        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 11, 2015


           CHRISTOPHER M. BLACK v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                    No. 2004-A-246    Monte Watkins, Judge




             No. M2014-01607-CCA-R3-PC – Filed December 29, 2015
                       _____________________________

In 2006, the Petitioner, Christopher M. Black, was convicted by a Davidson County jury
of two counts of aggravated rape and two counts of aggravated robbery, for which the
Petitioner received an effective sentence of fifty years in the Department of Correction.
On direct appeal, this court affirmed the Petitioner‟s convictions and sentence.
Thereafter, the Petitioner filed a petition for post-conviction relief, which was denied
following a hearing. On appeal from the denial of post-conviction relief, the Petitioner
contends that he received ineffective assistance of counsel based upon trial counsel‟s
failure to hire a DNA expert to analyze the evidence against the Petitioner. Following
our review, we affirmed the judgment of the post-conviction court. Thereafter, the
Tennessee Supreme Court granted the Petitioner‟s application for permission to appeal
and remanded the matter to the post-conviction court for the entry of a supplemental
order denying the petition. The post-conviction court complied with the remand order
and filed a supplemental order with this court. Upon reconsideration of the Petitioner‟s
case, we affirm the judgment of the post-conviction court.

 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 THOMAS T.
WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Christopher M. Black.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                        I. Factual and Procedural Background

       On February 6, 2004, the Petitioner was indicted on two counts of aggravated
rape, a Class A felony, and two counts of aggravated robbery, a Class B felony.
Following a jury trial, the Petitioner was convicted as charged. For each aggravated rape
conviction, the Petitioner received a twenty-year sentence to be served consecutively to
one another. For each aggravated robbery conviction, the Petitioner received a ten-year
sentence to be served concurrently with one another but consecutively to the aggravated
rape convictions, for an effective fifty-year sentence. The facts underlying the
Petitioner‟s convictions, as summarized by this court on direct appeal, are as follows:

      . . . This case stems from a brutal attack upon a female victim, L.P., and a
      male victim, D.B., beginning in the late hours of February 12, 1999, and
      ending in the early morning hours of February 13, 1999. The victims had
      been friends for several years. Around 11:30 p.m. on the night of the
      offense, the female victim drove to the male victim‟s parent‟s home where
      the male victim lived to borrow a movie. She pulled her vehicle in front of
      his home and paged him to come outside. The male victim came outside,
      gave her the movie, and sat inside her vehicle to talk. About fifteen
      minutes later, the male victim was getting out of the vehicle when he and
      the victim saw two men with hoods coming through his yard.

              The female victim stated that the two men came around from behind
      her vehicle, over to the driver‟s side, and knocked on the window. Neither
      victim knew the two men. The female victim cracked the window, and a
      revolver was stuck in the window to her temple. The men screamed at the
      female victim, “Get out of the car, [b****]. Get out of the car [b****].”
      The vehicle was still running, and she unlocked the door and opened it.
      The female victim said that a chrome revolver was put to her head. She
      stated, “[I]t looked like it had a pearl, or like, an engraved handle. Looked
      more like a collector‟s gun.”

             When the female victim began to get out of the vehicle, the men
      pushed her back inside. At this point, she stated that she was in the front
      seat of her vehicle. The male victim had gotten out of the vehicle and was
      on the ground. The men went through the vehicle and told the victim they
      wanted her wallet and money. She told them that she only had ten dollars,
      and they yelled at her for not having more money. The men looked through
      the trunk twice and took the female victim‟s credit cards.
                                           -2-
       The female victim differentiated between the two men by their skin
tone. After the men asked for the female victim‟s money, the female victim
stated that the man with the dark complexion demanded that she perform
oral sex on him. She testified that he said, “„[Y]ou‟re going to suck my
d***.‟” She said that she complied because she had a gun to her head and
was terrified. She stated, “It started in the street. He made me get on my
knees in the street and perform oral sex. And they both switched back and
forth between four to six times.” Both men forced her to perform oral sex
against her will and consent by threatening her with a weapon.

