IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 3, 2018

JERRY EDWARD LANIER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Dyer County

No. 11-CR-443 R. Lee Moore, Jr., Judge

___________________________________

No. W2017-00920-CCA-R3-PC

___________________________________

The petitioner, Jerry Edward Lanier, appeals the denial of his post-conviction petition 

arguing he received ineffective assistance of counsel at trial. Following our review, we 

affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and 

ROBERT L. HOLLOWAY, JR., JJ., joined.

Noel H. Riley, Jr., Dyersburg, Tennessee, for the appellant, Jerry Edward Lanier.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Danny Goodman, Jr., District Attorney General; and Karen Burns,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

A Dyer County jury convicted the petitioner of two counts of selling more than 0.5 

grams of cocaine in a drug-free zone for which he received an effective thirty-year 

sentence. This Court affirmed the petitioner’s convictions on direct appeal, and our 

Supreme Court denied his application for permission to appeal. State v. Jerry Edward 

Lanier, No. W2014-01840-CCA-R3-CD, 2015 WL 3397627, at *1 (Tenn. Crim. App. 

May 27, 2015), perm. app. denied (Tenn. Sept. 21, 2015). On direct appeal, this Court 

recited the following underlying facts and procedural history:

This case arises from two drug transactions that occurred within one 

thousand feet of Scott Street Park in Dyer County, Tennessee, between the 

05/10/2018
- 2 -

[petitioner] and a confidential informant working with the police. A Dyer 

County grand jury indicted the [petitioner] for two counts of sale of a 

Schedule II drug in a drug-free zone. At the [petitioner]’s trial on these 

charges, the parties presented the following evidence: Mike Leggett, a 

Dyersburg Police Department officer, testified that he was involved in a 

controlled buy on July 1, 2011, in Dyersburg. Sergeant Leggett stated that 

the drug buy occurred at a residence located on Scott Street, which is 

located near Scott Street Park.

Sergeant Leggett testified that, due to the “relatively small”

population of Dyersburg, the narcotics unit often used confidential 

informants because police officers are easily recognized. He confirmed that 

a confidential informant was used in this controlled buy. Sergeant Leggett 

said that the Confidential Informant (“CI”) and the CI’s vehicle were 

searched prior to the buy. An electronic transmitter used to monitor the buy 

in real time as well as record the transaction was placed on the CI’s body,

and the CI was provided $50 for the drug purchase. The serial numbers 

from the bills given to the CI had been recorded by the police. Sergeant 

Leggett recalled that when he first met with the CI on July 1, 2011, he 

asked the CI, “Who can you buy from?” Using a number in his cell phone,

the CI made contact with the [petitioner] and arranged to meet at the CI’s 

residence.

Sergeant Leggett testified that police officers monitored the CI’s 

exchange with the [petitioner] from “around the corner by the park,”

because the CI had informed the officers that the [petitioner] was “very 

suspicious and aware of his surroundings.” Following the exchange, the CI 

and the police officers met at a predetermined location where the cocaine 

was collected and the CI and his vehicle were again searched.

On cross-examination, Sergeant Leggett explained that he did not 

determine the location of the buy. The location was selected during the 

phone conversation between the CI and the [petitioner]. Sergeant Leggett 

stated, “That’s where [the CI] was instructed to meet.”

Chris Clements, a Dyersburg Police Department officer, testified 

that he worked with Sergeant Leggett on the July 1, 2011, controlled drug 

buy. He stated that he searched the CI’s person, clothing, and vehicle to 

ensure that the CI did not have any contraband before the drug buy 

commenced. Sergeant Clements recalled that the buy occurred on Scott 

Street near a public park, Scott Street Park. After the transaction, the 
- 3 -

officers again met with the CI. Sergeant Leggett collected the drugs, and 

Sergeant Clements searched the CI and his vehicle, finding no evidence of 

contraband.

Sergeant Clements testified that he worked with the same CI on a 

drug buy from the [petitioner] on July 5, 2011. Sergeant Clements 

followed the same procedure as used for the July 1, 2011 controlled buy. 

He recalled that the CI called the [petitioner] and the two arranged to meet 

at the Scott Street residence. Immediately after the transaction, Sergeant 

Clements met with the CI and collected the purchased cocaine.

