
the relevant proceedings as follows:

       At the [Petitioner’s] trial on these charges, the following evidence was
       presented: Tony Jenkins, a detective with the McMinnville Police Department,
       testified that, on October 25, 2002, he and another detective, Mike Vann, went
       to 115 Morningside Drive to get the contents of the trash can. He said that he
       and Detective Vann took the contents to another location to search for mail
       and discarded items used in the manufacture of methamphetamine. Detective
       Jenkins agreed that, based on what they found and other observations made at
       this address, he obtained a search warrant for the address on October 28, 2002.

               Detective Jenkins testified that he participated in the execution of the
       search warrant on October 29, 2002. When they got to the house a woman
       named Deana Tate, who lived in the home, answered the door. The detective
       entered the home and saw the [Petitioner] moving around under the bedcovers.
       Detective Jenkins ordered the [Petitioner] to show his hands, but the
       [Petitioner] would not show his hands. The detective pulled the bedcovers off
       of the [Petitioner] and took him into custody.

              On cross-examination, the detective agreed that he did not recall finding
       any tubing or coffee filters at the house. He also did not find any Ephedrine
       or Pseudoephedrine pills. The detective was unsure whether several other
       items that he was asked about were found in the home, and he agreed that
       some of these items were common items to be found around a
       methamphetamine laboratory. The detective said that he did not find any bills
       or receipts from chemical companies or any unused baggies. The detective
       conceded that he did not find any methamphetamine residue, large quantities

                                              -2-
of cash, or any cutting agents. Detective Jenkins also conceded that he did not
know whether the [Petitioner] was at the house on the night that the detective
searched the trash. The detective had, however, seen the [Petitioner] at this
residence once or twice prior to the date that the search warrant was executed.
Detective Jenkins did not find anything in the trash can listing the
[Petitioner]’s name.

        Detective Jenkins said that he found a handgun in the same room as the
[Petitioner], but it was not on the [Petitioner]’s person. He said that he did not
fingerprint the handgun to see if the [Petitioner] had ever handled the gun.
Therefore, he agreed that he could not say for sure whether the [Petitioner]
touched the gun. The detective agreed that Deana Marie Tate claimed that the
handgun belonged to her deceased ex-husband, and he said that the gun was
located between the wall and the bed, which was within the [Petitioner]’s
reach.

        The detective said that he found no consumable or marketable
methamphetamine at the residence. He testified that no methamphetamine
could have been produced from what he found at the residence when he
executed the search warrant. Detective Jenkins did find red phosphorus in the
[Petitioner]’s pant’s pocket. The detective said that he arrested the
[Petitioner], and he agreed that he was “up close” with the [Petitioner]. He
testified that he did not see any sores on the [Petitioner]’s hands, but he did see
iodine stains on them. The detective agreed that he did not recall finding any
drug paraphernalia, pipes, rolling papers, or needles on the [Petitioner].
Detective Jenkins testified that there was no proof that the red phosphorus in
the [Petitioner]’s possession was processed at the house where the search
warrant was executed. Further, the detective agreed that there was not an odor
of “fresh cooked methamphetamine” at the house, but his eyes and throat did
burn while he was at the home as if methamphetamine had been cooked there
in the last few days.

        On redirect examination, Detective Jenkins testified that of the sixty to
seventy methamphetamine labs that he has discovered while in law
enforcement he found large sums of money at only two of them. Further, he
said that, based on his training and experience, the substance found in the
[Petitioner]’s pocket was red phosphorus and that red phosphorus is one of the
ingredients used to manufacture methamphetamine. Detective Jenkins testified
that he thought that methamphetamine had been manufactured in the residence



                                        -3-
somewhere between October 25th and 29th, before the search warrant was
executed.

