IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 5, 2020

DAVID VON BROWN v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-19-176 Roy B. Morgan, Jr., Judge

No. W2019-02181-CCA-R3-PC

The Petitioner, David Von Brown, appeals from the Madison County Circuit Court’s 

denial of his petition for post-conviction relief from his convictions for possession of 0.5 

gram or more of cocaine with intent to sell, possession of 0.5 gram or more of cocaine 

with intent to deliver, two counts of possession of a firearm during the commission of a 

dangerous felony, two counts of possession of a firearm during the commission of a 

dangerous felony by a person having a prior felony conviction, and being a felon in 

possession of a firearm, and the effective seventeen-year sentence.1 On appeal, the

Petitioner contends that the post-conviction court erred in denying relief on his 

ineffective assistance of counsel claims. We affirm the judgment of the post-conviction 

court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and J. ROSS DYER, JJ., joined.

Vicki M. Carriker, Memphis, Tennessee, for the Appellant, David Von Brown.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant 

Attorney General; Jody S. Pickens, District Attorney General; Al Earls, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner’s convictions result from his swerving across two lanes of traffic 

and almost hitting two pedestrians. An officer who observed the incident attempted to 

 

1 The trial court merged the two drug possession convictions, and it merged the four convictions for possessing a 

firearm during the commission of a dangerous felony.

09/11/2020
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stop the Petitioner, who fled by evasive driving. Eventually, the Petitioner stopped his 

car and fled on foot. The officer chased the Petitioner on foot and noticed that the 

Petitioner held something in his hand which reflected in the light of a street lamp. The 

officer attempted to restrain the Petitioner, who had tried to climb over a fence, and the 

two struggled until two other officers arrived to assist in handcuffing the Petitioner. 

Officers searched unsuccessfully for the object that had been in the Petitioner’s hand. 

The Petitioner was booked into the jail, at which time he had $670 in his possession. 

Later, an officer listened to recordings of the Petitioner’s jailhouse telephone calls. In a 

call, the Petitioner instructed another individual to “go to the front of [an individual’s] 

mom’s house . . . [and] check underneath the car.” Based upon this information, the 

police recovered a handgun and two bags of cocaine from underneath a car parked at an 

address where the Petitioner and the initial apprehending officer had struggled in the 

driveway on the night of the arrest. State v. David Von Brown, No. W2017-00220-CCAR3-CD, 2018 WL 1603044, at *1-3 (Tenn. Crim. App. Mar. 29, 2018), perm. app. denied

(Tenn. July 19, 2018).

Relative to the incident, the Petitioner 

was charged with possession of .5 grams or more of cocaine with intent to 

sell or deliver (Counts 1 and 2); possession of a firearm during the 

commission of a dangerous felony (Counts 3 and 4); possession of a 

firearm during the commission of a dangerous felony by one having a prior 

felony conviction (Counts 5 and 6); felony evading arrest (Count 7); 

reckless driving (Count 8); driving on a canceled, suspended, or revoked 

license (Count 9); driving on a canceled, suspended, or revoked license—

prior offender (Count 10); assault (Count 11); resisting arrest (Count 12); 

violation of the gang enhancement statute (Counts 13, 14, and 16); and 

felon in possession of a firearm (Count 15).

Prior to trial, the court granted the State’s motion to dismiss Count 8. 

The court also dismissed Counts 13, 14, and 16, relating to the gang 

enhancement statute, pursuant to this court’s decision in State v. Bonds, 502 

S.W.3d 118 (Tenn. Crim. App. 2016). It appears that an earlier trial was 

held in May 2016, at which the jury found the [Petitioner] guilty as charged 

in Counts 7, 9, 11, and 12 but was hung on the remaining counts. A few 

months later, the [Petitioner] entered a guilty plea in Count 10. A retrial 

was held on the remaining counts, Counts 1 through 6 and 15, in October 

2016.

