IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 14, 2009 Session

ROOSEVELT MORRIS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 02-06321 Chris Craft, Judge

No. W2008-01449-CCA-R3-PC - Filed October 11, 2010

Petitioner Roosevelt Morris was convicted of two counts of attempted murder, and received

an effective sentence of fifty years in the Tennessee Department of Correction. This court

affirmed the conviction on appeal but reduced his sentence to forty-seven years. Petitioner

filed a petition for post-conviction relief, arguing that his counsel was deficient for (1) failing

to object to the State’s questions and closing arguments concerning Petitioner’s post-arrest

silence; (2) failing to object to other prosecutorial misconduct during the closing argument;

and (3) failing to have the magazine and the unfired bullet in the firearm used in the crime

examined for fingerprint evidence. Petitioner also contends that his sentence violated

Blakely v. Washington, 542 U.S. 296 (2004), and its progeny. We affirm.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Roosevelt Morris.

Robert E. Cooper,Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Chris West, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Background
We detailed the facts leading to Petitioner’s conviction in our opinion adjudicating his

direct appeal. See State v. Roosevelt Morris, No. W2004-02277-CCA-MR3-CD, 2005 WL

6235723, at *1-6 (Tenn. Crim. App. at Jackson, Sept. 7, 2005). They are as follows:

Teresa Washington testified that she met and began dating [Petitioner], in

December 2000. In approximately September 2001, the two began living

together in a residence on Glankler. In approximately November 2001,

[Petitioner] moved out of the residence, taking his furniture with him. Ms.

Washington stated that she “just no longer wanted to be with him. He was

controlling.” Ms. Washington testified that after [Petitioner] left, he started

calling her and going by her residence and her work-place. She did not want

or invite or encourage these calls or visits.

Ms. Washington stated that [Petitioner] threatened her, “saying things like he

wasn't going to leave her alone. And that if he couldn't have her, no one else

could have her.” When Ms. Washington met James Davis in January 2002 and

began dating him, she sought and obtained an order of protection against

[Petitioner]. The order was entered by the general sessions court of Shelby

County, Tennessee, on February 12, 2002. A copy of the order was admitted

into evidence and provides, in pertinent part, that [Petitioner] “is refrained

from coming about Ms. Washington for any purpose and specifically from

abusing, threatening to abuse her, or committing any acts of violence upon

her.” The order also prohibited [Petitioner] from telephoning Ms. Washington,

stalking her, and committing acts of violence against her property. According

to Ms. Washington, [Petitioner] was not deterred by the order, but continued

to call her and come over to her home. She stated that, at one point, he “pulled

up all her landscaping and put black tar over her motion detector lights so that

they wouldn't go off and unscrewed her light bulbs.”

Ms. Washington testified that [Petitioner] called her on the morning of May

17, 2002, and told her he “had something for her.” She replied that he did not

have anything for her and hung up. That night, she arrived home at about

12:30 a.m. Mr. Davis was already at her home. She parked her car behind his

in the single lane driveway. She went to bed with Mr. Davis but heard noises

that sounded like someone was outside. She told Mr. Davis but he replied that

it was just the wind. She tried to look out of her windows with a flashlight but

did not see anything.

She and Mr. Davis woke up at about four o'clock that morning. Mr. Davis had

to leave to go to work. Ms. Washington went out of the house so that she

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could move her car in order that Mr. Davis could leave in his car. She opened

the front door and began to open the glass storm door. Mr. Davis was standing

behind her. Ms. Washington described what happened next:

I opened my door and I seen someone standing over to my right

and I screamed. And I seen this flashing, a boom go off. And

it went off again. I just saw a flash. So I fell out on my floor

and I played dead.

Ms. Washington said that, with the second “boom,” which was just seconds

after the first one, she felt a bullet go past her left temple. As she was laying

in the doorway curled in a fetal position “playing dead,” she felt the person

step over her into the house. She then heard more gunshots and the sound of

one or more persons falling to the floor. Ms. Washington next heard Mr.

