IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 20, 2019

STATE OF TENNESSEE v. TERRY D. WINTERS

Appeal from the Criminal Court for Davidson County

No. 2016-B-714 J. Randall Wyatt, Jr., Judge1

___________________________________

No. M2017-01155-CCA-R3-CD

___________________________________

The defendant, Terry D. Winters, was indicted for and convicted of aggravated 

kidnapping, aggravated assault, and domestic assault for which he received an effective 

twenty-year sentence. He now appeals the denial of his motion for new trial wherein he 

alleged he received ineffective assistance of counsel and challenged a statement made 

during the State’s closing argument. Following our review, we affirm the denial of the 

motion.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and 

ROBERT W. WEDEMEYER, JJ., joined.

Michael L. Freeman, Nashville, Tennessee, for the appellant, Terry Dewayne Winters.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant 

Attorney General; Glenn Funk, District Attorney General; and Amy Hunter and Jeffrey 

Jackson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

I. Trial

 

1

Judge J. Randall Wyatt, Jr. presided over the defendant’s trial and sentencing hearing. 

However, Judge Wyatt retired prior to the hearing on the defendant’s motion for new trial. Judge 

Angelita Blackshear presided over the defendant’s motion for new trial in accordance with Tenn. 

R. Crim. P. 25(b).

09/30/2019
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This case arises from an incident occurring between the defendant and the victim 

at a motel room in Davidson County, Tennessee. For his actions, the defendant was 

charged with aggravated kidnapping, aggravated assault, and domestic assault. Tenn. 

Code Ann. §§ 39-13-102; -111; -304. After initial counsel withdrew and the trial court 

appointed subsequent counsel, the defendant proceeded to trial on March 6, 2017. The 

State presented the following facts for the jury’s review.

Cynthia Johnson, the defendant’s fiancée and victim, testified she had been in an 

“on and off” relationship with the defendant for approximately eight or nine years. In 

2016, the victim had recently been diagnosed with COPD and required oxygen.2 She did 

not live with the defendant but saw him one to three times per week typically at a friend’s 

or his family’s house or a motel. The victim also served as the defendant’s means of 

transportation, as he did not have a car. 

On February 2, 2016, the defendant bought new tires for the victim’s car before 

they rented a motel room. After spending time together in the room, the victim went to 

sleep around 10:00 or 11:00 p.m. while the defendant watched television. Hours later, at 

approximately 2:30 or 3:00 a.m., the defendant tried to wake the victim in order to have 

sex. The victim ignored his advances, but the defendant got “louder and louder.” The 

defendant began to insult the victim so she “jumped up out of the bed and got [her] 

purse” in an effort to leave the room. The defendant “got in front of the door” and told 

the victim she “was going to stay there . . . or take him home.” The victim, however, did 

not want to drive the defendant home because she was upset and “just wanted to go home 

[herself].” As she reached for the doorknob, the defendant began “wrestling” with her. 

The two pushed each other and “ended up on the ground” for approximately two or three 

minutes, three separate times. Each time they fell to the ground, the defendant landed on 

top of the victim and she was unable to move. The defendant would eventually help her 

up, and the victim would try to exit the room which “just started it all over again.”

During the episode, the victim was scared the defendant “wasn’t going to let [her]

out” of the room, so she began “yelling for help,” “banging on walls,” and “screaming 

trying to get out.” At one point, the defendant “put his hand over [the victim’s] nose and 

[] mouth,” causing her to lose her breath. The defendant stated, “I’m going to take you 

out” and that he “didn’t care about [the victim’s] air.” The victim was unable to breathe

and told the defendant she “needed to go outside to get some air.” At trial, the victim 

explained she did not believe the defendant intended to obstruct her airway but admitted 

he did hinder her ability to breathe throughout the struggle, and he knew she suffered 

from a lung condition that caused her to “lose [her] breath real easy.” 

 

2

“COPD” is an abbreviation for chronic obstructive pulmonary disease.
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At the conclusion of the struggle, which lasted approximately one and a half 

hours, the victim was “still screaming.” She reached for the telephone in the room, but 

the defendant blocked her and told her to “[s]it down until I get my clothes on.” The 

victim complied and waited for the defendant to dress as he expected her to drive him 

home. She still did not want to drive the defendant home, explaining “at that point [I] 

didn’t want to be in that predicament again, so . . . when he finally opened the door I 

pushed my alarm on my car, that is the only thing I could think to do.” The victim’s car 

was parked in front of the motel room, and as the alarm went off, she exited the room and 

began “banging on people’s doors and windows.” The defendant followed behind the 

victim, but he did not restrain her. The victim saw a car belonging to her friend, 

Lashanda Bloodworth, and began yelling “Randy,” Ms. Bloodworth’s fiancé’s name. 