Id. at *1.
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The Petitioner appealed after he was convicted at the second trial. He did not 

obtain relief on appeal, and he then filed a pro se post-conviction petition. As relevant to 

the current appeal, the petition alleged that he had received the ineffective assistance of 

counsel in the conviction proceedings. Counsel was appointed, although the Petitioner 

later retained counsel, who was substituted as counsel of record. A series of amended 

petitions were filed by the original counsel and by substitute counsel.

At the post-conviction hearing, trial counsel testified that his representation of the 

Petitioner began in circuit court. Counsel testified that, at the time, the Petitioner was 

serving a sentence related to a parole violation. Counsel said he met with the Petitioner 

either in person or by videoconference. He thought he reviewed the discovery material 

with the Petitioner at the jail.

Trial counsel testified that he “would have received an offer from the State” and 

that he did not recall specifics of the plea offer. Counsel said he would have reviewed the 

offer with the Petitioner to see if the Petitioner wanted to accept it or negotiate further. 

Counsel said he discussed the case at length with the Petitioner and recalled that the 

Petitioner “was pretty set on going to trial.” Counsel thought the State made a second, 

more favorable offer but that the Petitioner rejected it. Counsel said that the Petitioner’s 

first trial resulted in a hung jury and that the trial court declared a mistrial.2 Counsel said 

further plea negotiations “probably” took place after the mistrial but did not recall the 

specifics of an offer.

Trial counsel testified that the Petitioner filed several pro se motions. Counsel 

said he discussed these motions with the Petitioner and advised the Petitioner that counsel 

could not proceed on any motions for which no factual or legal basis existed. 

Trial counsel testified that the telephone call in which the Petitioner referred to 

items left at the place of his arrest did not contain specifics about the items. Counsel 

thought the evidence was recovered the day after the arrest. He said he did not need to 

request a bill of particulars to discover when the State alleged the evidence was collected. 

He said he “knew what the State was referring to” and that he was aware of the “specific 

allegation.”

Trial counsel testified that he discussed the possibility of a stipulation regarding 

the Petitioner’s prior felony conviction related to the gun possession charge. Counsel 

said he thought the Petitioner would not want the jury to know the specific conviction. 

Counsel said, however, that the Petitioner refused to stipulate to the existence of a prior

conviction. Counsel said he did not know if the Petitioner could not understand or was 

 

2 As we have stated, other evidence shows that the jury reached a verdict as to some counts but was deadlocked as to 

a verdict on others. The mistrial was related to the counts on which the jury was deadlocked.
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unconcerned about the jury’s knowing the specific offense involved in the prior 

conviction. Counsel thought the Petitioner’s desire not to stipulate to the existence of a 

prior conviction “was addressed before the Court at some point in time,” although it may 

not have been on the day of the trial. Counsel did not recall the specifics of the 

Petitioner’s criminal history. Counsel said that the if record showed that the Petitioner 

“had a prior felony that was not drug-related,” counsel would not have asked for the nondrug-related felony to “be admitted instead of the drug charge” if the indictment 

“indicated a felony drug offense.” Counsel agreed that the State had a choice as to which 

prior felony to elect and that counsel had no choice as to the prior felony the State 

elected.

Trial counsel testified that he “vaguely remember[ed]” ballistics testing having 

been performed and that he did not think it was used in this case. He did not recall DNA 

testing having been performed but said he would defer to the trial transcript if it reflected 

questioning about DNA testing. He said that DNA analysis and fingerprint analysis were 

not typically used in cases involving possession of a handgun. He said he generally did 

not ask for fingerprint testing in cases of this nature because “you may run the risk of 

giving incriminating evidence based upon your request.” He did not think he requested it 

in the present case. He said that if the State had not performed fingerprint analysis, he 

preferred to argue that the State had not fulfilled its burden of proof. Counsel agreed that 

the issue of propensity arose because the Petitioner was charged with a drug offense and 

had a prior drug conviction.

Trial counsel did not recall Lieutenant Rodney Anderson’s having testified at the 

trial that Lieutenant Anderson “had been involved numerous times with” the Petitioner. 

When shown the trial transcript reflecting that Lieutenant Anderson testified he was 

“familiar” with the Petitioner and had “dealt with him several times,” counsel said he did 

not object because Lieutenant Brown had not indicated how he met the Petitioner and 

because counsel did not want to ask for the specifics. 

