                                                                                                          02/03/2020
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                            Assigned on Briefs September 17, 2019

              ROBERT AARON WHITE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Montgomery County
                   No. 40901441       William R. Goodman, III, Judge
                        ___________________________________

                               No. M2018-01861-CCA-R3-PC
                           ___________________________________

A Montgomery County Grand jury indicted the Petitioner, Robert Aaron White, for
multiple offenses including first-degree, premeditated murder. A petit jury convicted the
Petitioner of the lesser included offense of second-degree murder, and he received a
sentence of twenty-three years imprisonment. State v. Robert Aaron White, No. M2011-
01985-CCA-R3-CD, 2013 WL 2432372, at *1 (Tenn. Crim. App. June 4, 2013).
Following denial of his appeal, the Petitioner filed a petition seeking post-conviction
relief, alleging, inter alia, that trial counsel was ineffective based on the following
grounds: (1) failure to investigate the victim’s criminal history and to introduce at trial
evidence of the victim’s prior bad acts, (2) failure to investigate and introduce evidence
of the prior bad acts of one of the State’s witnesses, and (3) failure to properly move the
trial court for an order allowing the Petitioner to cover his tattoos at trial.1 The post-
conviction court denied relief by written order, and the Petitioner appealed. Following
our review, we affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.

Douglas A. Trant and Julia Anna Trant, Knoxville, Tennessee, for the Petitioner, Robert
Aaron White.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Robert Nash,
Assistant District Attorney General, for the Appellee, State of Tennessee.

        1
          The Petitioner raised over 50 additional issues in his pro se and amended petitions for post-
conviction relief. Because the above three issues are the only issues raised in his brief before this court,
any other remaining issues are waived.
                                        OPINION
       As relevant to the issues raised in this appeal, the facts as outlined in our opinion
affirming the Petitioner’s conviction on direct appeal provide as follows:

               On October 6, 2009, William Rostorfer went to the home of the
       victim, Jimmy Yeager, with Mr. Rostorfer’s mother-in-law, Luella Tower,
       to pick up [the victim] and take him back to Ms. Tower’s house. When
       they arrived, [the victim] “was upset.” Mr. Rostorfer testified that [the
       victim] was on the phone “with some guy, and they were arguing and
       fighting.” As they were getting ready to leave, they saw a red car “coming
       down the hill.” The car drove slowly past the driveway and turned around
       and came back. Mr. Rostorfer and [the victim] handed their keys and
       wallet to Ms. Tower and walked down the driveway toward the road. Mr.
       Rostorfer testified that he “was just worried [the victim] might get
       jumped[.]” He testified that the red car stopped in front of the driveway,
       and he heard “‘I’ve got something for you and pop.” He heard “a couple of
       pops [gunshots],” and he ducked and ran. He could not see how many
       people were inside the car. He saw a “flash coming out of the car.” He
       testified that the victim “was squirting blood out of his back,” and thus Mr.
       Rostorfer knew the victim had been shot. The victim told Mr. Rostorfer
       that [the Petitioner] “was the one that did it.” Mr. Rostorfer did not know
       [the Petitioner] before the incident. He testified that since the incident, [the
       Petitioner] told him, “‘if nobody testified [,] then [Rostorfer’s] family
       would quit getting threatened.’” [The Petitioner] told him that while the
       two men were incarcerated together. He testified that he and the victim
       were about ten feet away from the car when the shots were fired and that no
       one ever got out of the car.

              Luella Tower testified that [the victim] had called her on the night of
       the incident and asked her to pick him up and take him to her house. When
       she got there[,] he told her that someone was coming to his house to fight
       him. She testified that they were standing in the driveway talking. [The
       victim] said that he was going inside to get a shirt when they saw a car
       drive down the street and turn around. [The victim] said, “‘that’s him’” and
       told Ms. Tower to get in her car. She got in her car and watched [the
       victim] and Mr. Rostorfer walk down the driveway towards the car. They
       said they didn’t “want no trouble [sic].” She then heard someone inside the
       car say [,] “‘I got something for you,” and she heard gunshots. She could
       not identify anyone inside the vehicle. Mr. Gay lay [the victim] in the
                                            -2-
grass. [The victim] told Ms. Tower that he was dying and that [the
Petitioner] had shot him.

       Scott Gay went to [the victim’s] house with Ms. Tower. He testified
that when they arrived, [the victim] “was saying something about fighting
somebody, with Robert or with Rob.” Mr. Gay was standing in [the
victim’s] driveway when he saw a red car drive past and turn around and
stop at the end of the driveway. [The victim] said, “here he is,” and [the
victim] and Mr. Rostorfer walked towards the car. [Mr. Gay] saw the
driver of the vehicle and identified [the Petitioner] at trial as the driver. Mr.
Gay heard [the victim] say, “holy shit” and run back up the driveway. Mr.
Gay then heard gunshots and saw [the victim] get hit. Mr. Gay testified
that “about three weeks [earlier, the Petitioner] jumped [him] from behind.”
He testified that he went to [the victim’s] house on that prior occasion
“because he ha[d] some beers over there,” and that [the Petitioner] was also
there. Mr. Gay testified that it was a “one-sided beating.”