Ms. Bloodworth and her fiancé heard the victim and let her in their room where the 

victim called 9-1-1 at approximately 4:00 or 4:30 a.m. The victim was “terrified” and 

“just afraid [the defendant] was going to get in and do more, you know, he was going to 

get, he was going to come get me.” A recording of the 9-1-1 call was played for the jury. 

During the call, the victim stated she feared the defendant was going to smother her to 

death and kill her. At trial, the victim again explained that at the time of the incident she 

was scared and was unsure what the defendant might do to her.

Officer Blake Giles of the Metropolitan Nashville Police Department arrived and 

photographed the victim’s injuries. The next day, the victim went to the hospital, and her

cousin took photographs of additional bruises that “popped up” overnight. The 

photographs depicting the victim’s injuries were entered into evidence and showed 

bruising to her cheek, neck, face, breasts, arms, forearm, right wrist, and underneath her 

arms. One photograph also showed a cut on the victim’s cheek and another showed the 

defendant’s fingerprint under her left ear.

The victim explained she still cared for the defendant and spoke to him on a 

regular basis including the night before trial. In communicating with the defendant prior 

to trial, the victim acknowledged he “sometimes” encouraged her not to cooperate with 

the police or the district attorney’s office. She admitted she did not want to proceed with 

the case against the defendant, noting they “both want him to get out.”

During cross-examination, the victim expressed her belief that she did not think 

the defendant was trying to keep her in the motel room against her will. She stated the 

defendant might have just left the room “if [she] would have just sat down and hushed,” 

but again noted at the time she was “terrified.” The victim also stated the defendant had 

previously been diagnosed with bipolar disorder for which he was on medication and was 

to avoid alcohol. According to the victim, the defendant “was drinking” prior to the 

incident and had not taken his medication. The victim stated, “[w]hen [the defendant] is 

drinking he just goes berserk and he just I don’t think understands what he is doing 
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hisself (sic).” The victim did not believe the defendant kidnapped her on February 2, 

2016. She clarified some of her bruises resulted from the defendant trying to stop her 

from falling3and explained the defendant covered her mouth and nose during the struggle 

to prevent her from screaming. At the conclusion of her testimony, the victim admitted 

she still feared the defendant.

Officer Giles responded to the motel after the victim and an anonymous caller

dialed 9-1-1. He spoke with the victim and arrested the defendant at the scene. Officer 

Giles described the victim as “[v]ery upset, very distraught and emotionally kind of just 

anxious, nervous, scared.” He completed a domestic violence supplemental form which 

included a statement from the victim and documented her physical and emotional

condition. A copy of the form was entered into evidence and detailed injuries to the 

victim’s arms and chest, including bruises, scratches, and cuts. Additional photographs 

of the victim’s injuries were also entered into evidence.

The victim’s friend, Lashanda Bloodworth, testified she and her fiancé were 

staying at the same motel as the victim and the defendant on February 2, 2016. At 

approximately 4:00 a.m., Ms. Bloodworth woke up to a car alarm and the victim banging 

on doors and yelling her name. She assumed the victim saw her car parked in front of the 

motel and called her name as a result. Ms. Bloodworth and her fiancé allowed the victim 

to enter their room where the victim called 9-1-1. Ms. Bloodworth’s fiancé stood outside 

their room until the police arrived. Inside the room, the victim was “upset, crying, [and] 

nervous.” She told Ms. Bloodworth the defendant “had hit her” and the victim “had 

bruising all over her chest area.”

After the State rested its case, the trial court denied the defendant’s motion for 

judgment of acquittal. The defendant waived his right to testify and did not put on any 

additional proof. The jury convicted the defendant as charged on all counts, and the trial

court immediately proceeded with a bifurcated hearing on count 3 in order to determine 

the number of prior domestic assault offenses the defendant had committed. During the 

hearing, the defendant pled guilty to domestic assault, third offense. At a subsequent

sentencing hearing, the trial court imposed concurrent sentences of 20 years for 

aggravated kidnapping, 10 years for aggravated assault, and 90 days for domestic assault, 

third offense.