Trial counsel testified that he did not question Officer Andy Smith about not

“wearing gloves” while collecting the gun and drugs as evidence. Counsel said he could 

have questioned Officer Smith about whether he had violated a policy but that he did not 

pursue this line of questioning because the main issue was whether Officer Smith found 

drugs and a gun. Counsel acknowledged, however, that if the transcript reflected that the 

items had been tested for DNA evidence, the transcript would be correct.

Regarding a portion of the trial transcript reflecting that trial counsel made a 

hearsay objection when Sergeant Gilley began testifying about what another officer told 

him about the Defendant’s having been arrested the previous night, trial counsel said he 

did not ask the court to instruct the jury to disregard the testimony because the 

information about the Defendant’s arrest was already before the jury.
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Trial counsel testified that he did not go to the crime scene in this case and that he 

typically did not in his cases. He agreed that the gun and drugs were found under a car 

parked in a carport. He agreed that factual issues existed regarding how the evidence got 

there and who might have put it there, given that the area was open. He did not recall the 

officers’ testimony about the extent of their investigation at the scene. Counsel did not 

think he needed to go to the scene in order to impeach an officer’s testimony about 

having seen the evidence under the car from the street. Counsel thought he could 

impeach the testimony “just based on everyday life and [his] own personal experience.”

Regarding a question from the jury about why the person with whom the 

Petitioner spoke by telephone from the jail was not called as a witness, trial counsel 

testified that he did not object to the trial court’s instruction that “the State chose not to 

call her to testify.” He said he did not perceive a basis for an objection and thought the 

court’s answer was sufficient. Counsel said that, upon reflection, he thought this 

witness’s testimony would have been more harmful than helpful to the Petitioner’s case if 

she had testified consistently with her pretrial statement. Counsel later said that he did 

not recall if the witness had been called at the Petitioner’s first trial but acknowledged 

that she might have been. He did not recall that she testified she had been forced to say 

untrue things in her pretrial statement, but he said, “She may have.” Counsel said he did 

not remember.

Trial counsel testified that he had filed a motion for jury instructions related to the 

proposed stipulation and that he had withdrawn the motion when the Petitioner refused to 

stipulate to the fact of his prior felony conviction. 

Trial counsel testified that he typically filed a notice of mitigating factors but that 

he did not have one in his file for this case. Counsel said he had misplaced his trial file 

but that he had his appellate file. Counsel agreed that he might have made a one-sentence 

request for the court to “consider all mitigating factors.” He did not recall having 

interviewed the Petitioner’s family members. He said he generally did not obtain a 

defendant’s school or mental health records unless they were relevant to an issue. He 

agreed that evidence of the Petitioner’s having complied with drug screens and having 

maintained employment while on parole “could be” mitigating evidence. Counsel 

thought evidence of this nature would have been included in the presentence report. 

Counsel agreed that the Petitioner faced a significant sentence and that an attorney’s job 

included ensuring that the court considered any mitigating evidence.

Trial counsel thought he had obtained a copy of the preliminary hearing transcript. 

He said that the district attorney’s office had an “open file” policy and that he would have 

had access to anything in the file. He agreed that he would have had the same 

information as the district attorney’s office, whether or not he filed a request for a bill of 
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particulars. He agreed that current caselaw held that no bill of particulars was necessary 

if the defense had access to all evidence in the State’s possession. Counsel said he took 

advantage of the State’s open file policy and was not surprised by anything that emerged 

during the trial. Counsel agreed the Petitioner had two trials and that counsel heard all of 

the evidence twice.

Trial counsel testified that he listened to the Petitioner’s jail telephone calls. 

Counsel agreed that a person had no expectation of privacy in jail telephone calls. He 

agreed that the Petitioner would have been notified of the lack of privacy and that there 

would have been no basis for suppression of the contents of the calls. He agreed that the 

drugs and gun were recovered based upon information obtained when the authorities 

listened to the recordings of the Petitioner’s telephone calls. 