Davis pleading for his life and telling the intruder to let the gun go. At that

point, she testified, she heard [Petitioner’s] voice. [Petitioner] said that they

had ruined his life and that he was going to kill them.

When Ms. Washington realized who the intruder was, she jumped up and ran

to see if she could assist Mr. Davis in wresting the gun from [Petitioner]. The

two men were on the floor struggling, with Mr. Davis on top of [Petitioner].

Ms. Washington jumped on Mr. Davis’ back and reached down, trying to get

the gun away from [Petitioner]. She then noticed that [Petitioner] was wearing

gloves. At that point, she testified, she “just panicked and . . . just went after

[Petitioner’s] eyeballs.” Ms. Washington tried to gouge out [Petitioner’s] eyes

with her fingers.

Ms. Washington did not realize that Mr. Davis had been shot. As she was on

his back trying to injure [Petitioner], Mr. Davis told her that he had been shot

and that she was “smushing” him such that he couldn’t breathe. Ms.

Washington got off of Mr. Davis and ran to a neighbor’s house to call the

police. When the neighbor answered the door, she explained what was

happening. The neighbor called the police and would not let Ms. Washington

leave until the police arrived.

James Davis testified that he is six feet, two inches tall and weighs 280

pounds. He stated that he knew of [Petitioner] prior to the shooting, but had

not met him. They had spoken over the telephone three or four times when

[Petitioner] was seeking to speak to Ms. Washington. Mr. Davis stated that his

conversations with [Petitioner] during these calls were not hostile.

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Mr. Davis testified that, on the night in question, he arrived at Ms.

Washington’s house at around midnight; Ms. Washington was already there.

They went to bed and woke up at about four o’clock a.m.; he was running late

for work and was in a hurry. When he went to leave, Ms. Washington was in

front of him at the front door. Mr. Davis testified:

Ms. Washington opened the inner door and she unlocked the

outer door and all of a sudden a body appear. I hear a shot,

boom, she screams, she falls. And, well, after that this

gentleman entered the house, he shoots me and he’s just goes

shooting three or four more times.

Mr. Davis testified that the “gentleman” was wearing a cap, a black jacket and

black jeans. He was also wearing black gloves.

Mr. Davis stated that he thought he recognized the intruder as a man that he

had seen walking in front of the house a number of times. Mr. Davis

explained that the intruder was the same height and had the same “high

cheekbones” as the man he had seen previously.

Mr. Davis explained that the intruder shot him as he stepped over Ms.

Washington and entered the house. Mr. Davis was shot in the right chest. The

intruder shot several more times as he came into the house. The shots then

paused and Mr. Davis noticed that the intruder was “messing with” the gun

because it had “jammed.” At that point, Mr. Davis threw his hands around the

intruder’s neck and “throwed him on the floor.” The intruder hit his head on

the coffee table as the two men fell to the floor. The two men began struggling

over the gun. The intruder said, “Y’all don’t know what love is. Y’all done

ruined my life.”

The men continued to struggle over the gun. Ms. Washington got up and

jumped on Mr. Davis’ back. She tried to gouge out the intruder’s eyes and was

jumping up and down on Mr. Davis while doing so. Mr. Davis told her to “get

up” because he had been shot. Ms. Washington then ran out of the house.

Mr. Davis kept trying to get the gun away from the intruder but he would not

let it go. After Ms. Washington left, he finally let go of it. Mr. Davis stated

that the intruder then got up and ran away. Mr. Davis was not able to chase

after him, but made it out onto the front porch. He hollered for help but kept

getting weak. He laid down on the porch and the next thing he knew, the

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police were there. They discovered a handgun under Mr. Davis and took

control of it. The paramedics then arrived and took Mr. Davis to the hospital.

Mr. Davis identified [Petitioner] at trial as the intruder who shot him. Mr.

Davis also identified a cap recovered at the scene as the one worn by

[Petitioner] during the attack.