On cross-examination, Sergeant Clements testified that the CI was 

instructed to remain in his vehicle and not enter the residence during the 

transactions. Sergeant Clements agreed that, during the July 1, 2011,

transaction, the CI did get out of his vehicle and sit on the front porch of the 

Scott Street residence for approximately seven minutes. He stated that the 

CI asked the police officers for permission before doing so.

Mason McDowell, a Dyersburg Police Department officer, testified 

that he worked with Sergeant Clements during the July 5, 2011, controlled 

drug buy involving the [petitioner]. Officer McDowell recalled that, before 

the controlled buy, Sergeant Clements searched the CI while he oversaw 

the technical equipment used to monitor and record the transaction. Officer 

McDowell also provided the CI with $50 of recorded money for the 

purchase. He stated that the CI advised the officers that he could purchase 

drugs from someone the CI referred to as “Slim.” Officer McDowell knew 

“Slim” to be the [petitioner], and the CI confirmed with Officer McDowell 

that the person he referred to as “Slim” was the [petitioner].

The State played the video recording of the July 5, 2011 transaction,

and Officer McDowell identified the CI’s residence on Scott Street where 

the transaction occurred and the [petitioner]’s vehicle, a Ford Thunderbird,

arriving in the driveway. Officer McDowell identified the [petitioner] as 

the person operating the Thunderbird. He also identified a white baggie 

being exchanged between the CI and the [petitioner] as consistent with the 

package the CI returned to the officers immediately following the 

transaction. Officer McDowell testified that U.S. currency appeared to be 

transferred between the men.

Officer McDowell testified that, directly after the drug buy, he met 

with the CI again and collected the crack cocaine that the CI had purchased 
- 4 -

from the [petitioner] while Sergeant Clements conducted a search of the CI 

and the CI’s vehicle.

On cross-examination Officer McDowell testified that the recorded 

money used during the transaction was never recovered. Officer McDowell 

said that, although the money was never recovered, he did provide the CI 

with $50, the video depicts the CI giving the [petitioner] cash, and the CI 

did not return with any money.

Carmen Cupples, Information Technology and Geographic 

Information System manager for the City of Dyersburg, identified a map 

her office had generated showing the distance in feet between the Scott 

Street residence and Scott Street Park. Ms. Cupples noted that the distance 

between the Scott Street residence and Scott Street Park was 165 feet. She 

said the distance was accurate within two to three feet.

On cross-examination, Ms. Cupples agreed that the measurement 

was not to the entrance of the park. Ms. Cupples stated that she did not 

have any information showing that the Scott Street Park “was actually 

adopted as a park” by the City of Dyersburg. She stated, however, that the 

software used to generate the map indicated that the property was owned by 

the City of Dyersburg.

The CI testified that he worked as a confidential informant for the 

Dyersburg Police Department from June 2011 to October 2011. He 

admitted that he had prior criminal convictions, and the most recent 

conviction occurred in 1999. The CI agreed that he met with police officers 

before each of the controlled buys from the [petitioner] on July 1 and July 

5, 2011. The CI stated that the police officers provided him with money for 

the purchases and fitted him with audio and video transmitters to monitor 

and record the buys. He confirmed that he bought the cocaine from the 

same person, the [petitioner], on both occasions.

The CI testified that he had known the [petitioner] “all [his] life” and 

knew both his nickname, “Slim,” and his legal name. The CI stated that he 

called the [petitioner] on July 1, 2011, and inquired whether the [petitioner]

was selling powder cocaine. He explained to the [petitioner] that he 

intended to resell the cocaine to another buyer in an attempt to appear 

“more believable.” The [petitioner] agreed to sell the CI one gram of 

cocaine for $50. The [petitioner] arrived at the CI’s residence on Scott 

Street driving a Thunderbird. The CI said the transaction was quick,
- 5 -

approximately thirty seconds, in order to avoid detection. The CI stated 

that he gave the [petitioner] the $50 buy money that the police officers had 

given him in exchange for cocaine.

The State played the video recording of the transaction and the CI 

narrated as the events occurred. The CI described the transaction as a 

“typical” drug deal. The CI stated that, following the transaction, he drove 

directly to where he was to meet with the officers. Once there, he handed 

over the cocaine to the officers.