The Petitioner elected not to testify. The presentence report, photographs of the 

trial evidence, preliminary hearing transcript, and pretrial statement of the person with

whom the Petitioner spoke during jail telephone calls were received as exhibits offered 

by the State.

The post-conviction court credited trial counsel’s testimony as “straightforward 

and truthful.” The court found that the Petitioner failed to carry his burden of showing 

that counsel’s performance had been deficient and that the Petitioner had been prejudiced 

by the alleged deficiency. This appeal followed.

On appeal, the Petitioner contends that the post-conviction court erred in denying 

relief on his claims that trial counsel was ineffective because counsel (1) failed to 

investigate adequately before the trial and the retrial, (2) failed to object to or failed to 

develop various evidentiary matters at the trial, and (3) engaged in “cumulative errors.” 

The State responds that the trial court did not err in denying relief. We agree with the 

State.

Post-conviction relief is available “when the 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.” T.C.A. § 40-30-103 (2012). A

petitioner has the burden of proving his factual allegations by clear and convincing 

evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are 

binding on appeal, and this court must defer to them “unless the evidence in the record 

preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 

1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction 

court’s application of law to its factual findings is subject to a de novo standard of review 

without a presumption of correctness. Fields, 40 S.W.3d at 457-58. 
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To establish a post-conviction claim of the ineffective assistance of counsel in 

violation of the Sixth Amendment, a petitioner has the burden of proving that (1) 

counsel’s performance was deficient and (2) the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,

506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland

standard to an accused’s right to counsel under article I, section 9 of the Tennessee 

Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an 

ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove 

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

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the 

performance prong, a petitioner must show that “the advice given, or the services 

rendered . . . are [not] within the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 

690. The post-conviction court must determine if these acts or omissions, viewed in light 

of all of the circumstances, fell “outside the wide range of professionally competent 

assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of 

hindsight, may not second-guess a reasonably based trial strategy by his counsel, and 

cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 

334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 

2008). This deference, however, only applies “if the choices are informed . . . based upon 

adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

To establish the prejudice prong, a petitioner must show that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

I

Failure to Investigate

The Petitioner contends that the post-conviction court erred in denying his 

ineffective assistance of counsel claim relative to trial counsel’s failure to request 

fingerprint testing of the gun collected as evidence. He argues that the gun should have 

been tested for fingerprints before the gun was submitted for ballistic testing, which 

destroyed potential fingerprint evidence. He also argues that counsel failed to visit and 

photograph the scene.

Trial counsel’s testimony reflects that he did not request fingerprint testing as a 

matter of strategy. He said fingerprint analysis was not typical in cases involving 

possession of a handgun and that he generally did not ask for fingerprint testing in 
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handgun possession cases because “you may run the risk of giving incriminating 

evidence based upon your request.” Counsel said that if the State had not performed 

fingerprint analysis, he preferred to argue that the State had not fulfilled its burden of 

proof. The post-conviction court credited counsel’s testimony regarding counsel’s trial 

strategy of arguing that the State had not met its burden, as opposed to requesting 

fingerprint analysis and risking the discovery of unfavorable evidence. We note, as well, 

that the Petitioner’s jail telephone calls identified a location where evidence was stored, 

and that the gun and drugs were later discovered at this location, which was the scene 

where he had been seen carrying something as he fled from police immediately before his 

arrest. Thus, even if fingerprint analysis had been conducted at counsel’s request and did 

not reveal the presence of the Petitioner’s fingerprints, other compelling evidence tied the 

Petitioner to prior possession of the gun. The post-conviction court concluded that the 

Petitioner failed to prove his claim, and the record supports the court’s determination.