        The female victim testified that after the men forced her to perform
fellatio on them, the man with the lighter complexion said, “„I want to f***
this b****.‟ And they made [her] pull down [her] pants and bend over in
the street. And they took turns raping [her] from behind.” When one man
was raping her, the other was watching for oncoming cars. After being
vaginally raped, the female victim was forced back inside the car to
perform oral sex. Initially, the female victim could not recall if either man
ejaculated. However, she later stated that, at some point, one of the men
ejaculated in her mouth. She could not recall where she was physically
positioned but she gagged, and spit the ejaculate outside the vehicle on the
pavement of the street.

       The female victim recalled that the male victim begged the men to
stop. The men began to leave, but came back. They ordered the male
victim to run down the street while they held the female victim by her hair
at gunpoint. The men then pushed the female victim, and told her to run
and not to look back. The female victim found the male victim, and they
ran down the street knocking on doors until someone gave them a phone to
call 911. The male victim‟s father came to pick them up and later took
them to the crime scene to wait on the police. When the female victim
returned to the scene, her vehicle was still there with the four doors open.

        At trial, the female victim identified photographs from the crime
scene. She specifically identified a photograph of the ejaculate that she spit
out onto the pavement. It was admitted into evidence as collective exhibit
1G. She recalled that the police officers marked exhibit 1G as significant.
She described both men as in their early twenties. She also estimated that
the attack lasted around thirty to forty-five minutes. She stated that the men
were dressed alike. They wore masks, black jeans and sweatshirts, but one
man had on a red shirt and the other a blue shirt. The man with the blue
shirt had a dark complexion and the man with the red shirt had a light
complexion.
                                     -3-
       The female victim was not missing any of her credit cards, but the
men took her ten dollars. She told the police what happened and was given
a gynecological examination that night. The police obtained internal
vaginal swabs and swabs of her mouth. A black light was placed over her
naked body to determine the existence of any pubic hairs or semen. The
police also took the female victim‟s clothes. The female victim stated that
she did not discuss what she was going to tell the police with the male
victim.

       The female victim recalled that, at some point, the two men took
their masks off. However, she could only remember seeing the lighter
complected man‟s face. She and the male victim provided the police with a
sketch; however, she had no input in the sketch developed by the male
victim. She stated that she did not remember anything about the man with
the dark complexion.

       On cross-examination, the female victim acknowledged that she had
trouble remembering the sequence of events; specifically, whether she was
forced to perform oral sex or was vaginally raped first. In regard to the
events leading up to the man‟s ejaculating in her mouth, she said she could
not remember whether both men or only one man forced her to perform oral
sex. She further conceded that she was unsure if the man with the lighter
complexion ejaculated in her mouth. She also admitted that she had
previously misidentified a busboy that she saw at a restaurant from a
photographic lineup as the man with the lighter complexion. This
photographic lineup was admitted into evidence as exhibit 8.

        The female victim explained that the attack occurred in a residential
neighborhood and that the area was illuminated by the headlights on her
vehicle and by various streetlights. She recalled that the inside of the
vehicle was illuminated from the dash board. She explained that the men
wore masks when they pistol-whipped [the male victim] but took them off
during the rape. She had no memory of either man wearing gloves but
stated that both men held her credit cards in their hands.

       The male victim testified and corroborated the female victim‟s
testimony. He explained that when he went outside to meet her that night,
everyone else inside his house was asleep. He stated that the men took his
coat, which contained his wallet and $350. He also had a “stereo face”
inside his coat pocket. The two men also took his earrings, skull cap, and
tennis shoes. He noticed that the men had a silver weapon, and he saw one
of the men forcing the [female] victim to perform oral sex on him.
                                     -4-
       The male victim also distinguished the men by skin tone and said
that the man with the dark complexion had the gun. He saw the darker
complected man, whom he later identified as [the Petitioner], forcing the
[female] victim to perform oral sex on him. The male victim confirmed
that the man with the dark complexion also hit him in the back of the head
with the gun. He went to the hospital and received nine stitches to the head
and had a scar as a result. He provided a statement to the police and
worked on a sketch that same day. The male victim said that he worked on
the sketch which was admitted into evidence as exhibit 2-A. When the
sketches in this case were developed, the male victim and the female victim
were not in the same room.