II. Motion for New Trial Hearing

On June 5, 2017, trial counsel filed a premature notice of appeal which was stayed 

by this Court. By June 16, 2017, new counsel began representing the defendant and a 

 

3The victim made this comment in a notarized statement dated July 28, 2016, after seeing the 

defendant in jail earlier that month.
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timely motion for new trial was filed and later amended.

4

 In the amended motion, the 

defendant alleged numerous reasons as to why he received ineffective assistance of 

counsel at trial, including that trial counsel failed to: prepare him for trial; “put forth any 

defense or attempt to mitigate any evidence brought by the [S]tate;” “properly interview 

any witnesses;” request a bench trial; pursue a “mental health” defense by not 

investigating or “presenting evidence of [the defendant’s] mental deficiencies at trial;” 

“request to have the defendant examined in order to determine if he was mentally able to 

appreciate the nature of the charges against him and whether the defendant was able to 

assist in his defense either at trial or leading up to trial;” “explore other possible 

defenses;” request funds for and obtain expert witnesses; cross-examine Ms. Bloodworth; 

“investigate [the] [d]efendant’s drug and alcohol history;” interview the defendant’s 

brother; “put forth expert testimony as to the [d]efendant’s state of mind when he 

consumed alcohol;” “put forth a defense of intoxication as to the charge of aggravated 

kidnapping;” request a jury instruction “providing that kidnapping is a specific intent 

crime;” “offer any assistance to the [d]efendant at all,” barring two objections.

Separately, the defendant also challenged a statement made during the State’s 

closing argument. According to the defendant, the State mischaracterized Ms. 

Bloodworth’s testimony “when [it] stated to the jury that Ms. Bloodworth testified that 

the victim was ‘terrorized’ by the actions of the defendant.” The defendant asserted the 

mischaracterization inflamed the jury and warranted a new trial because the State 

“overstepped the bounds of what the record reflected was testified to at trial and inserted 

their own opinion of what the testimony might have stated.” 

On February 23, 2018, the trial court conducted a hearing on the defendant’s 

motion for new trial during which both the defendant and trial counsel testified. Based 

upon the substance of the motion, the trial court began the hearing by questioning the 

defendant’s understanding of the effect the motion would have on his ability to present 

future post-conviction claims. The defendant stated he understood his apparent waiver of 

his potential post-conviction claims, noting he filed the motion because trial counsel

failed to do “certain things” on his behalf. Motion for new trial counsel also detailed his 

strategy in focusing primarily on ineffective assistance claims in the motion, stating “I 

think it is obvious, Your Honor, this is my strategy. After reviewing the record in this 

matter this seemed like the most logical way to proceed. There was, there wasn’t a lot in 

the trial itself in the record that presented any other option.” The trial court then 

proceeded with the hearing.

5

 

4The record does not make clear when trial counsel withdrew or when motion for new trial 

counsel began to represent the defendant.

5The defendant also waived his attorney-client privilege with trial counsel.
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The defendant stated trial counsel was appointed to his case a couple of months 

prior to trial. According to the defendant, he spoke with trial counsel once on the 

telephone and met with trial counsel during scheduled court appearances, but they did not 

discuss trial strategies or possible defenses. During the conversations, trial counsel asked 

the defendant about potential witnesses for the defense, and the defendant listed “my 

girlfriend[’s] friend and my girlfriend and the police . . . officer.” However, the 

defendant claimed trial counsel did not do anything concerning the witnesses. The 

defendant also expressed to trial counsel his wish to have a bench trial, but trial counsel 

indicated “the D.A. is not going to give me no bench trial.” The defendant stated he did 

not speak with trial counsel during the breaks throughout trial, indicating neither he nor 

trial counsel made an effort to do so.

Prior to trial, the defendant told trial counsel he suffered from mental health 

issues. The defendant stated he “was going to Mental Health Co-op” and was prescribed

Depakote. Trial counsel, however, did not request copies of the defendant’s mental 

health records or ask how long the defendant suffered from mental health issues. The 

defendant stated he did not disclose his history of drug and alcohol abuse to trial counsel.