Turning to the Petitioner’s argument that trial counsel was ineffective because 

counsel did not visit and photograph the scene, the record reflects that counsel did not 

think this was necessary in order to conduct an effective cross-examination of the officer 

who discovered the gun and drugs under the car at the scene. The photographs received 

as exhibits depict the gun and drugs under a car at the scene, but they do not suggest any 

limitations on counsel’s ability to cross-examine the officer who discovered the items 

based upon counsel’s lack of first-hand familiarity with the scene. The Petitioner did not 

offer any photograph evidence at the post-conviction hearing to demonstrate that counsel 

could have more effectively impeached the officer with the use of photographs that 

counsel could have taken if he had visited the scene. Counsel testified that the State had 

an open file policy and that he was able to review any evidence in the State’s possession 

before the trial, which would have included the State’s photographs of the scene. The 

post-conviction court found that counsel determined that visiting the scene was 

unnecessary, based upon the discovery information and the facts of the case. The court 

also found that the Petitioner failed to show that counsel’s lack of visiting the scene 

impaired the defense. The court credited counsel’s testimony, and the record supports its 

determination.

Upon review, we conclude that the record supports the post-conviction court’s 

determination that the Petitioner failed to prove his claims regarding the adequacy of trial 

counsel’s investigation. The Petitioner is not entitled to relief on this basis.

II

Evidentiary Issues

In a myriad of complaints regarding evidentiary issues at the trial, the Petitioner 

contends that trial counsel was ineffective because counsel (1) did not object to 
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Lieutenant Anderson’s testimony that he knew the Petitioner from previous encounters, 

(2) did not question Officer Smith adequately about Officer Smith’s collection of the gun 

without wearing gloves, (3) did not question Tennessee Bureau of Investigation Brock 

Sain properly regarding the identity of the person who requested DNA analysis and 

ballistic testing, (4) did not object properly to Sergeant Gilley’s testimony regarding 

another officer’s statement to Sergeant Gilley about the Petitioner’s having been arrested 

the previous night, (5) did not object properly to the trial court’s answer to the jury’s 

question about why a potential witness did not testify, and (6) did not object to the use of 

the Petitioner’s prior felony drug conviction relative to the weapon possession charge.

First, the Petitioner argues that trial counsel was ineffective because counsel did 

not object to Lieutenant Anderson’s testimony that Lieutenant Anderson was familiar 

with the Petitioner from previous encounters. Counsel testified that he did not object

because Lieutenant Anderson did not provide specifics about the nature of the previous 

encounters and because counsel did not want to ask for the specifics. The court credited 

counsel’s testimony and found that, in the context of the question, counsel’s performance 

had not been deficient on the basis that counsel did not object. The court noted, as well, 

that it instructed the jury that the State had the burden of proof and that the jury should 

not single out any item of evidence. Additionally, the jury received evidence of the 

Petitioner’s prior conviction, which provided contextual information consistent with the 

officer’s familiarity with the Petitioner. The record supports the post-conviction court’s 

denial of relief on this basis.

Second, the Petitioner argues that trial counsel was ineffective because counsel did 

not to question Officer Smith adequately about Officer Smith’s collection of the gun 

without wearing gloves. The post-conviction court made the following findings in its 

order denying relief:

The issue regarding the failure to question witnesses about not preserving 

DNA or other evidence [and/or] not following proper protocol in forensic 

examination of a firearm was discussed at trial and the witness gave an 

explanation as to what testing was done by the TBI and why. [Trial 

counsel] testified [at the post-conviction hearing] that you can argue burden 

of proof is always on the State but if you do request testing that can 

backfire on the defense. The court finds that trial counsel was not 

ineffective on this issue and that counsel did raise the matter and made 

argument as to this issue to the jury.

Counsel’s testimony reflects that he chose not to request forensic testing as a matter of 

trial strategy. It follows that inquiry into the procedure for the collection of evidence that 

was never tested would have been of little consequence in determining whether the State 

had proven the Petitioner’s guilt of the charged offenses. The record supports the post-
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conviction court’s determination that the Petitioner failed to prove his ineffective 

assistance of counsel claim relative to cross-examination of Officer Smith.