       Assistant medical examiner John Davis performed the victim’s
autopsy. The victim died from a gunshot wound to the torso, and the
manner of death was homicide. The bullet entered the victim’s back and
exited his chest. There was no soot or stippling around the wound,
indicating that the victim was shot from “at least two feet away.” The
victim had multiple tattoos on his arms, torso, head and neck.

                                  ***

      Investigators recovered two shell casings in the road. The victim
and Mr. Gay and Mr. Rostorfer were unarmed.


                                  ***

[The Petitioner] testified that he was 29 years old at the time of trial. He
moved with his then wife from California to Tennessee in 2004. In October
2009, he was living in Clarksville with his girlfriend, Valerie Estep, and
Ms. Estep’s child Kaylee. The victim’s brother Darren was the father of
Ms. Estep’s child, and [the Petitioner] took the child to see the victim and
his mother because “Valerie d[id]n’t want nothing [sic] to do with the
Yeagers, whether it’s Margarita [the child’s grandmother] or Kaylee’s
father.” [The Petitioner] testified, “I like Margarita. I feel bad for what
                                      -3-
       happened. I liked [the victim].” [The Petitioner] testified that before they
       “started falling out towards the end of [their] relationship [they] were
       always together.” [The Petitioner] eventually “cut[ ] ties with [the victim]”
       because of incidents between Ms. Yeager and Ms. Estep involving the
       victim’s niece. [The Petitioner] testified that for two weeks prior to the
       shooting, he refused to answer [the victim’s] phone calls.

               [The Petitioner] testified that he gave [the victim] tattoos. He
       testified that [the victim] wanted a tattoo on his face, and [the Petitioner]
       “wrote Kaylee [and] stamped it on his face.” He also “put a cross on his
       cheek ..., and [he] put a teardrop on his eye ..., on his left side.” [The
       Petitioner] also “put So Cal for southern California” on [the victim’s] neck.
       [The Petitioner] testified that [the victim] wanted a teardrop tattoo
       “[b]ecause [the victim] told [the Petitioner] he [had] killed someone
       before.”

              [The Petitioner] testified that on October 6, 2009, [the victim]
       “wanted to fight” him. He testified that [the victim] “wouldn’t stop
       calling,” and [the Petitioner] tried to ignore [the victim’s] calls. [The
       Petitioner] testified that he “didn’t want no [sic] problem” and that he “was
       already scared of [the victim].” [The Petitioner] drove to [the victim’s]
       house and took “some beers” with him. As he approached the house, he
       saw [the victim] and “that big ole white boy,” and [the Petitioner] drove
       past the house and turned around because the road ended at a dead end. As
       he drove back towards the house, he saw [the victim] and Mr. Rostorfer
       throwing their shirts down and “com[ing] down the driveway.” He saw Mr.
       Rostorfer “reaching behind his back.” Rostorfer and [the victim] were
       “about seven to ten feet” away from [the Petitioner’s] car, and [the
       Petitioner] “grab[bed][his] pistol [and he] bust twice.” He testified that the
       two men were larger than him and they were “bum-rushing him” and he
       was afraid they were “going to beat the shit out of [him].” [The Petitioner]
       shot twice. Then he turned away from them and shot once more and drove
       away. [The Petitioner] testified that he “never, ever, ever, ever, never once
       ... aimed at anybody; [he] never once deliberately tried to shoot [the
       victim].” He testified he “was trying to back them up off of [him]” and that
       he “had zero intentions of killing anybody.”

Id. at *2-4.



                                           -4-
        Based on the above proof, the jury convicted the Petitioner of the lesser included
offense of second-degree murder. In his direct appeal to this court, the Petitioner raised
issues similar to the issues raised in this appeal; namely, whether the evidence was
sufficient to support his conviction and whether the trial court erred in refusing to allow
the Petitioner to cover his facial tattoos during trial. Robert Aaron White, 2013 WL
2432372, at *1. In review of the sufficiency of the evidence, the Petitioner argued, inter
alia, that the State failed to prove that the Petitioner did not act in self-defense because
multiple witnesses testified that the victim and Rostorfer intended to shoot him or drag
him from his vehicle and beat him. This court observed that the Petitioner’s self-defense
theory was rejected by the jury and reasoned further as follows:

       While there was evidence at trial that the victim anticipated a fight with
       [Petitioner], we conclude that the State sufficiently proved that [Petitioner]
       did not act in self-defense when he fired three shots out of his car window
       at Rostorfer and the victim, striking the unarmed victim in the back, and
       then drove away. Although [Petitioner] testified that he was afraid of [the
       victim] and Rostorfer, he drove to [the victim’s] house and fired his gun
       from a moving car without knowing whether the victim was armed or
       unarmed.