During cross-examination, the defendant stated he was represented by the Public 

Defender’s office at his arraignment on May 25, 2016. After being arraigned, the 

defendant asked the trial court “to get [him] another one,” and trial counsel was 

appointed on November 2, 2016. The defendant admitted he met with trial counsel four 

times prior to trial on December 6, 2016, December 7, 2016, December 14, 2016, and 

March 1, 2017, before trial began on March 6, 2017. The defendant testified he told trial 

counsel he was drinking on February 2, 2016, but admitted trial counsel would not have 

known about his mental health issues absent his disclosure of the same. 

Additionally, the defendant acknowledged he met with trial counsel’s investigator, 

Debra Humphrey, “four or five times” while in jail. She provided discovery to the 

defendant, including several witnesses’ recorded interviews and the defendant’s recorded 

telephone calls made while in jail. As such, the defendant admitted he discussed the 

discovery with his defense team. During a meeting with Ms. Humphrey, the defendant 

asked when trial counsel would meet with him “because I am trying to get a bench trial 

going in front of the [j]udge.” Ms. Humphrey, however, told the defendant a bench trial 

was not an option. The defendant also acknowledged he did not know what a bench trial 

entailed, believing it to be associated with sentencing issues rather than guilt or 

innocence. The defendant stated he chose not to testify at trial.

Regarding his convictions, the defendant admitted the victim and Ms. 

Bloodworth’s testimony was hard to overcome but asserted, “I didn’t do no kidnapping. 

[The victim] came and got me.” The defendant explained:
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I had been drinking a few beers and it started off with my brother 

and then, uh, I got some more at the store that I drunk and me and [the 

victim] got to arguing so I told her to take me home, so she told me, no, so I 

told her you came and got me will you please take me home, so I jumped in 

front of her and asked again and I moved out of the way and let her go and 

when we got arguing we got to pushing and shoving. She got to screaming. 

That is when I had put my hand over her mouth to try to keep her from 

screaming because I didn’t want the police to come, then I was on paper so 

I just went on and let her go and she ended up calling the police.

During re-direct examination, the defendant again stated he wanted to have a 

bench trial and admitted he discussed trial strategy with trial counsel “[w]hen he first . . . 

picked the case up.” The defendant acknowledged he met with Ms. Humphrey, but 

explained he did not believe those meetings were as beneficial as meeting with trial 

counsel would have been. The defendant did not remember discussing his decision to 

testify or not testify with trial counsel. 

The defendant also stated he suffered from PTSD but could not explain the events 

leading to his diagnosis. At the time of the incident, he was taking two medications, 

Depakote and another that he could not recall. The defendant told trial counsel about his 

medications, but trial counsel did not ask the defendant what the prescriptions were 

treating. The defendant admitted he did not take his medication on the date of his crimes. 

The defendant again stated he told trial counsel about his mental health issues which trial 

counsel “didn’t do nothing about,” and his issues with drugs and alcohol abuse. 

However, the defendant specified his defense did not rely on his mental health condition.

Rather, his defense was that he did not commit the crimes for which he was charged. 

Though the defendant stated he experienced moments of confusion during the hearing, he 

knew he was seeking a new trial.

Trial counsel testified that he and the defendant “communicat[ed] primarily 

through Ms. Humphrey” while the defendant was in jail. However, during his first 

meeting with the defendant, the defendant made clear what their defense strategy would 

be: that he did not commit a kidnapping and “no jury in their right mind would ever find 

him guilty of kidnapping.” In response to this strategy, trial counsel explained “how 

conservative Tennessee’s kidnapping law was,” but the defendant “just kept repeating . . . 

I didn’t kidnap nobody and nobody is going to find me guilty of kidnapping.” Further, 

the defendant assured trial counsel the victim “[wa]s not coming to court” to testify 

against him. By their second meeting, however, trial counsel had reviewed the victim’s 

preliminary hearing testimony and learned the victim would testify against the defendant

at trial. When trial counsel told the defendant the victim intended to testify against him, 
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the defendant stated the District Attorney’s office intimidated the victim into doing so. 

Regardless, the defendant “was adamant that he had no fear going to trial that everything 

was going to work out in his favor and nobody is going to convict him of kidnapping and 

that [the victim] was going to get up there and say it didn’t really happen this way.” Trial 

counsel disagreed and stated prior to trial he “came as close to begging a client as I ever 

have in my life” for the defendant to take the State’s offer to “plead to aggravated assault, 

dismiss the kidnapping, [and] take six years and a month.” The defendant, however, 

“absolutely would not consider it” as the defendant insisted he did not kidnap the victim. 

As a result, trial counsel prepared for trial, intending to “make the State prove the 

case beyond a reasonable doubt.” Regarding witnesses, trial counsel stated he did not 

have any to mitigate the State’s proof. He recalled one witness he considered calling at 

trial, but ultimately “determined that that individual might be more damaging than 

helpful.” Trial counsel stated Ms. Humphrey interviewed Ms. Bloodworth and learned of 

the substance of her testimony prior to trial. He assumed Ms. Humphrey also interviewed 

Ms. Bloodworth’s fiancé but could not recall, noting “if he would have had anything to 

offer that would have been helpful we would have called him.” Trial counsel stated the 

victim “tried to help [the defendant] out on cross-examination as much as she could” by 

stating “they were pushing each other back and forth and she really felt like the bruises 

that she got on her chest was when he inadvertently fell on top of her, um, that he wasn’t 

try[ing] to hurt her and that she never felt kidnapped.” The jury, however, “just didn’t 

buy it.”

Trial counsel could not recall the victim’s testimony regarding the defendant’s 

intoxication level on the night of the crimes. He was aware kidnapping is a specific 

intent crime but was unaware of intoxication as a complete defense to the same. Rather, 

trial counsel explained, “I read a case that suggested that [intoxication] can mitigate 

intent. It can be used for mitigation purposes at a sentencing hearing, but I don’t recall 

them ever saying that it was an absolute defense to every specific intent crime.”

Trial counsel believed he discussed the defendant’s mental health with him during 

their first meeting during which the defendant stated he “had some involvement with 

Mental Health Co-op right after [he] was stabbed, but [he was] fine now.” Trial counsel 

did not investigate the defendant’s mental health further as he “got the impression from 

the way [the defendant] said, what he said and the way he said it, that he hadn’t had any 

recent mental health interaction with anybody.” Trial counsel could not recall what 

medication, if any, the defendant was taking at the time of the crimes. Trial counsel “had 

a feeling that [the defendant] was probably a heavy drinker” but was unaware of any drug 

abuse.
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When asked about the State’s alleged mischaracterization of Ms. Bloodworth’s 

testimony during closing argument, trial counsel stated he did not recall the same. 

Regardless, trial counsel did not believe the State’s alleged mischaracterization warranted 

an objection, noting:

I personally wouldn’t, I wouldn’t necessarily object if that was the 

only mistake that were made given the level of proof in this case, um, I 

don’t think that “terrorized” instead of “real shaken up” made any impact 

on the jury. The, you know, the general rule is [the jury] heard what was 

said. The [j]udge tells them that statements of counsel is (sic) not evidence. 

It is meant as a guide. If their statements conflict with anything that you 

heard on the stand go with what you heard on the stand, so I rarely object 

during a final argument unless it is something pretty, pretty profound.

Strategically, trial counsel chose not to present a closing argument in order to “cut[] off 

rebuttal by the State.” Trial counsel did not want the defendant’s recorded jail phone 

calls with the victim, wherein he implicitly encouraged her to recant her prior statements, 

to be entered into evidence during trial.

During cross-examination, trial counsel described the defendant as “extremely 

stubborn and head strong but he gave me no indication that he had any mental health 

problems.” Trial counsel was not concerned about the defendant’s mental capacity to 

make decisions, and he believed the defendant understood the State’s offer and why trial 

counsel encouraged him to take the plea deal. Trial counsel noted the defendant faced a 

substantial amount of jail time if convicted based upon the applicable sentencing ranges 

he faced.

Further, regarding strategy, trial counsel attempted to show the defendant did not 

commit a kidnapping because he did not leave the motel room. Trial counsel also stated 

he used the victim as a defense witness despite her being called by the State noting, “I 

believe she put on [the defendant’s] position through her cross-examination.” In 

addition, trial counsel explained the defendant did not indicate he was intoxicated during 

the crimes and never mentioned he suffered from PTSD. Rather, the defendant 

“explain[ed] each movement” he made in the motel room and “went into . . . almost 

blow-by-blow explanations as to what happened and why he did it.”

Trial counsel did not recall if the defendant requested a bench trial, but stated:

I can tell you if had (sic) given the facts that we had in this case I 

would have argued exactly what you just asked him on cross-examination. 

I would have implored him that his luck was a whole lot better with 12 lay 
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people hearing these facts and then being charged with the law as opposed 

to a [j]udge, who at that time the [j]udge had nearly 40 years’ experience on 

the bench and I just felt like a [j]udge, just as soon as the arguments were 

over the verdict would have been instantaneous.