        Mike Vann, a detective with the McMinnville Police Department,
testified as an expert in the area of investigation of clandestine
methamphetamine laboratories that he was involved in the investigation of this
case. He said that he assisted Detective Jenkins in a “trash pull” on October
25, 2002, to look for evidence of illegal drug activity. In the trash, the
detective found empty chemical containers, old filters, and other items that led
him to believe that something illegal was occurring in the house. Detective
Vann said that, based on the evidence found in the trash, Detective Jenkins
obtained, and they both executed, a search warrant of the home. The detective
said that when he investigates methamphetamine laboratories he looks for
ephedrine or pseudoephedrine, iodine or iodine crystals, and red phosphorus.
The detective said that obtaining the red phosphorus from matchbooks is labor
intensive, but it is a key ingredient in the manufacture of methamphetamine.
Detective Vann listed multiple other ingredients used in the manufacture of
methamphetamine and said that he does not always find all of these at every
methamphetamine laboratory that he discovers. He said that, sometimes, they
arrive after the methamphetamine has been produced so you only find some,
and not all, of the necessary ingredients.

       The detective identified multiple pictures of the home, including one
that depicted a handgun that was found underneath the bed lying against the
wall. He agreed that this gun was found underneath the bed in the bedroom
where the [Petitioner] was when they executed the search warrant. Detective
Vann indicated that the [Petitioner] could have leaned over the side of the bed
and been able to reach the gun. Also in that room, the detective found a jar
wrapped in tape that contained iodine crystals, a “true laboratory flask,” a set
of scales, a propane torch, two baggies, a small plastic white translucent
looking container, a blister pack that is commonly used to package cold
medicines, and a propane camp stove. The detective said that all of these
items were significant in that they could be used in the manufacture of
methamphetamine.

       Detective Vann testified about the items that he found in the trash on
October 29, 2002, the day the search warrant was executed. He said that he
found what he would consider “meth trash,” which included empty blister
packs of over-the-counter cold medicine, charcoal lighter fluid, empty
containers, Heet gas treatment, which contains methyl alcohol that is used to

                                      -4-
separate the pills, and several filters. Additionally, he found an HCL
generator, which is commonly used in the manufacture of methamphetamine.
In a city trash can, the detective found coffee filters that contained red
phosphorus, coke bottles that had been cut off as if to be used as funnels, an
empty box of Sudafed, and tubing. Detective Vann also found a glass tube
similar to those used commonly to ingest methamphetamine. The detective
also identified a photograph depicting the iodine stains on the [Petitioner]’s
hands. He said that, commonly, he looks for iodine stains on a person’s hands
that he suspects of manufacturing methamphetamine.

        On cross-examination, the detective agreed that he did not see the
[Petitioner] on October 25, 2002, the day that they did the “trash pull,” and he
did not find any evidence that day that would link the [Petitioner] to a
methamphetamine laboratory. Detective Vann testified that on the day that he
executed the search warrant he did not find any matches, lye, or brake cleaner,
and he did not find any ephedrine or pseudoephedrine, acid, tubing, or
aluminum foil inside the home. He also did not find evidence that the
[Petitioner] processed the red phosphorus that was in his possession. The
detective conceded that methamphetamine could not be made from iodine
crystals, red phosphorous, and Coleman fuel alone. Detective Vann testified
that he did not take fingerprints from the glass flasks or the handgun found in
the room with the [Petitioner]. The detective testified that he did not find any
methamphetamine at the house, and he agreed that there was nothing wrong
with owning some of the items that he found in the house. The detective
agreed that the trash can did not have a lock on it and that it was possible that
someone else put the trash in the trash can. He agreed that a person would
have to have lye in order to produce methamphetamine. Detective Vann
testified that he noticed the odor of methamphetamine when he entered the
house, but the odor was not strong. He agreed that he also did not find any
cutting agents, large amounts of cash, or any records or ledger books relating
to the illegal distribution of methamphetamine.

        Jason Rowland, an investigator employed with the District Attorney’s
Office and the Drug Task Force, testified that he participated in the execution
of this search warrant. Shortly after the warrant was executed, he and another
detective went back to Rowland’s office to interview the [Petitioner].
Rowland said that he read the [Petitioner] his rights, and the [Petitioner]
waived those rights. Rowland then identified a videotaped interview with the
[Petitioner], and it was played for the jury.