Robert Aaron White, 2013 WL 2432372, at *6. Finally, the Petitioner argued that he was
“unfairly prejudiced by the trial court’s refusal to allow” the Petitioner to cover his facial
tattoos with makeup during trial. (Emphasis in original). The Petitioner asserted that his
tattoos “had no relevant purpose at trial” because he did not dispute his identity as the
shooter. This court determined that the Petitioner had waived this issue by failing to raise
it at trial and by having first raised the issue in his motion for new trial. Id.

       On June 2, 2014, the Petitioner filed a pro se petition for post-conviction relief,
raising fifty-seven claims of ineffective assistance of counsel. Following the appointment
of counsel, the Petitioner filed five amended petitions for post-conviction relief, raising
several additional claims for relief. The post-conviction court held an evidentiary hearing
on August 14, 2018.

       Before the hearing, the victim’s criminal history with affidavits were provided as
an addendum to the post-conviction petition and subsequently admitted as an exhibit to
the hearing. There was no testimony from the affiant’s or the complainant’s regarding
the offenses listed in victim’s criminal history. The Petitioner testified that he knew the
victim, Jimmy Yeager, prior to the offense, because the Petitioner was dating Valerie
Estep, and the victim’s brother is the father of Estep’s daughter. The Petitioner intimated
that he served as an intermediary between the victim’s mother and Estep on childcare
                                            -5-
arrangements because Estep “had issues” with the Yeager family. At trial, the Petitioner
also explained that a few weeks before the offense he “had words” with the victim’s
mother concerning her granddaughter, which angered the victim and prompted him to
want to fight the Petitioner. Prior to this, the Petitioner had maintained a good
relationship with the victim and the Yeager family. The Petitioner believed in
maintaining this relationship because he hoped “whoever [was] around [his daughter]
would allow her grandmother to see her.”
        The Petitioner said that he spent a lot of time with the victim and described the
victim as aggressive. He described himself, however, as “a little guy[.]” “[T]he [victim]
[was] a lot bigger than me but would get drunk and just get belligerent and want to fight a
lot or try to destroy my property[.]” The Petitioner also testified that prior to trial he
advised trial counsel (1) that he witnessed the victim beat up his mother; (2) that the
Petitioner had tattooed a teardrop under the victim’s left eye, a symbol that a person had
killed another, because the victim told him that he had, in fact, killed someone; (3) that he
was scared of the victim because “he was a big old guy[;]” and (4) that the victim was a
member of a gang. The Petitioner stated that he knew the victim had a criminal record,
and, when asked if he told his trial counsel about this, he said, “I mean, it’s public
record.”

       The Petitioner testified that he also knew William Rostorfer, a witness for the
State at trial, and described him as a “really big white guy who thought he was tough.”
He told trial counsel to check the Petitioner’s phone for records of calls from the victim
because the victim would “constantly call [him]…cussing and this and that[,]” and the
Petitioner was scared. The Petitioner testified that both the victim and Rostorfer had
criminal records and that trial counsel knew about this prior to trial. He stated that the
victim had a knife on him that day, and trial counsel “knew that there was a knife on
him[.]” The Petitioner testified that he wished to cover his tattoos at trial, that he was not
allowed to do so, and that trial counsel “never filed a motion to even let [him] cover his
tattoos[.]”

       On cross-examination, the Petitioner confirmed that he testified at trial that he put
a teardrop tattoo under the victim’s left eye and that the victim told him it was because he
had killed someone. Regardless of this knowledge, the Petitioner continued to “h[a]ng
out” with the victim four to five times a week. Even though the Petitioner told trial
counsel that the victim had a criminal history and was in a gang, the Petitioner was
aggrieved because trial counsel never asked him about these things during trial. The
Petitioner believed he could not raise these issues at his trial on his own. He said that
everyone he “hung around with” carried a gun, but he confirmed that he did not see a gun
in the possession of the victim or Rostorfer on the night of the offense. The Petitioner
believed his “trial was rigged,” and he was “bamboozled” by his trial counsel. He also
                                            -6-
said he was not asked about Rostorfer’s criminal history at trial. On redirect
examination, the Petitioner testified that he recalled the State discussing the victim’s
“run-ins with the law” during its closing argument.