Finally, trial counsel described Ms. Humphrey as “one of the most thorough 

investigators that [he] [has] ever used.” Trial counsel believed she carefully investigated 

the defendant’s case and noted one of Ms. Humphrey’s reports indicated the victim 

mentioned the defendant failed to take his medications on February 2, 2016. Trial 

counsel, however, did not investigate the medications further. 

At the conclusion of the hearing, the trial court took the motion for new trial under 

advisement before ultimately denying it. This timely appeal followed.

Analysis

The defendant appeals the trial court’s denial of his motion for new trial wherein 

he alleged he received ineffective assistance of counsel and challenged the State’s closing 

argument. Based upon the substance of the defendant’s claims against trial counsel, we 

review the trial court’s denial of the motion as we would a post-conviction court’s denial 

of a post-conviction petition. Separately, we address the merits of the defendant’s 

challenge to the State’s closing argument.

I. Ineffective Assistance of Counsel

The defendant generally argues trial counsel failed to investigate and pursue 

factual data to aid in his defense and failed to effectively highlight the mental state of the 

defendant at the time of the crimes. The defendant bears the burden of proving his postconviction factual allegations by clear and convincing evidence. See Tenn. Code Ann. § 

40-30-110(f). The findings of fact established at a post-conviction evidentiary hearing 

are conclusive on appeal unless the evidence preponderates against them. See Tidwell v. 

State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or reevaluate 

evidence of purely factual issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 

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

de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 

1998). The issue of ineffective assistance of counsel presents mixed questions of fact and 

law. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the 

defendant’s post-conviction allegations de novo, affording a presumption of correctness 

only to the trial court’s findings of fact. See id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 

1999).
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To establish a claim of ineffective assistance of counsel, the defendant must show 

both that counsel’s performance was deficient and that counsel’s deficient performance 

prejudiced the outcome of the proceedings. 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 standard for determining ineffective assistance of counsel applied in federal cases is 

also applied 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. In order for a claim of ineffective assistance of counsel to succeed, both 

prongs of the Strickland test must be satisfied. Id. Thus, courts are not required to even 

“address both components of the inquiry if the defendant makes an insufficient showing 

on one.” Id.; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a 

failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on 

the ineffective assistance claim”).

A defendant proves a deficiency by showing “counsel’s acts or omissions were so 

serious as to fall below an objective standard of reasonableness under prevailing 

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; 

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the 

Strickland test is satisfied when the defendant shows there is a reasonable probability, or 

“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making 

the evaluation, a court must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 

101 (1955)).

Furthermore, when a defendant contends trial counsel failed to discover, 

interview, or present witnesses in support of his defense, the defendant must call those 

witnesses to testify at an evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. 

Crim. App. 1990). This is the only way the defendant can establish that:
- 12 -

(a) a material witness existed and the witness could have been 

discovered but for counsel’s neglect in his investigation of the case, (b) a 

known witness was not interviewed, (c) the failure to discover or interview 

a witness inured to his prejudice, or (d) the failure to have a known witness 

present or call the witness to the stand resulted in the denial of critical 

evidence which inured to the prejudice of [defendant].

Id. Even if a defendant is able to show counsel was deficient in the investigation of the 

facts or the calling of a known witness, the defendant is not entitled to relief unless he 

produces a material witness at his evidentiary hearing who “could have been found by a 

reasonable investigation” and “would have testified favorably in support of his defense if 

called.” Id. at 758. Without doing this, the defendant cannot establish the prejudice 

requirement of the two-prong Strickland test. Id. 

Here, the defendant claims trial counsel did not adequately investigate or defend 

his case for a myriad of reasons, none of which were supported by proof at the hearing. 

The defendant initially asserts trial counsel did not effectively challenge witness 

testimony regarding the time of the events in question. The defendant suggests trial 

counsel should have presented “the dispatch call logs from the police department” and

“the motel records” in order to “narrow[] the time that the victim testified she was held 

inside the motel room.” However, the defendant failed to present the proposed evidence 

to support this claim at the hearing and failed to offer any additional proof in this regard. 

Accordingly, he is not entitled to relief as to this issue. Strickland, 466 U.S. at 687.