The CI testified that he purchased cocaine from the [petitioner] again 

on July 5, 2011, as part of a controlled buy. He stated that the procedures 

for preparing him for the buy were consistent with the procedures used on 

July 1. The CI said that he once again called the [petitioner] and asked to 

buy one gram of cocaine. The [petitioner] confirmed that he had cocaine 

and agreed to sell one gram to the CI. When asked how the CI knew where 

to meet the [petitioner] for the buy, the CI responded, “it’s the same spot 

we usually meet at. I always meet in the same spot.” The CI said that he 

waited almost an hour for the [petitioner] to arrive. He recalled that the 

[petitioner] was circling the area trying to spot any police officers before 

conducting the sale. This time the [petitioner]’s girlfriend was with the 

[petitioner] although she did not participate in the buy. The CI recalled that 

he handed the [petitioner] the $50 provided to him by the police, and the 

[petitioner] gave the CI cocaine. The CI stated that he gave Officer 

McDowell the cocaine that the [petitioner] had given him in exchange for 

the $50.

On cross-examination, the CI agreed that he had asked the 

[petitioner] for powder cocaine for the July 1, 2011 transaction but that the 

[petitioner] brought him crack cocaine. The CI said that he did not “check”

to see if he received what he had requested, he merely turned it over to the 

officers.

Brock Sain, a Tennessee Bureau of Investigation (“TBI”) forensic 

scientist, testified as an expert in the field of drug identification. Special 

Agent Sain stated that he analyzed the substance submitted from the July 1,

2011 controlled buy and concluded that the substance was 1.06 grams of 

crack cocaine.

Shalandus Garrett, a TBI forensic scientist, testified as an expert in 

the field of drug identification. Special Agent Garrett stated that she 
- 6 -

analyzed the substance submitted from the July 5, 2011 controlled buy and 

the substance tested positive for cocaine and weighed .66 of a gram. She 

stated that both cocaine and crack cocaine are Schedule II controlled 

substances.

Based upon this evidence, the jury convicted the [petitioner] of two 

counts of sale of over .5 gram of a Schedule II controlled substance within 

a thousand feet of a public park.

Jerry Edward Lanier, 2015 WL 3397627, at *1-4.

The petitioner filed a pro se petition for post-conviction relief on September 22,

2016, alleging trial counsel’s representation was constitutionally ineffective. The 

petitioner argued trial counsel failed to object to prosecutorial misconduct, failed to file 

appropriate pretrial motions, failed to communicate plea offers and advise the petitioner

of the consequences of pleading guilty or going to trial, and failed to interview relevant 

witnesses. The post-conviction court appointed counsel on September 27, 2016, and held 

an evidentiary hearing on February 14, 2017.

During the post-conviction hearing, the petitioner outlined three instances of

prosecutorial misconduct counsel should have objected to at trial. First, the petitioner 

explained, the State referred to the CI by the last name “Schaeffer” instead of his actual 

last name, “Roberts.” The petitioner argued using this name constituted prosecutorial 

misconduct because “Schaeffer” was the last name of the CI’s grandfather, a well-known 

constable in the area. Therefore, the State improperly intonated the CI was as credible as 

his well-liked grandfather. Second, the petitioner claimed the State improperly asked the 

CI leading questions during direct examination. Finally, the petitioner challenged the 

State’s closing arguments wherein the State claimed the petitioner was “caught redhanded,” despite the video failing to show an exchange of drugs. The petitioner stated 

trial counsel was ineffective for not objecting to each alleged infraction. 

The petitioner then enumerated the pretrial motions he instructed trial counsel to 

file. The petitioner explained trial counsel should have moved to exclude: the video,

because it had been doctored; the audio recordings of phone calls, because neither voice 

on the call was the petitioner’s; and the money used in the controlled buy, because “there 

was no chain of custody.” Additionally, the petitioner asserted trial counsel should have 

challenged the introduction of the drugs because he was arrested for the sale of powdered 

cocaine, but the State introduced crack cocaine at trial.