Officer James Gaylor received a “shots fired” call and responded to the scene

at about 4:45 in the morning on May 18, 2002. He saw a man lying on the

porch who appeared to be hurt or wounded. Officer Gaylor approached and

noticed a handgun laying under the man; the man did not have the gun in his

hand. Officer Gaylor recovered the gun and handed it to Officer Paul Bishop,

who had also arrived on the scene.

Officer Paul Bishop testified that he checked the gun and found one live round

in the chamber, none in the magazine. Officer Bishop described the gun as a

.380 semiautomatic. Officer Bishop identified the gun at trial and it was

admitted into evidence. He stated that he determined during his investigation

that the gun had not been reported stolen, but he did not know who owned the

gun.

Officer Bishop explained that Ms. Washington was across the street when he

arrived, “frantically screaming.” She came over to them as they were

attending to Mr. Davis. Officer Bishop stated that it took about an hour for

Ms. Washington to tell him what had happened. By this time, Mr. Davis had

been transported to the hospital. Officer Bishop testified as to what Ms.

Washington told him as follows:

She stated that her boyfriend, Mr. Davis, had to go to work. That

she had to move her car, it was a single car driveway with the

two cars parked in the drive. She said that she opened the door,

she saw something off to the side and then heard two shots. The

door that she had opened was a wrought iron door that had glass

panels in it. The glass panel shattered. She fell backwards into

the house.

She then stated that, that she was laying on the ground when her

ex-boyfriend rushed into the house, more shots were fired. Mr.

Davis was struck. That the two were wrestling on the ground.

And she told me that she tried to gouge his eyes out.

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Officer Bishop also stated that Ms. Washington told him the attacker’s name

was Roosevelt Morris. She also told him that [Petitioner] had threatened her

over the phone the day before, telling her he had “something for her.” Ms.

Washington told Officer Bishop about the order of protection.

Officer Bishop went to the hospital later that morning and spoke with Mr.

Davis. He asked Mr. Davis about what had happened and Mr. Davis told him

“that he was leaving his girlfriend’s house when her ex-boyfriend entered the

house. That they fought over a gun and he got shot.” Mr. Davis told Officer

Bishop that the ex-boyfriend had brought the gun into the house.

The police put out a bulletin on [Petitioner] advising that he might have eye

injuries. A call came in from the same hospital in which Mr. Davis was

located that a man had come in with eye injuries. Officer Bishop responded

and found [Petitioner] in a trauma room. [Petitioner’s] eyes were bleeding.

Officer Bishop asked [Petitioner] his name, and [Petitioner] responded,

“Roosevelt Morris.” Officer Bishop placed [Petitioner] under arrest. Officer

Bishop had no further conversation with [Petitioner].

Sergeant Michelle Oliver testified that she was one of the crime scene officers

investigating this case. At the scene, she found broken glass on the front porch

and what appeared to be blood. She described the items inside the front room

of the house as “disheveled.” She and Officer Alvin Peppers collected two

empty shell casings from inside the house and she saw two holes in one of the

walls that appeared to have been made by bullets. They found no shell casings

in the yard. She did not test for any fingerprints at the scene.

Officer Alvin Peppers, who assisted Sgt. Oliver as a crime scene officer,

testified that there appeared to have been a struggle inside the residence. He

described the two shell casings collected as .380 caliber.

[Petitioner] testified on his own behalf. He acknowledged his past romantic

relationship with Ms. Washington and agreed that they had lived together on

Glankler for several months. He offered a different explanation of why they

broke up, however. [Petitioner] testified that Ms. Washington had “at times

. . . a very nasty attitude, and was very controlling and very demanding.”

[Petitioner] also found Ms. Washington’s mother “absolutely intolerable.” The

final straw, however, was some nude photographs that Ms. Washington kept

of her ex-boyfriends. Ms. Washington refused to destroy the photographs in

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spite of [Petitioner’s] request. When he discovered that she had kept the

photographs, he “just couldn’t . . . take no more.” At that point, he moved out

and they broke up.