The defendant next suggests trial counsel was ineffective for failing to investigate 

any witnesses and for failing to interview Ms. Bloodworth’s fiancé or the defendant’s 

family, including his brother. At the hearing, trial counsel testified he used Ms. 

Humphrey, “one of the most thorough investigators that [he] [has] ever used,” to 

investigate the defendant’s case and aid the defense team. The trial court determined trial 

counsel “was aware of the time necessary to prepare this case and utilized resources to 

interview witnesses in preparation for the trial.” We agree. This Court will not reweigh 

the credibility determinations of the trial court, nor will it second guess the tactical and 

strategic decisions of trial counsel made after adequate trial preparation. Henley v. State, 

960 S.W.2d 572, 579 (Tenn. 1997). Further, the defendant failed to call Ms. 

Bloodworth’s fiancé, his brother, or any other family members to testify on his behalf at 

the hearing. As such, the defendant cannot show he was prejudiced by trial counsel’s

alleged failure to interview or call Ms. Bloodworth’s fiancé or members of his family to 

testify at trial. The defendant is not entitled to relief as to this issue. Black, 794 S.W.2d 

at 758. 
- 13 -

The defendant also argues trial counsel failed to challenge the victim’s mental 

state at the time of the crimes to demonstrate the defendant was not guilty of aggravated 

kidnapping. Specifically, the defendant alleges trial counsel failed to elicit testimony 

from the victim that “she was afraid due to the circumstances at the exact moment of the 

inciden[t] but not so afraid that she didn’t view [the defendant] as a source of terror.” 

Further, the defendant asserts trial counsel failed to adequately highlight the victim’s 

statement, that portions of her injuries might have resulted from the defendant attempting 

to prevent her from falling rather than from the defendant unlawfully detaining her, to 

support a conviction of false imprisonment rather than aggravated kidnapping. We 

disagree. At the hearing, trial counsel explained he utilized the victim as a defense 

witness and believed she “put on [the defendant’s] position through her crossexamination.” Nothing in the record suggests trial counsel’s strategy regarding the 

handling of the victim at trial was deficient, and the defendant cannot show prejudice as a 

result. Again, this Court will not second guess the tactical and strategic decisions of trial 

counsel made after adequate trial preparation. Henley, 960 S.W.2d at 579. 

Similarly, the defendant asserts trial counsel was ineffective for failing to argue

the defendant’s actions were meant only “to calm [the victim] down,” not to injure the 

victim. However, as noted above, trial counsel highlighted the defendant’s position while 

cross-examining the victim at trial. In doing so, the victim testified she did not think the 

defendant was trying to kidnap her or obstruct her airway on the night in question and 

further stated she believed some of her injuries occurred when the defendant tried to stop 

her from falling. The record indicates trial counsel effectively cross-examined the victim 

during which she corroborated the defendant’s position, and he cannot show prejudice as 

a result. Id. The defendant is not entitled to relief.

The defendant also argues trial counsel was ineffective for failing to pursue a 

defense of voluntary intoxication or to request a jury instruction “providing that 

kidnapping is a specific intent crime” after the victim alleged the defendant had been 

drinking prior to the incident. The trial court found:

While there was testimony that the [d]efendant had a history of drug 

or alcohol abuse, there was no testimony at this hearing that information 

was conveyed to [trial counsel] that the [d]efendant was under the influence 

of a drug or intoxicant at the time of the offense. There was testimony at 

trial that the [d]efendant consumed alcohol prior to the events involving the 

victim. However, there was no testimony regarding the [d]efendant’s level 

of intoxication.

Rather, at the hearing, trial counsel testified the defendant did not suggest he was 

intoxicated during the crimes and instead, the defendant provided a near “blow by blow” 
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description of his actions in the motel room. The defendant cannot show he was 

prejudiced by trial counsel’s failure to pursue a defense of intoxication as nothing in the 

record suggests it was warranted at trial. See Strickland, 466 U.S. at 689; Goad 938 

S.W.2d at 369. The defendant is not entitled to relief.

Regarding the jury instruction on intoxication, the trial court held:

In this case, the evidence was that defendant consumed alcohol with 

his brother. There was no evidence regarding the level of intoxication that 

would have warranted a request for a jury instruction on intoxication. The 

[c]ourt is of the opinion that [trial counsel] had no basis to request a jury 

instruction on intoxication. Therefore, the [c]ourt does not find that [trial 

counsel] was ineffective as it relates to this issue. 