       Trial counsel testified that he became an attorney in 2001, and that over fifty
percent of his practice at the time of the Petitioner’s trial was criminal law. He was
retained by the Petitioner and initially talked to the Petitioner’s girlfriend and mother.
Trial counsel met with the Petitioner frequently at the Montgomery County jail as the
case progressed and provided the Petitioner with the discovery. Trial counsel testified as
follows about his discussions with the Petitioner concerning the victim’s criminal history:

       The issue for us was I don’t think he had knowledge of any criminal
       history, but we had talked about self-defense and what the realities were of
       using self-defense and so the issue was what’s new [sic] [he knew] at the
       time about [the victim]? And so, when we got closer to trial, we began to
       prep him for direct examination and the issue is what he could testify to that
       he knew at the time of trial--at the time of the incident.

Trial counsel told the Petitioner to “testify on the stand to what he knew.” He did not
remember the Petitioner telling him about the victim beating up his mother. Regarding
Rostorfer’s criminal history, trial counsel testified that he did not believe that the
Petitioner knew Rostorfer very well. He said that part of the Petitioner’s defense theory
was that the victim and his associates showed signs of aggression towards the Petitioner
before he shot the victim.

       Trial counsel did not recall the State putting on any proof as to the Petitioner’s or
the victim’s tattoos. He stated that he addressed the issue of tattoos in voir dire and
during the Petitioner’s testimony. He stated that co-counsel had received makeup from
the Petitioner’s family to cover up the Petitioner’s tattoos at trial, but the trial court did
not allow him to use the make-up. He did not remember any discussion surrounding
tattoos at trial, other than the victim’s teardrop tattoo.

       Trial counsel requested and received a jury instruction on self-defense. He did not
remember whether the Petitioner told him that the victim was affiliated with a gang.
Trial counsel believed that the Petitioner and the victim were in an argument concerning
custody of the Petitioner’s girlfriend’s daughter, who was the victim’s niece. Trial
counsel recalled that the Petitioner drove over to the victim’s house and fired shots when
he saw the victim and two others coming down the driveway. Trial counsel said that the
Petitioner was afraid of the victim’s brother, the father of his girlfriend’s child, who was

                                            -7-
in prison at the time of the offense. He said the Petitioner had expressed fear that there
was going to be a fight over his girlfriend’s child.

       On cross-examination, trial counsel recalled the State saying in its opening
statement that the victim was not a perfect man. He agreed this could have possibly
opened the door for him to introduce the victim’s criminal record, but he did not do so.
He agreed further that it could have been helpful for the jury to know about the victim’s
criminal record. He said that he spoke with a private investigator who looked into the
victim’s gang associations. He did not introduce any evidence of gang association at trial
because he believed that the Petitioner was also associated with gangs. Trial counsel
excluded this evidence, reasoning that he wanted the case to be about a child custody
dispute, not gangs. However, trial counsel agreed that the Petitioner never told him that
he was in a gang. He agreed that the victim had a teardrop tattoo under his left eye, and
he knew this signified that the victim had killed someone.

        Trial counsel made an oral motion before trial to allow the Petitioner to cover his
tattoos, but he did not file a written motion with the trial court. He agreed that there was
no strategic benefit to letting the jury see the Petitioner’s tattoos, and, therefore, it was
error on his part not to make the motion on the record. Finally, he agreed that the
Petitioner told him that he was afraid of the victim and his brother because of their
relative sizes. Trial counsel emphasized that the Petitioner did not know the victim’s
criminal history at the time of the incident. He stated that he and co-counsel had
researched the issue of self-defense prior to trial, but he could not recall the exact cases
that he relied upon. The Petitioner told trial counsel that he was scared when he saw the
victim and Rostorfer coming towards his car, and he understood that they were ready to
fight when they took off their shirts. He agreed that it could have been important “to
corroborate that fear with the criminal records of [Rostorfer] and [the victim][.]”

        On redirect examination, trial counsel emphasized that the Petitioner did not tell
him about the victim’s gang affiliation. He stated that the Petitioner told him that there
was going to be an altercation between him and the victim “whether it was going to
happen that night or sometime later[.]” He believed that the Petitioner was fortunate to
have received a self-defense jury instruction from the trial court, and he stated that the
Petitioner “testified the way [they] had hoped he would[.]” On recross examination, trial
counsel testified that the victim and Rostorfer were not the “initial aggressors[.]” When
asked about the victim’s gang affiliation, trial counsel stated, “I knew that at the very
least that there were gang members involved in this case and my concern as far as our
strategy was I wanted this to be about a custody case and not to turn it into a gangland
killing.”

                                            -8-
       On September 20, 2018, the post-conviction court entered an order denying post-
conviction relief. On October 10, 2018, the Petitioner filed a timely notice of appeal, and
this case is now properly before this court.