[Petitioner] testified that Ms. Washington was pregnant at the time they broke

up. He stated that, after he left, she filled up his answering service with

messages: “all of them were pleading him to come back home. Why did he

leave? . . . Oh, what about the baby?” When he returned the calls a few days

later, she was “absolutely furious.” She told him she was going to have an

abortion.

[Petitioner] next spoke with Ms. Washington by telephone in January. He

described this conversation as “very amiable.” He stated that she told him that

she had had the abortion, and wanted to know if he was interested in knowing

if it was a boy or a girl. He thought he remembered her telling him it was a

boy. Later that month, he testified, they got together and ate, went shopping,

and then to a hotel. [Petitioner] stated that he and Ms. Washington had

consensual sexual contacts three or four times between January 2002 and May

18, 2002. [Petitioner] also stated that he was aware of the order of protection

during this time.

[Petitioner] testified that Ms. Washington left a message on his service on May

17, 2002. When he returned the call, she told him she wanted to get together.

He asked her for a good time to come by, and she told him it would have to be

after three a.m. so that Mr. Davis would be gone. She told him to knock

“lightly” on the door and that if she did not answer, to leave. [Petitioner]

followed these instructions. Ms. Washington opened the door and as he began

to walk into the house, he noticed a “strange look” on Ms. Washington’s face.

[Petitioner] stated that it “wasn’t a pleasant look.” As he went through the

door, he stated, he saw Ms. Washington looking beyond him and he felt a

“presence” behind him. He turned around and saw Mr. Davis behind him with

a gun.

According to [Petitioner], he and Mr. Davis began struggling with the gun at

that point. [Petitioner] described himself as five feet, six inches tall, 180

pounds, and said he knew what he had to do was to hold onto the hand in

which Mr. Davis held the gun. [Petitioner] stated, “I would not let it go.”

During the struggle, Ms. Washington struck [Petitioner] on the back of his

head with an object.

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[Petitioner] stated that the gun went off several times during the struggle.

[Petitioner] stated that the gun went off while they were in the house and that

the struggle continued outside onto the porch where the gun discharged again.

During the struggle, somebody started gouging him in his eyes. At some point

he heard Mr. Davis say something about being hurt or hit or something and

while Mr. Davis seemed distracted by his condition, [Petitioner] fled. He

stated that he ran around to the next street and returned to the hotel room that

he had rented for his “rendezvous” with Ms. Washington. From there he

managed to drive to his brother’s house where he was living, in spite of his

“substantially injured” eyes. From there, he stated, his brother called 911. An

ambulance arrived and took him to the hospital.

According to [Petitioner], he had suffered from a “fractured skull” and “air on

the brain.” Additionally, “the protective skin over the outer eye was severely

lacerated” and his corneas and retinas were “severely damaged.” He was told,

he said, that his fractured skull could not be treated and he was given

“something, they said it would, they would dissolve that air bubble.”

Id. (brackets omitted).

Petitioner asserted at trial that the police immediately focused their investigation on

him. Petitioner maintained that despite his desire to speak with the authorities, he was never

given an opportunity to do so. According to Petitioner, the police investigation was

conducted in a shoddy manner and gave unjustified weight to the victims’ allegations.

On cross-examination, Petitioner acknowledged that he did not contact police after

the shooting, that he fled the scene, and that his testimony at trial was the first time he had

given his version of the shooting.

In support of his claims of shoddy police work, Petitioner called Sergeant E.J. Prewitt

to testify at trial. A member of the Memphis Police Department’s Domestic Violence Unit,

Sergeant Prewitt was the coordinator for the case. On direct examination, Sergeant Prewitt

testified that he took Ms. Washington’s statement but no others. He explained that he was

unable to take Petitioner’s statement at the hospital because Petitioner was unable to

communicate. Furthermore, he testified that he never attempted to get Petitioner’s statement

after Petitioner was released from the hospital. On cross-examination, the State elicited

without objection that Petitioner never approached Sergeant Prewitt to make a statement.