The petitioner also alleged trial counsel was deficient for failing to interview and 

call several witnesses who would have supported the petitioner’s theory that the video 
- 7 -

evidence had been doctored. The petitioner based his theory on the fact that his vehicle 

was present in the video despite it having been impounded at the time. These witnesses

included Mr. Taylor, a neighbor of the CI, and “Michelle” from Johnson Motors, an auto 

dealership, both of whom could have identified the petitioner’s vehicle. Additionally, the 

petitioner argued trial counsel should have subpoenaed Tennessee Department of 

Transportation records that indicated his car had been seized. The petitioner further 

claimed trial counsel should have interviewed members of the Drug Task Force and the 

CI who, the petitioner believed, fabricated evidence. The petitioner did not call these 

witnesses to testify at the post-conviction hearing.

Additionally, the petitioner noted trial counsel failed to strike a juror he believed 

was biased, though the petitioner admitted he did not include this in his petition for postconviction relief. Finally, the petitioner conceded trial counsel conveyed all of the plea 

deals offered by the State.

Trial counsel then testified regarding his representation of the petitioner. Trial 

counsel stated he has practiced criminal law for over twenty-one years participating in 

several drug trials. Over the course of trial counsel’s representation of the petitioner, they

met about ten times. During the first meeting, they watched the video depicting the drug 

sale. The petitioner claimed he was not the individual shown in the video; however, trial 

counsel stated he did not “think any other human being on the planet other than [the 

petitioner] would ever believe that when they looked at the video.” 

Trial counsel testified he communicated every plea offer made by the State, 

informed the petitioner the State was seeking to enhance his sentence, and advised the 

petitioner that his best chance to minimize jail time was to accept the State’s plea offer. 

However, the petitioner maintained his innocence and refused to consider any plea offers. 

During one particularly “contentious” meeting, trial counsel presented the petitioner with 

paper copies of the plea agreement and a written explanation of possible trial outcomes.

According to trial counsel, the petitioner crumpled the papers and refused to discuss

anything more with him. The next day, September 30, 2013, trial counsel mailed the

petitioner a letter outlining his frustration with the petitioner’s intransigence and attached 

additional copies of both aforementioned documents. The State introduced the letter into 

evidence during the post-conviction hearing. Trial counsel filed a motion to withdraw,

but it was denied by the trial court.

Trial counsel testified the petitioner did not disclose the names of the neighbors or 

individuals at the auto dealership he wanted to call as witnesses at trial, because the 
- 8 -

petitioner did not want to be a “snitch.”

1

 When asked about the alleged discrepancy 

between whether the petitioner sold powered cocaine or crack cocaine, trial counsel 

recalled that one of the police records appeared to mistakenly indicate the substance 

recovered from the CI was powdered cocaine. Trial counsel, however, elaborated that 

there was no discrepancy in the CI’s testimony at trial concerning what substance was 

delivered.

Trial counsel’s trial strategy was limited to impeaching the CI and highlighting the 

length of time the CI was alone in front of his apartment, implying the CI could have 

retrieved the drugs in question from his own house. Trial counsel noted the petitioner did 

provide useful information about the CI’s prior criminal drug history, which he 

researched and incorporated into his trial strategy. He conceded the jury “obviously” did 

not find his impeachment sufficient to create reasonable doubt as to the petitioner’s 

involvement in the crimes. 

Finally, trial counsel stated he did not believe the State committed prosecutorial 

misconduct noting, if it had, he would have immediately objected. Trial counsel also 

noted that he represented the petitioner during the motion for a new trial and on direct

appeal. 

In addition to finding “no proof of prosecutorial misconduct,” the post-conviction 

court also stated:

It’s clear that [the petitioner] was advised on more than one occasion 

in person and in writing of the danger of proceeding with trial and [the]

exposure that he faced. It appears to the [c]ourt . . . [the petitioner] simply 

shut things down. [The petitioner] didn’t do anything to help [himself]. 

That’s been actually the procedure that [he has] [followed] throughout 

[these] proceedings. I think under the circumstances under the facts of the 

case that we have, [trial counsel] did everything he could to defend [him]. 

[The petitioner] did nothing to try to help [trial counsel] defend [him]. It 

may have been an impossible task with the information that they had on the 

video and the audios. The [c]ourt does not feel that there’s any defective 

performance by counsel and that there is no evidence of any prejudice even 

if there was. So [the petitioner’s] motion is denied. [The petitioner’s]

petition is denied.