                                       -5-
        In the interview, much of which was unintelligible, the [Petitioner] said
that he had stayed at the home that was searched “off and on” for two or three
months and that he and Tate sometimes dated. The [Petitioner] said that he
tried to keep the home clean and so he had cleaned out mason jars and picked
up coffee filters, but he did not know how they had been used. He said that he
knew the ingredients for cooking methamphetamine, but he did not know that
anyone was cooking it in the house. The [Petitioner] said that he did not know
that there was anything in his pockets and that someone must have planted this
evidence on him. He said that he had bought iodine for a person three or four
weeks ago, but he refused to say whom he bought the iodine for because that
person had traded the iodine for drugs. The [Petitioner] denied knowing that
there was a gun in the room in which he was found, saying that he had just
pulled back the covers and gone to sleep in the room but had never looked
around. He denied that the stains on his hands were from iodine and explained
that he thought they were grease stains from working on Tate’s car. The
[Petitioner] then admitted that, one time, a man named “Charles” came to the
house and cooked methamphetamine, and he thought that maybe it was two or
three days ago. He admitted that he went to Target and other stores near
Murfreesboro to purchase chemicals that were needed for the cooking process.
He said that he did not stay in the room when “they” cooked methamphetamine
and that “they” brought him some methamphetamine after “they” finished
cooking.

       On cross-examination, Rowland said that it was not illegal to purchase
iodine, matches, or cold pills. He said that the [Petitioner] told him that he
took a “quarter,” presumably of a gram, of methamphetamine per week, and
Rowland agreed that a quarter is a small amount.

      The parties stipulated that the [Petitioner] had a prior felony drug
conviction.

         Deana Marie Tate testified that she lived at the house that was searched
by police, and she had picked up the [Petitioner] at his mother’s house during
the evening prior to the search. Tate said that, at the time, the [Petitioner]
lived with his mother and not with her. She said that he stayed at her house
approximately four or five nights per week at the most, and she had known
him for about one month. Tate said that the [Petitioner] was a “real druggy”
at this time and that he smoked a lot of pot. She said that when she went to get
the [Petitioner] he was “groggy,” and as soon as they got to her house he went
to sleep. Tate said that she left the house and did not return until somewhere

                                       -6-
        between 11:00 p.m. and 1:00 a.m. She checked on the [Petitioner], and he was
        still asleep. Tate testified that she did not tell the [Petitioner] that there was a
        methamphetamine laboratory in her home, and there was not an agreement
        between the [Petitioner] and her to manufacture methamphetamine. Tate said
        that the [Petitioner] never bought pills or iodine, but Tate did, and the
        [Petitioner] had no idea what was happening. Tate testified that she
        “guess[ed]” that the two guns that were at the house belonged to her. Tate
        identified the photograph previously entered of some iodine stains on hands.
        She said that the hands depicted in that photograph were hers and that she had
        iodine stains and burns on her hands.

               On cross-examination, Tate testified that, at the time of this incident,
        she was using methamphetamine fairly heavily. She indicated that, therefore,
        her memory of this particular time was incomplete. Tate said that she put the
        gun underneath the bed in the room where the [Petitioner] was sleeping after
        her husband was killed. She testified that the last time that she manufactured
        methamphetamine in her home was approximately two weeks prior to the
        search. She agreed that she would make some of the methamphetamine at her
        house and then take it somewhere else to finish the cooking process.

                On redirect examination, Tate agreed that she pled guilty to owning all
        of the items found by police. She said that everything in the house was hers
        and not the [Petitioner]’s. Further, the [Petitioner] never helped her make
        methamphetamine.


Id. at *1-5. Based upon this evidence, the Petitioner was convicted of the facilitation of the
manufacture of methamphetamine, a Class D felony. Id. at 5. The trial court sentenced the
Petitioner to eight years in the Department of Correction. Id. at *6.