Petitioner’s trial counsel took an admittedly “novel” tack during closing argument by

delivering it largely in the character of what Petitioner asserted was Ms. Washington’s

-8-
vindictive alter ego, “Reecy.” Counsel, playing the part of Reecy, told the jury that Reecy

had orchestrated the attack on Petitioner and that she “contoll[ed]” the criminal justice

system to get away with it.

On rebuttal, the State lashed out at Petitioner’s closing, calling it, among other things,

a “forty-five minute comedy routine.” The State argued that Reecy was a “fat figment of

[Petitioner’s] mind.” It also rejected the notion that Ms. Washington had manipulated the

criminal justice system, specifically arguing that the system had not been “fooled” by Ms.

Washington. The prosecutor further argued that he had an ethical obligation “to seek truth

and justice” and that he could not present a case that he did not believe had a factual basis.

These comments alluded to an exchange between counsel and Petitioner during his crossexamination in which Petitioner explained that he did not tell the prosecutor his side of the

story because he assumed the prosecutor was only interested in convicting him.

The jury convicted Petitioner on both counts, and the court sentenced him to an

effective term of fifty years incarceration. On appeal, Petitioner asserted, among other

things, that his sentence violated the United States Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004). We affirmed Petitioner’s conviction. In rejecting

Petitioner’s Blakely argument, we held that our decision was controlled by the Tennessee

Supreme Court’s decision in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) (Gomez I).

Nevertheless, in our de novo review of Petitioner’s sentence, this court concluded that the

trial court improperly applied enhancement factors and modified his sentence to forty-seven

years. Petitioner did not seek review from our supreme court.

Petitioner then filed a pro se petition for post-conviction relief. He was appointed

counsel, who filed an amended petition raising numerous claims of ineffective assistance of

counsel. The post-conviction court denied relief.

On appeal, Petitioner contends that his trial counsel was ineffective for failing to

object to (1) questions regarding his post-arrest silence during Sergeant Prewitt’s crossexamination; (2) the State’s comments about Petitioner’s post-arrest silence during closing

argument; and (3) other instances of prosecutorial misconduct. He also asserts that counsel

was ineffective for failing to have the gun’s clip, the bullet casings, and the unfired bullet

tested for fingerprints. Finally, he contends that his sentence violated Blakely and that

pursuant to the United States Supreme Court’s decision in Danforth v. Minnesota, 552 U.S.

264 (2008), this court should apply the Blakely rule retroactively to correct that error.

At the post-conviction court’s hearing on the petition, Petitioner’s trial counsel, who

had practiced criminal law since 1993, recalled that she met with Petitioner “numerous

times” prior to trial and that she prepared the trial strategy with his assistance. Counsel said

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the State offered a fifteen-yearsentence if Petitioner pled guilty. However, Petitioner refused

the offer and insisted on going to trial. Petitioner was upset because the police had never

interviewed him regarding the shooting. Petitioner believed that the police investigation was

“shoddy.” Counsel testified that Sergeant Prewitt was called in order to support the defense

claims that the investigation was inadequate.

Counsel testified that she did not object when the State asked Officer Bishop during

its case-in-chief whether Petitioner spoke to the officer while he was at the hospital. She

explained that it was not objectionable given the defense’s theory of the case. In particular,

trial counsel explained that although “on the surface” such questioning might be

objectionable, “one of the things that [Petitioner] really wanted to point out during this trial

was self-defense and the fact that Miss Washington had scratched his eyes out.”

Consequently, while the questions “could have been interpreted” as commenting on

Petitioner’s post-arrest silence, “as far as the defense theory goes for self-defense, that was

something that [Petitioner] wanted . . . to be known to the jury.” Trial counsel also recalled

that because she was unable to interview Officer Bishop before the trial, she did not know

what his answer would be and thought that it could be helpful to the defense.

Trial counsel testified that she questioned Officer Bishop about whether he

interviewed Petitioner at the hospital shortly after the incident. She said she did so because

she wanted to draw out that Petitioner was physically incapable of participating in an

interview “because he had been so maimed by Mr. Davis.”