                                       ANALYSIS

        On appeal, the Petitioner argues that trial counsel was ineffective based on the
following grounds: (1) failure to investigate the victim’s criminal history and to introduce
at trial evidence of the victim’s prior bad acts, (2) failure to investigate and introduce at
trial evidence of prior bad acts of the State’s witness, and (3) failure to properly move the
trial court for an order allowing the Petitioner to cover his facial tattoos. The State
responds that the Petitioner failed to prove these allegations by clear and convincing
evidence, and, as such, the post-conviction court properly denied him relief. We agree
with the State.

       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. Tenn. Code Ann. § 40-30-103. The Tennessee Supreme Court has
held:

       A post-conviction court’s findings of fact are conclusive on appeal unless
       the evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of
       their testimony are matters for the trial court to resolve. The appellate
       court’s review of a legal issue, or of a mixed question of law or fact such as
       a claim of ineffective assistance of counsel, is de novo with no presumption
       of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).



                                            -9-
       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘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. at 370 (quoting Strickland, 466 U.S. at 694). “Because a petitioner
must establish both prongs of the test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim.” Id.

       “In evaluating an attorney’s performance, a 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.” State v. Burns, 6 S.W.3d 453, 462
(Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,
we note that this “‘deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

       I. Failure to investigate and introduce evidence of the victim’s criminal
history and prior bad acts. Relying upon State v. Ruane, 912 S.W.2d 766, 781-82
(Tenn. Crim. App. 1995), abrogated on other grounds by State v. Rogers, 992 S.W.2d
393, 401 (Tenn. 1999), the Petitioner argues that trial counsel was ineffective for failing
to investigate and introduce certain evidence which would have corroborated the
Petitioner’s fear of the victim and bolstered his theory of self-defense at trial.
Specifically, the Petitioner insists that the victim’s criminal history, the victim’s alleged
gang affiliation, the significance of the teardrop shaped tattoo under the victim’s left eye,
and an incident during which the victim had beaten up his mother were all relevant and
admissible at trial to establish the victim as the first aggressor. In response, the State
contends that the Petitioner has failed to establish that the trial court would have found a
factual basis for the victim’s alleged “tendencies of first aggression,” and that “simply
stating that the victim was charged or convicted is not sufficient.” For the reasons that
follow, we agree with the State.
                                           - 10 -
        Generally, “[e]vidence of a person’s character or trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Tenn. R. Evid. 404(a). However, when a defendant relies on a theory of self-
defense, contending that the alleged victim of a violent crime was the first aggressor, the
defense may offer evidence of the victim’s prior history of violent conduct. Ruane, 912
S.W.2d at 781-82. To be clear, this court has placed “a distinction between evidence of
prior acts of violence by the victim used to corroborate the defense theory that the victim
was the first aggressor and that used to establish the defendant’s fear of the victim.” Id.
at 779.

       In cases where a defendant seeks to use evidence of the victim’s prior bad acts to
establish the defendant’s own fear of the victim, the defendant must testify that he or she
was aware of the victim’s prior bad acts against third parties at the time of the alleged
self-defense to be admissible as substantive evidence of the defendant’s state of mind.
State v. Chancy Jones, No. W2010-02424-CCA-R3-CD, 2012 WL 1143583, at *7 (Tenn.
Crim. App. Apr. 5, 2012); State v. Samuel Sherrill, No. M2009-01979-CCA-R3-CD,
2011 WL 1564009, at *7 (Tenn. Crim. App. Apr. 21, 2011) (citing Williams v. State, 565
S.W.2d 503, 505 (Tenn. 1978) and State v. Hill, 885 S.W.2d 357, 361 n. 1 (Tenn. Crim.
App. 1994)). If the defendant is aware of the prior violent acts, he may testify about what
he observed or had been told about the prior acts. Id. If the State questions his basis of
knowledge concerning the prior violent acts, then the defendant may introduce the
corroborating witnesses in rebuttal. Id. These witnesses may only testify as to what they
told the defendant, not as to what they personally observed. Id.

        However, in cases where it is alleged that the victim was the first aggressor and
the defendant is unaware of the victim’s prior bad acts, the defendant may offer evidence
through the testimony of a third person to support this assertion. Ruane, 912 S.W.2d at
781-82; Neil P. Coen, et al., Tennessee Law of Evidence § 4.04[5][d] (5th ed. 2005)
(“[I]n a criminal case where there is some evidence suggesting that the victim was the
first aggressor, the defendant may offer proof of the victim’s prior violent acts with third
persons.”); Hill, 885 S.W.2d at 357; State v. Furlough, 797 S.W.2d 631, 649 (Tenn.
Crim. App. Apr. 10, 1990), perm. app. denied (Tenn. July 23, 1990) (“[W]hether the
defendant knew of that reputation is irrelevant.”). This evidence is considered
corroborative evidence, not substantive. Ruane, 912 S.W.2d at 781-82. In other words,
the evidence cannot be used substantively, and as such, it is not controlled by Tennessee
Rules of Evidence 404(a)(2) and 405. State v. Chancy Jones, No. W2010-02424-CCA-
R3-CD, slip op. at 11 (Tenn. Crim. App. Apr. 5, 2012), perm. app. denied (Tenn. Aug.
16, 2012). However, the evidence is “at minimum, subject to the balancing test set forth
in Tennessee Rule of Evidence 403.” Id. (citing State v. Marquette Houston, No.