       Thereafter, the Petitioner filed a petition for post-conviction relief.1 Counsel was
appointed for the Petitioner, and an amended petition was filed on July 22, 2008. The
Petitioner asserted he did not receive the effective assistance of counsel at trial. As specific
grounds for relief, the Petitioner made the following allegations: (1) trial counsel was
ineffective for failing to move to sever the weapon charge from the drug charge; (2) trial
counsel was ineffective for failing to seek suppression of the Petitioner’s videotaped


        1
           A copy of this petition is not included in the record on appeal. Therefore, we do not know if it was
timely filed. However, the State, in its response to the petitions, admitted that the original petition was timely
filed.

                                                       -7-
statement, which statement was made in violation of his Miranda rights, contained evidence
of uncharged misconduct, and was of poor audio quality; (3) trial counsel was ineffective for
failing to challenge admission of the photograph showing iodine-stained hands; (4) trial
counsel was ineffective for failing to meet with the Petitioner often enough, failing to
properly investigate the case, and failing to adequately prepare for trial, sentencing, or the
motion for new trial hearing; and (5) trial counsel was ineffective in his representation of the
Petitioner at the sentencing hearing and at the motion for new trial hearing, failing to argue
mitigating factors at the sentencing hearing and failing to raise potential legal issues in the
motion for new trial.

       A hearing was held January 14, 2009. Deana Marie Tate Taylor was first to testify.
She stated that, prior to the Petitioner’s trial, she met with trial counsel once in person for “a
few minutes at his office” and once by telephone speaking with him for “five or ten minutes
maybe.” Ms. Taylor confirmed that she testified at the Petitioner’s trial that he did not have
any part in the manufacturing process. Ms. Taylor was shown the photograph of the iodine-
stained hands entered as evidence against the Petitioner at trial; she stated that the hands in
the photo belonged to her and that the photograph was taken at the Warren County Jail. She
discussed identifying marks of the hands to illustrate that the hands were in fact hers. Ms.
Taylor did not believe she saw the photograph before the Petitioner’s trial; however, she
admitted that she was able to tell the jury, upon questioning by trial counsel, that those were
a picture of her hands. She further relayed in front of the jury that the gun found under the
bed the Petitioner was sleeping on belonged to her. Ms. Taylor could not explain the red
phosphorus found in the Petitioner’s pockets.

        The Petitioner then testified that he only met with trial counsel three or four times
prior to trial. The Petitioner claimed that trial counsel did not review any evidence with him
prior to trial and that he was never shown his videotaped statement or a picture of the iodine-
stained hands. On the day of trial, when the Petitioner first saw the picture, he notified trial
counsel that the hands in the photograph were not his. According to the Petitioner, trial
counsel never discussed trial strategy with him, instead only telling the Petitioner “what he
was going to do.” The Petitioner asserted that, prior to trial, he had filed a motion to have
trial counsel removed as his attorney.

        The Petitioner stated that he told trial counsel he was concerned about “uncharged
misconduct” on the videotape coming before the jury. The Petitioner admitted that, during
the interview, he told officers that he had gone to Murfreesboro and purchased some items
to manufacture methamphetamine. The Petitioner challenged the following statements on
the videotape, contending that they were “uncharged misconduct”: (1) “Why am I always
getting caught up in this stuff?”; (2) “I’m on probation.”; (3) “I use the shit.”; (4) “I traded
some iodine with some guy named Bubba several weeks ago.”; (5) “Why am I always getting

                                               -8-
caught up in these meth labs?’; and (6) “How much dope are you doing?,” to which the
Petitioner responded, “Maybe a quarter per week.”

       When asked about the red phosphorous found in his pockets, the Petitioner stated that
he knew something was in his pocket but was not sure what it was. The forty-two-year old
Petitioner admitted that he had a significant history of criminal convictions beginning at the
age of nineteen. He confirmed that he had prior felony convictions, including one for
attempted manufacture of methamphetamine.