Again, we agree. The defendant has failed to provide evidence to support his argument,

and he is not entitled to relief as a result. Id.

Similarly, the defendant asserts trial counsel was ineffective for failing to 

investigate the defendant’s mental health at the time of the crimes as they “were relevant 

and should have been investigated to insure (sic) that [the defendant] could have formed 

the requisite intent to even commit the crimes alleged.” The trial court determined trial 

counsel properly investigated the defendant’s mental health, noting trial counsel “was of 

the belief that, at the time of trial, the [d]efendant was not suffering from any mental 

health deficiencies.” At the hearing, trial counsel explained though he learned the 

defendant had visited the Mental Health Co-op in the past, he did not believe the 

defendant was suffering from any mental health issues prior to trial. Trial counsel 

believed the defendant understood the charges he faced and the plea deal offered, but the 

defendant simply insisted on going to trial. The defendant has failed to provide any 

evidence to demonstrate he was suffering from mental health issues, either at the time of 

the crimes or trial, and he is not entitled to relief. Id.

II. Closing Argument

The defendant argues the State made an improper closing argument by allegedly 

mischaracterizing Ms. Bloodworth’s testimony. We review this claim under the plain 

error doctrine as the defendant failed to object to the same at trial. It is well established 

that “when necessary to do substantial justice,” this Court may “consider an error that has 

affected the substantial rights of a party” under plain error analysis. Tenn. R. App. P. 36 

(b); see also State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). Plain error relief is 

“limited to errors that had an unfair prejudicial impact which undermined the 
- 15 -

fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. 

App. 1994). The following five factors must be met for plain error relief to be granted: 

(1) the record must clearly establish what occurred in the trial court; (2) a clear and 

unequivocal rule of law must have been breached; (3) a substantial right of the accused 

must have been adversely affected; (4) the accused did not waive the issue for tactical 

reasons; and (5) consideration of the error is “necessary to do substantial justice.” Id. at 

640-41; see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (Tennessee 

Supreme Court formally adopted the Adkisson standard for plain error relief). When it is 

clear from the record that at least one of the factors cannot be established, this Court need 

not consider the remaining factors. Smith, 24 S.W.3d at 283. The defendant bears the 

burden of persuasion to show that he is entitled to plain error relief. State v. Bledsoe, 226 

S.W.3d 349, 355 (Tenn. 2007).

Here, the defendant cannot meet the minimum requirements to warrant plain error 

review. The defendant asserts the State mischaracterized Ms. Bloodworth’s testimony by 

stating “that Ms. Bloodworth testified that the victim was ‘terrorized’ by the actions of 

the defendant.” Our review of the record, however, reveals the State described Ms. 

Bloodworth’s testimony, as follows: “You heard from Ms. Bloodworth this morning who 

saw [the victim] moments after, she said she was terrified. She noticed the marks on her 

body and on her chest, the signs of bodily injury.” Accordingly, we find the defendant’s 

argument misplaced as the State did not use the term “terrorized” in its closing argument

and as a result, the record does not clearly establish what occurred in the trial court as 

alleged by the defendant and required for plain error review. Id. at 282-83. The

defendant is not entitled to relief.

Further, we note, the State properly summarized Ms. Bloodworth’s testimony by 

characterizing the victim as “terrified” upon entering Ms. Bloodworth’s motel room. Ms. 

Bloodworth testified she and her fiancé woke up to a car alarm sounding and the victim 

screaming their names as the victim sought refuge from the defendant. The victim was

“upset, crying, [and] nervous” with “bruising all over her chest area” as she entered Ms. 

Bloodworth’s motel room. When asked if the victim seemed scared, Ms. Bloodworth 

stated, “Yes. Nervous.” Therefore, the State’s use of the term “terrified” in summarizing 

Ms. Bloodworth’s description of the victim is supported by ample evidence in the record. 

Again, not only is the defendant’s argument misplaced, as our review of the record does 

not reveal any mischaracterization by the State, but also he cannot establish plain error 

review is warranted as nothing in the record suggests a clear and unequivocal rule of law 

was breached, a substantial right of the accused was adversely affected, or consideration 

of the issue is necessary to do substantial justice. Id. The defendant is not entitled to 

relief.

Conclusion
- 16 -

Based upon the foregoing authorities and reasoning, we affirm the judgments of 

the trial court. 

____________________________________

 J. ROSS DYER, JUDGE