                                           - 11 -
W2006-00095-CCA-R3-CD, 2007 WL 1890650, at *8 (Tenn. Crim. App. June 29, 2007),
perm. app. denied (Tenn. Nov. 19, 2007)).

       Finally, before a trial court can admit evidence of the victim’s prior violent acts to
corroborate the defendant’s claim that the victim was the first aggressor, three
requirements must be satisfactorily met: (1) the issue of self-defense must be raised by
the proof and not simply by statements of counsel; (2) there must be a factual basis for
the defendant’s claim that the victim had first aggressor tendencies; and (3) the probative
value of the evidence must outweigh the danger of unfair prejudice. Ruane, 912 S.W.2d
at 781-82.

       In denying relief as to this issue, the post-conviction court determined as follows:

              In this case the Petitioner testified, and [he] did not testify as any
       knowledge of prior violent actions of the victim. Petitioner did testify that
       he was afraid of the victim because of the size of the victim, but no mention
       was made of any specific occurrences. The introduction of such criminal
       record would amount to an effort to prove the character of the victim, in
       order to show action in conformity with such character trait, which is
       precluded by Rule 404(b) of the Tennessee Rules of Evidence. This court
       does not find that counsel was ineffective as a result of not attempting to
       introduce such criminal record.

        Here, the Petitioner argues that he relied on the theory of self-defense at trial,
which was undermined by trial counsel’s failure to investigate or admit into evidence the
criminal history of the victim. We observe at the top of our analysis that the Petitioner
conflates the law concerning evidence of the victim’s prior bad acts as used to establish
the defendant’s own fear of the victim with the law concerning prior bad act evidence
used to corroborate a defendant’s theory of self-defense, alleging the victim was the first
aggressor. In either case, the Petitioner has failed to establish deficient performance or
prejudice. The record shows that trial counsel did not object to the State’s comments in
opening statement that the victim “wasn’t a perfect man” and had “run-ins with law
enforcement.” Trial counsel also agreed that the victim’s criminal history may have been
helpful during trial. Nevertheless, trial counsel repeatedly testified that the Petitioner was
not aware of any criminal history of the victim at the time of the offense. Trial counsel
emphasized, consistently with the above law, that their strategy was to focus on what the
Petitioner knew about the victim at the time of the offense, and that the Petitioner
testified consistently with their trial preparation. Accordingly, to the extent the Petitioner
sought to admit the victim’s criminal history as substantive evidence of his state of mind
and fear of the victim, we agree with the post-conviction court, and conclude that the

                                            - 12 -
Petitioner has failed to establish that trial counsel provided ineffective assistance of
counsel.

        To the extent that the Petitioner sought to admit the victim’s criminal history to
corroborate his theory of self-defense and show that the victim was the first aggressor,
the record shows that trial counsel was primarily concerned with mitigating the first-
degree premeditated murder charge. Trial counsel focused on the events immediately
prior to the shooting, when the Petitioner observed the victim and the two other men in
the driveway, walking toward the Petitioner’s car and taking their shirts off. Trial
counsel further explained that in “[the Petitioner’s] world,” these actions were aggressive
and threatening. However, trial counsel was leery of categorizing the victim as the
“initial” aggressor because the Petitioner drove to the victim’s house, was armed with a
gun, shot outside the window of his car multiple times, and struck the unarmed victim in
the back. In fact, trial counsel agreed that he was fortunate to have received a self-
defense instruction from the trial court. With this said, the first Ruane factor, whether the
issue of self-defense is raised by the proof, is satisfied, albeit marginally so.