       Trial counsel then testified. He recalled talking with the Petitioner and discussing trial
strategy. He stated that he reviewed the evidence in the Petitioner’s case and was aware of
the Petitioner’s extensive criminal record.

        When asked if he spoke with Ms. Taylor prior to the Petitioner’s trial, trial counsel
replied affirmatively and relayed that he knew she would assert at trial that the hands in the
photo were hers and claim ownership of the gun found under the bed. Trial counsel asserted
that it was his trial strategy to allow Officer Mike Vann to identify the hands in the
photograph as the Petitioner’s and, thereafter, have Ms. Taylor discredit that claim, alerting
the jury that if the officers “misrepresented that they might have misrepresented something
else.”

       Trial counsel also testified that it was trial strategy to allow the entire videotape to be
played in front of the jury:

       It was better in my thinking to have that video played and let the [j]ury hear
       what was on it or not hear than to have [the district attorney’s investigator]
       give his spin on it. And there were parts in there where [the Petitioner], what
       I thought that would help [the Petitioner] in that he was trying to aide [sic] the
       police in finding whoever was buying or selling or whatever.

Trial counsel further relayed that the he believed the Petitioner’s statements of denial on the
tape would be helpful.

         When asked why he did not seek to sever the weapon charge from the drug charge,
trial counsel responded again that it was trial strategy and that he knew Ms. Taylor would
testify that the gun belonged to her. He explained, “in my opinion, if we severed the two
trials, then if we have a trial about the gun, the police just can’t magically appear and it was
going to come in that they were there for drugs.” Trial counsel confirmed that he stipulated
the Petitioner had a prior felony drug conviction. It was noted that the jury acquitted the



                                               -9-
Petitioner of the weapon offense and found him guilty of a lesser-included offense of the
indicted drug charge.

        Regarding sentencing, trial counsel testified that he filed a notice of mitigating factors
with the trial court, but he could not recall specifically what those factors were. Trial counsel
could not remember why he did not any argue mitigating factors to the trial court at the
sentencing hearing. However, he normally reviewed pre-sentence reports with his clients
prior to sentencing. It was noted that an erroneous statement was made at the motion for new
trial hearing: the prosecutor stated that the Petitioner was sentenced in the middle of his
range, when in fact, he was sentenced at the top of his range. The trial court then stated it
was affirming the “mid-range” sentence.

       After reviewing the evidence presented, the post-conviction court denied relief by
written order. This appeal followed.

                                            Analysis
I. Notice of Appeal
       First, the State argues that we should dismiss the appeal because the Petitioner’s
notice of appeal document was not timely filed. An order was entered on February 17, 2009,
wherein the post-conviction court summarized its findings of fact and conclusions of law at
the post-conviction hearing. The order was prepared by the district attorney general and
signed by the post-conviction judge. In the order, the judge ordered a resentencing hearing
for February 25, 2009, to allow the Petitioner to present mitigating factors that were not
argued or presented at his original sentencing hearing. All of the other claims were denied.

       After correspondence between both attorneys, defense counsel did not approve of the
“proposed order” and filed a motion for formal written findings of fact and conclusions of
law on February 24, 2009. According to an affidavit of post-conviction counsel, at this time,
neither lawyer had any knowledge of entry of the February 17, 2009 order. A transcript was
thereafter prepared upon the agreement of all parties. An “Agreed Notice of Hearing” was
filed on August 14, 2009, setting the case for a hearing on September 23, 2009, in order “to
complete the final order regarding the post-conviction hearing that was conducted in this
matter on January 14, 2009.” Another “final” order on the Petitioner’s petition was filed on
November 4, 2009; the ultimate conclusions in this order do not differ or change the rulings
made in the February 17, 2009. The notice of appeal document was then filed on December
3, 2009.

       While the State correctly notes that the post-conviction court had no authority to alter
the judgment once it became final, the notice of appeal document is not jurisdictional. See



                                               -10-
Tenn. R. App. 4(a). Because it appears form the record that there was justifiable excuse for
the delay, we will waive the timely filing of such document in the interest of justice.