Next, the Petitioner argues that trial counsel was ineffective because counsel did 

not question Agent Sain about the identity of the person who requested DNA analysis and 

ballistics testing. We note, first, that although the issue regarding the questioning of 

Agent Sain was raised in the third amended petition, the Petitioner did raise it at the postconviction hearing. Although the post-conviction court did not specifically address the 

cross-examination of Agent Sain in its order denying relief, we interpret the court’s 

findings, quoted in the previous paragraph, as broadly applicable to all witnesses the 

Petitioner alleges trial counsel failed to cross-examine adequately regarding the 

collection, preservation, and testing of the physical evidence. With regard to Agent Sain, 

specifically, this court’s opinion in the Petitioner’s appeal of his convictions reflects the 

following: “On cross-examination, Special Agent Sain agreed that the TBI had facilities 

for testing DNA and fingerprints, but it was only requested that he conduct an analysis on 

the narcotics.” David Von Brown, 2018 WL 1603044, at *3. We conclude that the 

Petitioner’s issue regarding cross-examination of Agent Sain is based upon a faulty

factual premise -- that someone requested DNA analysis and ballistics testing -- even 

though counsel’s cross-examination of Agent Sain at the trial showed that no DNA and 

ballistics testing had been requested. Thus, a question about who requested the testing 

would have been nonsensical. The jury knew, based on counsel’s cross-examination of 

Agent Sain, that no DNA analysis and fingerprint testing was requested. The record 

supports the post-conviction court’s denial of relief on this basis.

Fourth, the Petitioner argues that trial counsel did not object properly to Sergeant 

Gilley’s testimony regarding another officer’s statement to Sergeant Gilley about the 

Petitioner’s having been arrested the previous night. The Petitioner concedes that 

counsel objected but faults counsel for not having asked the judge to instruct the jury to 

disregard the testimony and for not moving for a mistrial. Counsel testified that by the 

time of Sergeant Gilley’s testimony, the jury had already heard evidence that the 

Petitioner had been arrested. The Petitioner has not explained how counsel performed 

deficiently by not requesting an instruction to strike the testimony and by not requesting a 

mistrial, nor has he explained how counsel’s lack of action prejudiced him, given the 

jury’s prior knowledge of the facts about which Sergeant Gilley testified. The record 

supports the post-conviction court’s denial of relief on this basis. 

Fifth, the Petitioner argues that trial counsel did not object properly to the trial 

court’s answer to the jury’s question about why a potential witness did not testify. 

Counsel testified that he did not object because he thought the court provided an accurate 

answer to the jury’s question when the court advised the jury that the potential witness 

did not testify because the State chose not to call her as a witness. The Petitioner argues 

that the court’s answer “indicates that the proof was strong enough that [the potential 
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witness’s testimony] was not necessary” and that the court’s response “opens the door to 

conjecture by the jury when it would have been sufficient for the jury to be instructed to 

merely consider the evidence before them.” In denying relief, the post-conviction court 

found that the Petitioner’s allegation “rests on pure speculation.” The court stated that 

the trial court “properly received the question and gave the proper response to the 

question” and that the post-conviction court “cannot speculate as to what the jury might 

have been thinking.” The record supports the post-conviction court’s determination.

Sixth, the Petitioner argues that trial counsel was ineffective because counsel did 

not object to the use of the Petitioner’s prior felony drug conviction relative to the 

weapon possession charges. The Petitioner argues that evidence of the previous 

conviction was barred by Tennessee Rule of Evidence 404(b) because it could be used as 

propensity evidence. He claims that his prior burglary conviction, rather than his prior 

drug conviction, should have been used. Counsel testified that he tried to convince the 

Petitioner to stipulate to the existence of a prior conviction but that the Petitioner refused. 

Counsel also testified that the State, not the defense, controlled the decision as to which 

prior felony conviction to rely upon in seeking a conviction for the weapon possession 

charge. The post-conviction court found that counsel discussed the matter fully with the 

Petitioner, who refused to stipulate. The court found that the Petitioner made his choice 

and that he had failed to show counsel had not advised him properly. The court also 

found that the felony chosen by the State for proving the firearm offenses “is not for the 

defense to decide” and that counsel was not ineffective for not objecting. 

The Petitioner was charged with possession of a firearm with the intent to go 

armed during the commission of a dangerous felony, for which existence of a prior felony 

conviction is a statutory sentencing enhancement factor. See T.C.A. § 39-17-1324(a), 

(g)(2) (2018) (subsequently amended). As such, a jury’s finding was required. See 

Apprendi v. New Jersey, 530 U.S. 466 (2000); State v. Gomez, 239 S.W.3d 733 (Tenn. 