        Next, we must determine the second Ruane factor, whether there is a factual basis
for the Petitioner’s claim that the victim had first aggressor tendencies. In support of this
factor, the Petitioner admitted as an exhibit the victim’s criminal history along with
supporting affidavits of complaint. However, this court has repeatedly held the fact of a
conviction or an arrest alone is inadequate to corroborate allegations that a victim may
have been the first aggressor; instead, the defendant must present competent proof of the
underlying facts of the alleged prior acts of aggression. State v. Laterral Jolly, No.
02C01-9207-CR-00169, 1993 WL 523590, at *4 (Tenn. Crim. App. Dec. 15, 1993) (“The
mere fact that one has a conviction on his record, does not necessarily prove that he was
the first aggressor, or that he even committed an aggressive act. . . . Rather than
considering the record of conviction alone, the trial court must determine the underlying
facts of the alleged act of aggression.”), perm. app. denied (Tenn. May 16, 1994); see
also Chancy Jones, 2012 WL 1143583, at *8 (concluding that the victim’s “orders of
protection were not relevant on the issue of the victim’s first-aggressor tendencies
without some evidence regarding the factual basis supporting the protective orders”);
Derek T. Payne v. State, No. W2008-02784-CCA-R3-PC, 2010 WL 161493, at *14
(Tenn. Crim. App. Jan. 15, 2010) (evidence failed to support claim of a violent reputation
or prior violent acts where the Petitioner offered only a “Record of Arrest” which showed
that the victim was arrested for unlawful possession of a weapon, and an affidavit of
complaint showing facts leading to a misdemeanor conviction for harassment). Because
the Petitioner failed to provide any testimony explaining the underlying nature,
circumstances, or outcome of the offenses listed in the victim’s criminal history and
supporting affidavits, we are unable to evaluate the third Ruane factor. Accordingly,

                                           - 13 -
based on this record, the Petitioner has failed to establish deficient performance or that he
was prejudiced by counsel’s failure to investigate or introduce the victim’s criminal
history at trial. The Petitioner is not entitled to relief.

        In a related issue, the Petitioner also argues that trial counsel was ineffective for
failing to introduce evidence that the victim had beaten up his mother and evidence that
the victim was affiliated with a gang. Generally citing “the Ruane Rule,” but without
providing this court with argument or analysis, the Petitioner claims this evidence would
have substantiated his claim that he was in fear of the victim and strengthened his claim
of self-defense. At the post-conviction hearing, trial counsel testified that he did not
remember the Petitioner telling him that the victim had beaten his mother. Trial counsel
also intentionally chose not to inquire about the victim’s gang affiliation because he
wanted the case to be centered on a child custody dispute rather than a “gangland
killing.” The post-conviction court determined that the Petitioner testified at trial and did
not testify concerning his knowledge of the incident between the victim’s mother and the
victim. The post-conviction court impliedly accredited the testimony of trial counsel and
determined that the Petitioner failed to establish prejudice. The record does not
preponderate against the finding of the post-conviction court regarding the incident
between the victim and his mother. We also conclude that trial counsel engaged in an
informed and reasonable trial strategy in not asking the Petitioner about the victim’s gang
affiliation. The Petitioner is not entitled to relief as to this issue.

       Finally, the Petitioner contends that trial counsel was deficient in failing to
introduce any evidence at trial regarding the significance of the victim’s teardrop tattoo,
which would have served to corroborate the Petitioner’s fear of the victim. He also
argues that trial counsel failed to object to the State’s introduction of a photograph of the
victim without facial tattoos. Contrary to the Petitioner’s argument, the record of the trial
transcript reflects that trial counsel did in fact ask the Petitioner what the Petitioner had
tattooed on the victim, and the Petitioner said that he put a teardrop under his left eye.
The Petitioner further testified at trial that the victim told him he wanted a teardrop tattoo
because the victim had killed someone before. In so much as the Petitioner claims that
the State’s photograph of the victim without the teardrop tattoo discredited his testimony
and mislead the jury, we note that the medical examiner also testified as to the condition
of the victim’s body at the time of the offense. The medical examiner testified that the
victim had multiple tattoos on the victim’s arms, torso, head, and neck. On cross-
examination, defense counsel specifically asked the medical examiner whether the victim
had a teardrop shaped tattoo on his body. The medical examiner confirmed that the
victim had a teardrop shaped tattoo underneath his left eye at the time of the autopsy.
The Petitioner has failed to establish deficient performance or prejudice to his case in
regard to this issue.

                                            - 14 -
        II. Failure to introduce William Rostorfer’s prior bad acts. Next, the
Petitioner again relies generally on Ruane in arguing that trial counsel was ineffective for
failing to introduce evidence of Rostorfer’s prior bad acts, which he claims would have
bolstered his self-defense theory. He claims that Rostorfer’s charges of aggravated
assault, reckless homicide, and negligent homicide should have been admitted into
evidence at trial, even though these charges were ultimately dismissed. A review of the
trial transcript shows that Rostorfer testified that he had “never seen [the Petitioner]
before [the offense date], never even heard his name before that day[.]” At the post-
conviction hearing, trial counsel testified that he did not believe that the Petitioner knew
Rostorfer very well at the time of the incident. Trial counsel also agreed that it could
have been important to the Petitioner’s self-defense theory to introduce evidence of
Rostorfer’s prior bad acts. However, the only proof of Rostorfer’s charges was a three-
page, court print out, which was an addendum to the Petitioner’s third amendment to his
petition for post-conviction relief. Accordingly, based on the same authority articulated in
section I, infra, concerning this court’s inability to evaluate the victim’s criminal history,
the Petitioner has failed to establish deficient performance or prejudice. The Petitioner is
not entitled to relief on this issue.