II. Ineffective Assistance of Counsel
        The Petitioner argues that trial counsel rendered ineffective assistance, thus violating
his right to competent representation as guaranteed by the Sixth Amendment to the United
States Constitution. In this appeal, he specifically argues that counsel failed to pursue
severance of the charges to the Petitioner’s prejudice, failed to adequately handle the
Petitioner’s videotaped statement, and failed to seek suppression of the photograph showing
the iodine-stained hands resulting in prejudice to the Petitioner. Finally, he argues that the
cumulative effect of these errors require reversal of his conviction.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “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. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “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; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,

                                               -11-
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

A. Severance of the Charges
        The Petitioner complains that the post-conviction court erred by determining that trial
counsel’s failure to sever the charges did not result in prejudice to him. He submits that, if
the charges had been severed, the jury would not have heard about the prior conviction
during the Petitioner’s trial on the drug charge and that this information prejudiced his
defense. The Petitioner points to the fact that his prior felony drug conviction was referred
to five times during his trial.

        The post-conviction court ruled that trial counsel was deficient in not seeking
severance of the charges “because the evidence regarding the [Petitioner]’s prior felony drug
offense would not have had any relevance at the trial if not for the gun charge being tried
with it.” The court then determined that, if a motion to sever had been made, it would have
granted said motion. The post-conviction court then went on to address any potential
prejudice to the Petitioner, concluding as follows:

       [A]lthough the evidence of the [Petitioner’s] prior felony drug conviction was
       harmful to the [Petitioner], it did not rise to the level of undermining the
       judgment of the jury based on the totality of the circumstances. This court
       finds that the crux of the government’s case was the objects found on the
       [Petitioner]’s possession or in the room he occupied, and the statements he
       made regarding buying pills and using methamphetamine. As such, this court
       finds that the [Petitioner] has failed to meet his burden of demonstrating a
       reasonable probability that, but for counsel’s unprofessional errors, the result
       of the proceeding would have been different.

      Immediately following the stipulation that the Petitioner had a prior felony drug
conviction, the trial court gave the following instruction:

                                             -12-
              All right. Ladies and gentleman, a stipulation is an agreement by the
       parties that a certain fact or set of facts does exist. In this case, the parties,
       both of the attorneys, have agreed that certain facts do exist, and you can
       accept that as having been testified to without hearing any evidence. That fact
       was that the defendant has a prior felony drug conviction. That is part of the
       requirement in Count 2 of the unlawful possession of a weapon. You will
       recall me reading the definition of that offense. That is something that can be
       considered in that particular offense. They have agreed that that fact does
       exist.

A jury is presumed to follow the instructions of the court. See State v. Banks, 271 S.W.3d
90, 134 (Tenn. 2008). Although not a specific instruction addressing character evidence, this
instruction did mitigate the harmful effect that introduction of the prior conviction may have
had upon the jury, lessening the possibility that the jury considered the prior conviction as
evidence of the Petitioner’s propensity to commit the underlying offense.

       Most importantly, as noted by the post-conviction court the “crux of the government’s
case” was the red phosphorous found in the Petitioner’s pant’s pocket, the iodine stains on
the Petitioner’s hands, the items found in the room he occupied when officers searched the
residence, and the statements he made regarding buying pills and using methamphetamine.
We agree with the post-conviction court that the Petitioner has failed to demonstrate
prejudice.

B. Videotaped Statement
       Next, the Petitioner argues that trial counsel was ineffective for failing to seek
suppression of his videotaped police interview or, in the alternative, failing to have the
videotape redacted. Specifically, he makes two challenges to the videotaped statement: (1)
the audio of the tape was of “such bad quality that it could not be heard clearly by the jury,”
forcing them to instead rely on the statements of the prosecutor and trial counsel; and (2) the
tape contained evidence of “uncharged misconduct” which was improper character evidence.