 

1

Trial counsel further elaborated that the petitioner appeared to be operating under the belief that 

the district attorney and trial counsel were in collusion. Trial counsel testified he attempted to disabuse 

petitioner of this impression both orally and in the September 30th letter.
- 9 -

This timely appeal followed.

Analysis

On appeal, the petitioner challenges trial counsel’s representation on two grounds. 

First, the petitioner argues trial counsel did not adequately prepare for trial because he did 

not investigate potential witnesses in support of his defense. Secondly, the petitioner 

asserts trial counsel failed to object to prosecutorial misconduct throughout the trial. The 

State argues trial counsel prepared as well as possible given the petitioner’s 

intransigence, and contends the State did not engage in prosecutorial misconduct. Based 

on our review of the record and relevant authorities, we agree with the State. 

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that 

his or her “conviction or sentence is void or voidable because of the abridgement of any 

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden 

of proving his factual allegations by clear and convincing evidence. See Tenn. Code 

Ann. § 40-30-110(f). “‘Evidence is clear and convincing when there is no serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.’” 

Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 

S.W.3d 208, 216 (Tenn. 2009)). 

Appellate courts do not reassess the trial court’s determination of the credibility of 

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State,

245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter 

entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. 

Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the 

post-conviction setting, the findings of fact made by the court are conclusive on appeal 

unless the evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 

(Tenn. 1996). Where appellate review involves purely factual issues, the appellate court 

should not reweigh or reevaluate the evidence. Henley v. State, 960 S.W.2d 572, 578 

(Tenn. 1997). However, review of a trial court’s application of the law to the facts of the 

case is de novo, with a presumption of correctness given only to the post-conviction 

court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. 

State, 6 S.W.3d 453, 461 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998).

The Sixth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment, and article I, section 9 of the Tennessee 

Constitution require that a criminal defendant receive effective assistance of counsel. 

Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted). 

When a petitioner claims he received ineffective assistance of counsel, he has the burden 
- 10 -

to show both that trial counsel’s performance was deficient and that counsel’s deficient 

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 

U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) 

(noting that the same standard for determining ineffective assistance of counsel applied in 

federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed the defendant by 

the Sixth Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s 

acts or omissions were so serious as to fall 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 v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). 

With regard to the standard, our Supreme Court has held:

[T]he assistance of counsel required under the Sixth Amendment is 

counsel reasonably likely to render and rendering reasonably effective 

assistance. It is a violation of this standard for defense counsel to deprive a 

criminal defendant of a substantial defense by his own ineffectiveness or 

incompetence . . . . Defense counsel must perform at least as well as a 

lawyer with ordinary training and skill in the criminal law and must 

conscientiously protect his client’s interest, undeflected by conflicting 

considerations.

Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at 

934-35). When reviewing trial counsel’s performance, this Court “must make every 

effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that 

time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 

689). 

To satisfy the prejudice prong of the test, the petitioner “must establish a 

reasonable probability that but for counsel’s errors the result of the proceeding would 

have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing 
- 11 -

Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to 

undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). In 

order to prevail, the deficient performance must have been of such magnitude that the 

petitioner was deprived of a fair trial and that the reliability of the outcome was called 

into question. Finch, 226 S.W.3d at 316.

Courts need not approach the Strickland test in a specific order or even “address 

both components of the inquiry if the defendant makes an insufficient showing on one.” 

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either 

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim”). Additionally, the petitioner must provide any witnesses that would 

have likely affected the outcome of the trial. Taylor v. State, 443 S.W.3d 80, 84-85 

(Tenn. 2014). “[I]t is axiomatic that ‘[w]hen a petitioner contends that trial counsel failed 

to discover, interview, or present witnesses in support of his defense, these witnesses 

should be presented by the petitioner at the evidentiary hearing.’” Taylor, 443 S.W.3d at

84-85; see also Cauthern, 145 S.W.3d at 616.