        III. Failure to file a written motion to allow the Petitioner to use makeup to
cover his tattoos at trial. The Petitioner contends that trial counsel was ineffective in
failing to make a formal motion on the record to allow the Petitioner to cover his facial
tattoos with makeup at trial. He argues that “people with facial tattoos might already be
at a greater risk to be judged guilty and to go to prison in the first place[.]” Friederike
Funk and Alexander Todorov, Criminal Stereotypes in the Courtroom: Facial Tattoos
Affect Guilt and Punishment Differently, Psychology, Public Policy, and Law, Vol. 19
No. 4, 466-478 (2013). In response, the State contends that “the [P]etitioner is not
entitled to relief because he has failed to show he would have prevailed on appeal had the
issue been properly preserved.” We agree with the State.

       In its order denying relief as to this issue, the post-conviction court reasoned, in
pertinent part, as follows:

       Petitioner contends trial counsel was ineffective by not filing a written
       motion seeking to have the tattoos on the face of the Petitioner covered
       with makeup. The record reflects that counsel made an oral request of the
       trial judge, but that such request was denied. While there does not appear
       to be any Tennessee cases dealing with this issue, it is noted that the
       California courts have considered the issue in this case of U.S. v. Quintero,
       933 F.2d 1017 (Cal. 1991), in which the court held that all tattoos, as a
                                            - 15 -
       general matter, do not create juror prejudice sufficient to violate a
       Defendant’s right to a fair trial. A Texas court, in the case of Gonzalez v.
       Quarterman, 458 F.3d 384 (2006), in considering a case in which the
       Defendant was before the court on a Writ of Habeas Corpus, after having
       been found guilty of capital murder in state court, found that the Defendant
       had not received ineffective assistance of counsel as a result of the
       prosecution introducing a witness testifying concerning teardrops tattooed
       on the face of the Defendant. The court reasoned that tattoos are subject to
       various interpretations, and that there was no proof as to whether such
       teardrops related to the subject offense. Gonzalez v. Quarterman, 458 F.3d,
       at 395 (Texas 2006). As relates to this issue this court finds that the
       Petitioner has failed to establish by clear and convincing evidence that
       counsel’s performance was deficient.

        We conclude that the Petitioner is not entitled to relief. Although trial counsel
made an oral motion with the trial court to allow the Petitioner to cover his tattoos with
makeup, it was denied. Trial counsel addressed the issue of tattoos during voir dire and
established that the Petitioner was a tattoo artist. On direct appeal, this court found “no
request by the trial court to allow [the Petitioner] to the trial court to allow him to cover
his facial tattoos,” Robert Aaron White, 2013 WL 2432372, at *6, and concluded that the
issue was waived. At the evidentiary hearing, trial counsel agreed that it was error not to
file a formal motion with the trial court on this issue. Significantly, the Petitioner did not
provide any evidence preserving his facial tattoos, i.e. photographs or at the very least a
detailed description, for this court to review.2 The Petitioner makes only a general claim
that his “numerous visible tattoos, including some on his face” had a “potentially
prejudicially effect” on the jury. Because we have no meaningful way of evaluating this
issue, the Petitioner has failed to establish deficient performance. We likewise conclude,
based on the overwhelming evidence of the Petitioner’s guilt, that allowing the Petitioner
to conceal his tattoos would not have changed the outcome of his trial.

      Finally, the Petitioner seeks relief based on the cumulative error doctrine, which
provides, in short, as follows:

       The cumulative error doctrine is a judicial recognition that there may be
       multiple errors committed in trial proceedings, each of which in isolation
       constitutes mere harmless error, but which when aggregated, have a

       2
         Although the trial transcript contains a “mugshot” photograph of the Petitioner, we are
unclear whether he appeared the same way at trial.

                                             - 16 -
      cumulative effect on the proceedings so great as to require reversal in order
      to preserve a defendant’s right to a fair trial.

State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (citations omitted). Therefore, “[t]o
warrant assessment under the cumulative error doctrine, there must have been more than
one actual error committed in the trial proceedings.” Id. Because we found that trial
counsel was not ineffective on any of the grounds raised by the Petitioner, the Petitioner
is not entitled to relief under the cumulative error doctrine.

                                    CONCLUSION

      Based on the above authority and analysis, we affirm the judgment of the post-
conviction court.




                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




                                          - 17 -