       The post-conviction court again determined that trial counsel was ineffective but
found no prejudice. The post-conviction court found that “the content of the tape for the
most part was not beneficial to the [Petitioner]” and, therefore, agreed with the Petitioner that
it was not proper strategy “to allow the videotape to be played for the jury without some
attempt to mitigate the incriminating or prejudicial statements contained thereon.”

       Regarding the allegation that the trial counsel should have sought to have the tape
excluded because it contained “uncharged misconduct,” the post-conviction court concurred
that some of the statements made by the Petitioner during the interview (“being on probation”

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and “always getting caught up in these things”) were uncharged misconduct. However, the
court then went on to find “that most of the statements made by the [Petitioner] on the
videotape such as ‘he bought pills on occasion’ and ‘that he used methamphetamine on
occasion’ are not ‘uncharged misconduct’ as the [Petitioner] claims, but instead are probative
evidence of the [Petitioner’s] guilt in the facilitation of manufacturing process.” In
conclusion, the court ruled that the statements of “uncharged misconduct” that were admitted
into evidence were not prejudicial to the Petitioner.

       Next, the post-conviction court addressed the Petitioner’s argument that the videotape
should have been excluded or some other action taken due to the tape’s poor audio quality.
The court concluded that the jury was “in the best position to make its own determination of
what was heard. The jury can give said evidence the weight it deserves or does not deserve
based on the totality of the circumstances, including the audibleness of the recording.”

        The post-conviction court stated that, even if counsel had filed a motion to suppress
or redact the recording, the court would only have redacted a small portion of the recording
as the videotape established proof of the necessary elements of the offense—furnishing
substantial assistance in the manufacturing process. We again concur with the post-
conviction court that the Petitioner failed to demonstrate prejudice. While the audio portion
of the tape may have been of poor quality, the entire tape was played for the jury. The jury
was instructed that the statements, arguments, and remarks of counsel “are not evidence,”
and the jury was presumed to follow these instructions. See Banks, 271 S.W.3d at 134. It
was for the jury to assess the weight and credibility of the videotaped interview. The
Petitioner is not entitled to relief on this issue.

C. Photograph of Hands
       The Petitioner contends that trial counsel’s decision not to challenge the photograph
of the iodine-stained hands was based on inadequate preparation. He submits that trial
counsel, knowing the hands did not belong to the Petitioner, should have filed a motion in
limine to suppress the photograph or, at the very least, objected to the introduction of said
photograph at trial.

        At the post-conviction hearing, trial counsel testified that he interviewed Ms. Taylor
and knew prior to trial that the photograph was of her hands. The post-conviction court
accredited this statement of trial counsel. In addition, trial counsel stated that he made a
strategic decision not to challenge the photograph at any point and allow Officer Vann to
testify at length about the photograph. When Ms. Taylor rebutted Officer Vann’s testimony,
he thought that it would call the officer’s credibility into question and that the jury might
believe that the officers may have misrepresented something else. The post-conviction court
determined that trial counsel’s decision was sound strategy. The court found that trial

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counsel was aware before trial that “the hands depicted in the photograph were not those of
[the Petitioner]”; however, trial counsel chose not to raise the issue in a pretrial motion
“because he wanted to surprise the government counsel at trial.” This Court may not second-
guess a reasonably-based trial strategy based upon adequate preparation. The Petitioner is
not entitled to relief on this issue.

D. Cumulative Effect
       Finally, the Petitioner asserts that the cumulative effect of these errors denied him of
his right to a fair trial. Under this theory, the Petitioner asserts that the aggregate total of
counsel’s errors did amount to prejudice when taken as a whole. After consideration of the
entire record, we conclude that the cumulative effect of those individual errors did not
deprive the Petitioner of a fair trial, as there was not a reasonable probability that the
outcome of the Petitioner’s case was effected.

                                         Conclusion
       Based upon the foregoing reasoning and authorities, we conclude that the Petitioner
has not shown he is entitled to relief on grounds of ineffective assistance of counsel. The
judgment of Warren County Circuit Court denying post-conviction relief is affirmed.




                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




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