        The male victim identified [the Petitioner] as the person he saw
forcing the female victim to perform oral sex on him from a photographic
lineup, which was admitted into evidence as exhibit 4. The male victim
testified that it was “the eyes” that stood out to him. He said that the man
was younger than he, 5‟10” tall and 130 pounds. He admitted that he had
previously been confused about whether [the Petitioner] wore a red shirt or
a blue shirt but said he was certain of his identification.

        On cross-examination, the male victim stated that his credit card was
used at a gas station and two other stores within thirty minutes of the
offense. He conceded that in two prior photographic lineups, he identified
another individual as someone who “looked like” the dark complected man.
He clarified that in each of those lineups, he told Detective Sutherland that
he “wasn‟t one hundred percent sure” or was “not positive” of the
identification. Four years after the initial photographic lineups, the male
victim was brought in to view another photographic lineup. Detective
Sutherland told him he had a possible suspect and that there was a DNA
match. The male victim testified that when he identified [the Petitioner]
from the photographic lineup, Detective Sutherland told him that he had
chosen the person confirmed by DNA analysis.

       The male victim‟s sister testified that she was at home on the night
of the offense. She heard noises outside and heard someone say “Make
those „hos run.” She woke her father, went outside, and noticed the female
victim‟s vehicle in front with the doors open and things on top of the roof.
There was no one around at the time. She called the non-emergency
number, and she and her father closed the doors to the vehicle. She later
received a call from a neighbor indicating the female victim and her brother

                                     -5-
       were there and had been hurt. She went inside to upgrade her previous
       non-emergency call to a 911 call.

State v. Christopher M. Black, No. M2007-00970-CCA-R3-CD, 2010 WL 8500217, at
*1-4 (Tenn. Crim. App. Feb. 26, 2010), perm. to app. denied (Tenn. Aug. 26, 2010).
During the subsequent investigation, a sample of bodily fluid was collected from the
crime scene and an “unknown male [DNA] profile” was created. When the unknown
male profile was run through the “CODIS” database, investigators received a “CODIS
hit” matching the unknown male profile to the Petitioner. Based upon this hit, a search
warrant was issued for a sample of the Petitioner‟s blood. A DNA profile base was
developed from the Petitioner‟s blood sample, and testing revealed that the Petitioner‟s
“matched” an evidence swab collected from the victim‟s rape kit which contained semen.
The male victim also identified the Petitioner in a photo lineup. Id. at *4-9. Upon
review, this court affirmed the Petitioner‟s convictions but remanded for a resentencing
hearing “regarding [the Petitioner‟s] sentencing status with respect [to] the 2005
sentencing act and regarding the issue of consecutive sentencing.” Id. at *1.

       Following a hearing on remand, the trial court sentenced the Petitioner to twenty-
five years for each count of aggravated rape and to ten years for each count of aggravated
robbery. The court ordered that the two aggravated rapes be served consecutively but
concurrently to the sentences for robbery, again resulting in an effective sentence of fifty
years. On appeal, this court affirmed the trial court‟s sentences as imposed. State v.
Christopher M. Black, M2010-02176-CCA-R3-CD, 2011 WL 7562957, at *1 (Tenn.
Crim. App. Dec. 13, 2011), perm. to app. denied (Tenn. May 16, 2012).

       On October 18, 2012, the Petitioner timely filed for post-conviction relief alleging
ineffective assistance of counsel. Counsel was appointed to the Petitioner, and a new
petition for post-conviction relief was filed September 4, 2013. At a hearing conducted
June 25, 2014, the Petitioner testified that he had three jury trials in his case: the first
resulted in a mistrial, the second resulted in a hung jury, and the third resulted in his
convictions for aggravated rape and aggravated robbery. Trial counsel represented the
Petitioner in each of the trials and in his two appeals. The Petitioner testified that he
believed trial counsel had been prepared for trial.

       Trial counsel talked to the Petitioner about the evidence against him and about the
defense strategy. The Petitioner testified that the State‟s DNA evidence was a key part of
the case against him but he was unsure of how trial counsel intended to defend against it.
He explained, “I mean, I have no doubt they had DNA evidence against me, but I didn‟t
know what the defense was going to be to defend against the DNA evidence.” The
Petitioner did not recall speaking to trial counsel about his response to the DNA evidence
other than that trial counsel intended to cross-examine the State‟s DNA expert.

                                            -6-
        The Petitioner testified that trial counsel did not discuss the possibility of hiring a
DNA expert for the defense. Moreover, the Petitioner was unaware that trial counsel
could request funds to hire such an expert. The Petitioner testified that, had he known
funds were available, he would have insisted on a DNA expert of his own. The Petitioner
acknowledged, however, that trial counsel attacked the DNA evidence during each of his
trials by attacking the chain of evidence. Trial counsel also attacked the eyewitness
testimony concerning the identification of the Petitioner and vigorously cross-examined
the officers in charge of the investigation. He further acknowledged that several of the
issues raised by trial counsel on direct appeal related to the DNA evidence. The
Petitioner did not call a DNA expert to testify on his behalf at the post-conviction
hearing.

      At the conclusion of the hearing, the post-conviction court entered a written order
denying relief, and the Petitioner filed a timely notice of appeal.

       On March 19, 2015, following briefing by the parties, this court issued an opinion
affirming the post-conviction court‟s denial of relief. See generally Christopher M. Black
v. State, No. M2014-01607-CCA-R3-PC, 2015 WL 1285713 (Tenn. Crim. App. Mar. 19,
2015), perm. app. granted (Tenn. Aug. 21, 2015). Thereafter, counsel for the Petitioner
withdrew from the case, and the Petitioner filed a pro se application for permission to
appeal. On August 21, 2015, the Tennessee Supreme Court entered an order granting the
Petitioner‟s application and remanding the matter to the trial court for entry of a corrected
order denying the petition for post-conviction relief. The Court explained that the
original order entered by the post-conviction court did not accurately reflect what
occurred at the hearing on the petition.

        The post-conviction court filed a supplemental order denying post-conviction
relief on September 16, 2015. In the supplemental order, the post-conviction court
outlined the facts presented at the post-conviction hearing and concluded that the
Petitioner had failed to establish that trial counsel was ineffective. Specifically, the court
found that the Petitioner had failed to present a DNA expert at the post-conviction
hearing to support his claim that counsel was ineffective for failing to present such an
expert at trial. Following the transmittal of the post-conviction court‟s supplemental
order to this court, we allowed the parties time for additional briefing. The Petitioner did
not file a supplemental brief, but the State chose to do so. We will now reconsider this
matter based upon the record, parties‟ briefs, and the supplemental order from the post-
conviction court.

                                            II. Analysis

        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,
                                              -7-
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 trial 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.


         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 two factors: (1) that counsel‟s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Id.; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996). Additionally, review of counsel‟s performance “requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel‟s challenged conduct, and to evaluate the conduct from counsel‟s perspective
at the time.” Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will
not second-guess a reasonable trial strategy, and we will not grant relief based on a
sound, yet ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d
782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that the counsel‟s acts or
omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at
688); see also Baxter, 523 S.W.2d at 936.



                                             -8-
        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).

       The Petitioner contends that he was denied the effective assistance of counsel
based upon trial counsel‟s failure to seek indigent funds and secure a DNA expert for the
defense. In denying relief, the post-conviction court found that the Petitioner had failed
to present a DNA expert at the post-conviction hearing and had failed to show how the
outcome of his trial would have been different had a DNA expert been presented by the
defense. The record supports the post-conviction court‟s findings.

        As we have repeatedly cautioned, a post-conviction petitioner cannot succeed on a
claim that “counsel was deficient [for failing to call] a known witness” unless the
petitioner “produce[s] a material witness who (a) could have been found by a reasonable
investigation and (b) would have testified favorably in support of his defense if called.”
Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). “As a general rule,
this is the only way the petitioner can establish that . . . the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which enured to the prejudice of the petitioner.” Id. at 757. Neither the post-conviction
court nor this court can speculate or guess what a DNA expert‟s testimony might have
been if introduced at trial. See id. Absent the presentation of an expert at the post-
conviction hearing who would have provided relevant evidence, the Petitioner cannot
show deficiency or prejudice.

      Because the Petitioner has failed to demonstrate what expert testimony could have
been presented at trial or how he was prejudiced by the absence of that testimony, we
conclude that the post-conviction court properly denied relief.

                                         III. Conclusion

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

                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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