Here, the petitioner alleges trial counsel failed to call several witnesses at trial to 

aid in his defense. Specifically the petitioner claims trial counsel should have called the 

CI’s neighbor, an individual from an auto dealership, officers on the Drug Task force, 

and should have subpoenaed certain records from the Tennessee Department of 

Transportation. However, the petitioner failed to present any of these witnesses or the 

records during the post-conviction hearing. Taylor, 443 S.W.3d at 84-85. Additionally, 

trial counsel’s testimony regarding petitioner’s refusal to be a “snitch” and counsel’s 

letter to the petitioner both support the post-conviction court’s conclusion that the 

petitioner refused to disclose these witnesses and he “simply shut things down.” Despite 

not explicitly doing so, the post-conviction court accredited trial counsel’s testimony 

indicating the petitioner stood in the way of his own defense. See Donald L. Seiber v. 

State, No. E2010-00285-CCA-R3-PC, 2011 WL 1484173, at *5 (Tenn. Crim. App. Apr. 

19, 2011) (determining that, despite not explicitly accrediting trial counsel’s testimony, it 

was “implicit” in the post-conviction court’s finding they had done so). Therefore, 

petitioner has failed to meet his burden of proof as it relates to trial counsel’s alleged 

failure to call witnesses at trial, and the record supports the post-conviction court’s 

determination that trial counsel provided effective representation. Taylor, 443 S.W.3d at 

84-85. The petitioner is not entitled to relief on this issue.

The petitioner next argues trial counsel failed to object to prosecutorial 

misconduct throughout the trial. Specifically, the petitioner highlights the State referring
- 12 -

to the CI by his grandfather’s last name in order to bolster the CI’s credibility.

2

 We 

disagree that this action constituted prosecutorial misconduct. First, the petitioner 

produced no evidence the State’s actions were improperly motivated. Second, even if the 

State’s use of the CI’s grandfather’s last name somehow bolstered the CI’s credibility, 

trial counsel introduced evidence of the CI’s prior criminal convictions, in accordance 

with the petitioner’s instructions. See Jerry Edward Lanier, 2015 WL 3397627, at *6 

(“The [petitioner] thoroughly cross-examined the CI at trial and the jury heard about the 

CI’s criminal history . . . . The jury . . . found the CI’s account of the transactions more 

credible than the [petitioner’s] theory of the case.”). Trial counsel additionally stated, in 

his professional experience, nothing in the State’s case constituted prosecutorial 

misconduct. Absent testimony from trial counsel or evidence indicating his decision was 

not tactical, “we cannot determine that trial counsel provided anything other than 

effective assistance of counsel.” Gregory Robinson v. State, No. W2011-00967-CCAR3-PD, 2013 WL 1149761, at *79 (Tenn. Crim. App. Mar. 20, 2013) quoting (State v. 

Leroy Sexton, No. M2004-03076-CCA-R3-CD, 2007 WL 92352, at *5 (Tenn. Crim. App. 

Jan.12, 2007), perm. app. denied (Tenn. May 14, 2007)). Moreover, the post-conviction

court found “no proof of prosecutorial misconduct during the trial.” Based on our review 

of the record, the petitioner failed to provide evidence that would preponderate against 

the post-conviction court’s determination. 

Furthermore, in light of the overwhelming evidence presented at trial, there is 

nothing to support the inference that, had trial counsel objected, it would have affected

the trial’s outcome. See Curtis Cecil Wayne Bolton v. State, No. E2014-00559-CCA-R3-

PC, 2015 WL 4557754, at *18 (Tenn. Crim. App. July 29, 2015) (determining, as the 

petitioner failed to establish any prejudice from trial counsel’s failure to object to closing 

statements, he was not entitled to post-conviction relief). The State provided video 

evidence and testimony from the CI that the petitioner engaged in the sale of crack 

cocaine. As the petitioner has failed to provide evidence establishing prejudice or 

deficient representation, he is not entitled to relief.

 

2 We note the petitioner only raises this single incident in his briefing despite testifying to other 

alleged instances of misconduct at the post-conviction hearing. Therefore, we only address trial counsel’s 

failure to object to the State using a different last name for the CI and deem the other grounds waived.
- 13 -

Conclusion

Based upon the foregoing authorities and reasoning, the judgment of the postconviction court is affirmed.

____________________________________

J. ROSS DYER, JUDGE