2007). The Petitioner was also charged with unlawfully possessing a firearm after being 

convicted of a felony drug offense, meaning that the existence of a prior felony drug 

offense was an element of the crime. See T.C.A. § 39-17-1307(a)(1), (b)(1)(B), (b)(3) 

(Supp. 2013) (subsequently amended). The Petitioner has cited no authority for the 

anomalous proposition that, notwithstanding the requirement that the State prove the 

existence of the prior offense in order to obtain sentence enhancement or a conviction, a 

defendant may interpose a Rule 404(b) objection which prevents the State from proving 

its case. He also has cited no authority for the proposition that a defendant, rather than 

the State, has the right to elect the prior felony conviction upon which to rely in seeking 

sentence enhancement or a conviction for these firearm offenses. The record supports the 

post-conviction court’s determination. The Petitioner is not entitled to relief on this 

basis.
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III

“Cumulative Errors”

The Petitioner contends that trial counsel was ineffective due to “cumulative 

errors,” consisting of the failure to file mitigating factors relevant to sentencing, failing to 

negotiate a plea agreement following the mistrial, and failing to advise the petitioner 

adequately regarding the effect of not stipulating to the existence of a prior conviction. 

The State responds that the trial court did not err in denying relief.

First, regarding the failure to file mitigating factors, the Petitioner argues that 

counsel should have noted for the trial court that most of the Petitioner’s prior 

convictions were driving-related and that he had maintained employment and passed drug 

screens while on “supervised release.” The trial record reflects that trial counsel relied 

upon the “catchall” mitigating factor and referred the trial court to unspecified evidence 

presented at the trial. The presentence report reflects that the Petitioner had an extensive 

criminal history which included prior felony convictions for evading arrest, automobile

burglary, and four drug offenses. In addition, he was on parole at the time he committed 

the offenses, and he had violated the terms of previous probationary sentences. The 

Petitioner’s argument that his prior offenses consisted mostly of driving-related offenses 

is overshadowed by his history of felony convictions, and his argument that he should 

have received mitigating credit for his limited compliance with the conditions of release 

is likewise overshadowed by his repeated failures to do so in other instances. 

Second, the Petitioner argues that trial counsel failed to negotiate a plea agreement 

following the mistrial. The post-conviction court found that plea negotiations took place 

before and after the first trial and that the Petitioner “was simply adamant about going to 

trial.”

Third, the Petitioner argues that trial counsel failed to advise him adequately 

regarding the effect of not stipulating to the existence of a prior conviction. As we have 

stated, the post-conviction court found that counsel discussed the matter thoroughly with 

the Petitioner but that the Petitioner refused the stipulation.

The Petitioner argues that the foregoing alleged errors and omissions of counsel 

constituted cumulative error. The cumulative error doctrine requires relief when 

“multiple errors [are] committed in the trial proceedings, each of which in isolation 

constitutes mere harmless error, but which when aggregated, have a 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, 76-77 (Tenn. 2010) (internal citations omitted); 

see State v. Jordan, 325 S.W.3d 1, 79 (Tenn. 2010) (“‘[T]he combination of multiple 

errors may necessitate . . . reversal . . . even if individual errors do not require relief.’”) 
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(quoting State v. Cribbs, 967 S.W.2d 773, 789 (Tenn. 1998)). Here, the Petitioner failed 

to establish a single instance of deficient performance. Thus, no cumulative effect of 

counsel’s alleged errors exists. See James Allen Gooch v. State, No. M2014-00454-

CCA-R3-PC, 2015 WL 498724, at *10 (Tenn. Crim. App. Feb. 4, 2015) (stating that “a 

petititoner cannot successfully claim he was prejudiced by [trial] counsel’s cumulative 

error when the petitioner failed to show [trial] counsel’s performance was deficient.”).

In consideration of the foregoing and the record as a whole, the judgment of the 

post-conviction court is affirmed.

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE