        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2016

             ARTHUR RAY TURNER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                        No. 95-C-1691 Steve Dozier, Judge


                 No. M2015-01572-CCA-R3-PC – Filed July 22, 2016


The petitioner, Arthur Ray Turner, appeals the denial of post-conviction relief from his
2012 Davidson County Criminal Court jury convictions of especially aggravated
kidnapping, aggravated robbery, aggravated rape, and attempted aggravated rape, for
which he received a sentence of 70 years. In this appeal, the petitioner contends only that
he was denied the effective assistance of counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Chadwick Wyatt Jackson, Nashville, Tennessee, for the appellant, Arthur Ray Turner.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                A Davidson County Criminal Court jury convicted the petitioner of
especially aggravated kidnapping, aggravated robbery, four counts of aggravated rape,
and one count of attempted aggravated rape, and the trial court imposed a 70-year
sentence. This court affirmed the convictions on direct appeal but remanded the case to
modify the especially aggravated kidnapping conviction to reflect the appropriate release
eligibility status. See State v. Arthur Ray Turner, No. M2013-00277-CCA-R3-CD (Tenn.
Crim. App., Nashville, May 28, 2014), perm. app. denied, not for citation (Tenn. 2014).

             In Arthur Ray Turner, this court stated the facts of the case. The defendant
was originally indicted in July 1995 and pleaded guilty to especially aggravated
kidnapping, aggravated robbery, and two counts of aggravated rape. Id., slip op. at 2.
The defendant was later permitted to withdraw his guilty plea, and the case proceeded to
trial in 2012. Id., slip op. at 4. The proof at trial established that the 33-year-old, married
victim was leaving an exercise class at a local fitness center on an evening in March of
1995 when the defendant accosted her at gunpoint and forced his way into her vehicle.
Id., slip op. at 13-14. The defendant drove a short distance, then stopped the vehicle and
forcibly penetrated the victim’s mouth with his penis. Id., slip op. at 14. The defendant
then forced the victim out of the vehicle and bent her over the hood of the vehicle, where
he proceeded to repeatedly but unsucessfully attempt anal penetration. Id., slip op. at 14-
15. Next, the defendant forced the victim into the back seat of her vehicle and vaginally
penetrated her. Id., slip op. at 15. Because the car doors were open and the interior lights
were illuminated, the victim was able to get “a good view” of the defendant. Id.

              Following that attack, the defendant demanded that the victim enter the
trunk of her vehicle. He drove around for a period of time, then stopped the vehicle and
opened the trunk. Id. The lights in the trunk illuminated the defendant’s face. Id. The
defendant, who still possessed a handgun, forced the victim to undress and penetrated her
mouth with his penis. Id. He then forced the victim into the back seat a second time and
once again raped her vaginally. Id. The defendant demanded that the victim return to the
trunk, and, many hours later, she managed to escape when the defendant parked the car
and entered a residence at 7822 Clearwater Court. Id., slip op. at 15-17.

              The victim later identified the defendant from a photographic lineup, and
police officers recovered the victim’s vehicle from 7822 Clearwater Court. Id., slip op. at
17-18. The defendant was also present at the residence, and he admitted kidnapping and
raping a woman. Id., slip op. at 18.

              On December 29, 2014, the petitioner filed, pro se, a timely petition for
post-conviction relief, alleging, inter alia, that he was deprived of the effective assistance
of counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on June 15, 2015.

               At the evidentiary hearing, the petitioner testified that the victim had
“stated that her attacker was 5 foot 5 to 5 foot 8” and looked “just like [the actor] LeVar
Burton.” The petitioner stated that he was “6 foot 2 and a half, light-skinned with hazel
green eyes” and did not “look like LeVar Burton.” Following the victim’s testimony to
this effect, the petitioner asked his two trial attorneys to locate a photograph of LeVar
Burton to assist in his defense, but trial counsel told the petitioner that they had been
unable to find one.



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             The petitioner recalled that the State had sought to prevent the defense from
mentioning the victim’s alleged prior hospitalization for mental health issues. When the
petitioner mentioned this issue to trial counsel, counsel responded that it was nothing “to
worry about.”

               The petitioner testified that he had never been informed that the judge who
presided over his trial in 2012 had been employed by the district attorney’s office in 1995
when the petitioner was indicted. According to the petitioner, trial counsel never raised
the trial judge’s potential conflict of interest as an issue.

             With respect to the petitioner’s indictment, he asserted that the original
warrant or indictment was void because the statute of limitations had expired. The
petitioner maintained that the State was required to issue an amended indictment
following the withdrawal of the petitioner’s guilty pleas, although the petitioner
acknowledged that trial counsel disagreed with him on this point.

               Trial counsel testified that he and a younger associate had represented the
petitioner at trial. Trial counsel stated that he and his associate met with the petitioner
“[m]any times” in preparation for the trial, and trial counsel recalled that the petitioner
“was very adamant” about going to trial and “had very strong opinions” about the
handling of his case. Trial counsel agreed that the evidence against the petitioner “was
quite overwhelming,” and trial counsel stated that he “had very strong reservations about
the proof against” the petitioner.

             With respect to the petitioner’s desire to question the victim about alleged
mental health issues, trial counsel testified that the tactic would not “have been at all
effective.” Trial counsel believed that questioning the victim about having received
counseling would have only served to increase her credibility with the jury and to portray
her in an even more sympathetic light. Trial counsel testified that his strategy was to
pursue mistaken identity rather than fabrication by the victim.

               Trial counsel recalled that the victim had compared the petitioner’s
appearance to LeVar Burton, and he stated that, when he examined a photograph of the
actor, he believed that the “picture actually looked relatively close to” the petitioner.
Because of the perceived similarities between Mr. Burton’s and the petitioner’s
appearances, trial counsel made the strategic decision not to introduce into evidence a
photograph of Mr. Burton, believing that to do so would have been damaging to the
petitioner’s case.

             Trial counsel testified that the petitioner had “grave concerns about how he
had been charged,” believing that new warrants or indictments were necessary following
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the withdrawal of his guilty pleas. Because this was an important issue to the petitioner,
trial counsel conducted research but was unable to find any legal justification for the
petitioner’s position.

               With this evidence, the post-conviction court denied relief, finding that the
petitioner failed to support his claim of the necessity of judicial recusal with any
evidence. The court, in a footnote to its findings, stated that the trial judge “was never
involved in the petitioner’s case,” noting that the petitioner had been arrested on March
16, 1995, and had pleaded guilty on November 16, 1995, but that the trial judge had left
the District Attorney’s office in June 1995. With respect to the victim’s comparison of
the petitioner to LeVar Burton, the court found as follows:

                      The petitioner claims that trial counsel was ineffective
              because he did not properly impeach the testimony of the
              State’s witness that identified her attacker as a 5’5” – 5’8”
              male black who looked like actor LeVar Burton. The [c]ourt
              accredits the testimony of trial counsel, that he did not want
              to introduce the photograph of LeVar Burton because he
              believed that there was a resemblance between them. The
              petitioner testified that it would not be possible to identify
              him as LeVar Burton because the petitioner has light eyes.
              The [c]ourt notes that the victim testified that the attacker
              looked like LeVar Burton, except the eyes. The [c]ourt finds
              that this was a strategic decision by trial counsel to shield the
              jury from finding a resemblance and accrediting the victim’s
              testimony and identification. The petitioner has failed to
              prove this allegation by clear and convincing evidence. The
              issue is dismissed.

                     ....

                      The petitioner’s pro se petition alleges that he is
              entitled to relief based on violations of his constitutional
              rights after his conviction was vacated. The petitioner alleges
              that he was not rearrested or Mirandized after being
              transported from TDOC custody in 2010 to DCSO custody to
              await trial and that the statute of limitations precluded
              prosecution. The [c]ourt accredits the testimony of trial
              counsel, that he was aware of the petitioner’s concerns related
              to this issue and that he did legal research but did not find any
              basis to support this position. The [c]ourt finds no merit to
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              these various issues. The petitioner has failed to prove these
              allegations by clear and convincing evidence. The issues are
              dismissed.

               In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to introduce into
evidence a photograph of LeVar Burton, by failing to question the victim about an
alleged history of mental illness, by failing to seek recusal of the trial judge, and by
failing to raise an issue regarding the lack of a new charging instrument. The State
contends that the court did not err by denying relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

             When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
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used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In our view, the record fully supports the ruling of the post-conviction
court. Trial counsel testified – and the trial court explicitly accredited his testimony –
that he chose not to introduce into evidence a photograph of LeVar Burton because the
petitioner’s passing resemblance to the actor could have been potentially detrimental to
the petitioner’s case. Likewise, trial counsel stated that he elected not to question the
victim about any alleged mental health issues because he believed that to do so would
have only increased the jury’s sympathy toward the victim. We will not second-guess
these reasonable trial strategies. See Adkins, 911 S.W.2d at 347. Furthermore, trial
counsel testified that he researched the issue of the adequacy of the charging instruments
and determined that no legal justification existed to pursue the issue. Again, this
testimony was explicitly accredited by the trial court, and because of trial counsel’s
adequate preparation, this tactical decision does not entitle the petitioner to relief. See
Cooper, 847 S.W.2d at 528. Finally, the petitioner has failed to demonstrate that he was
prejudiced by trial counsel’s failure to seek recusal of the trial judge. See, e.g., Owens v.
State, 13 S.W.3d 742, 757 (Tenn. Crim. App. 1999), perm. app. denied (Tenn. Feb. 28,
2000) (holding that trial court did not abuse its discretion by denying recusal motion
when trial judge had been one of 70 employees of the local district attorney’s office and
had never been assigned to the petitioner’s case). As such, we hold the petitioner has
failed to prove by clear and convincing evidence that trial counsel’s representation was
deficient or prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.
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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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