Trial counsel was then asked about why she questioned Officer Bishop about whether

“anyone ever interview[ed]” Petitioner. She explained that Petitioner “was very adamant

about the fact that he was actually the victim of a crime and no one ever took a statement

from him.” Petitioner “wanted that to be known.” Trial counsel further testified that she

advised the prosecutor that Petitioner wanted to give a statement but the prosecutor “was not

interested.” She added that Petitioner “was upset and offended by the fact that the State of

Tennessee had never asked him his side of what happened.” On cross-examination, trial

counsel explained that eliciting this testimony was part of her trial strategy, and thus “there

were multiple reasons why [she was] bringing [it] up in trial.”

Trial counsel’s testimony then turned to the examinations of Sergeant Prewitt. She

testified that she asked Sergeant Prewitt whether he took any statements from Petitioner

because the defense was “trying to point out during the trial . . . that there was shoddy

investigation. And by asking these types of questions, [trial counsel] thought that that would

help . . . further that point.” She recalled that she also asked Sergeant Prewitt whether he

“questioned the neighbors” so that the jury could “get a full feel of exactly what happened.”

In short, as trial counsel testified during cross-examination, she asked Sergeant Prewitt these

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questions as “part of [the defense’s] theory of the case.” Trial counsel also testified that

when the State asked Sergeant Prewitt on cross-examination if Petitioner ever came to the

police to give a statement she did not think an objection was appropriate because she had

“already opened the door to [those] types of questions.”

During Petitioner’s testimony at trial, trial counsel asked Petitioner whether he was

“ever offered a chance to make a statement.” Petitioner responded that he was not and

explained why he thought he was not given such a chance. At the post-conviction hearing,

trial counsel testified that she asked these questions because she was “trying to show that

during the police investigation . . . [the police] weren’t trying to get a feel for the entire

story.” She explained that Petitioner “wanted his story to be told because he felt that he had

been victimized himself, and he felt that that would help his case.”

When Petitioner was cross-examined by the State, trial counsel did not object to a line

of questions concerning whether Petitioner ever made a statement to the police. At the postconviction hearing, trial counsel explained that she did not object to the questioning because

of all the testimony she elicited on direct examination about Petitioner not being able to make

a statement. Trial counsel recalled that, at Petitioner’s “insistence,” the defense “opened the

door to that line of questioning.” Consequently, trial counsel did not “[feel] like that . . .

objection would . . . have been well taken by the Court.”

Trial counsel’s post-conviction testimony then turned to questions regarding the

State’s closing argument. In particular, trial counsel testified that she declined to object to

certain arguments made by the State concerning Petitioner’s post-arrest silence because they

were simply a recitation of “testimony that was actually brought out during the trial.” At

other points, trial counsel declined to object because she considered the argument to be the

State’s “theory of the case,” which it is allowed to present at closing. At still other points,

such as when the State explained that Petitioner waived his right to remain silent when he

took the stand to testify, trial counsel stated that she did not object because the State began

by noting that Petitioner did not “have to prove anything.” She testified, however, that the

State’s argument concerning Petitioner’s silence while he was in the hospital “got past” her

and that she should have objected because the evidence at trial was that Petitioner was

physically unable to make a statement at that point. Trial counsel further testified that she

did not consider the State to ever be equating Petitioner’s silence with guilt. Rather, she

interpreted the State’s argument to merely be “responding to [Petitioner’s] testimony that

he’d never been given an opportunity to make a statement.” Trial counsel testified that she

was familiar with the law concerning a criminal defendant’s right to remain silent, however,

she explained, “that was something that [Petitioner] was waiving because he wanted to . . .

make statements and he wanted to bring it out during the trial that he . . . had never been

given an opportunity to make a statement.”

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Trial counsel recalled that she did not object to the portions of the State’s closing

argument concerning prosecutorial ethics and the prosecutor’s oath “to seek truth and justice”

because she believed the State “was referring to some direct testimony given by [Petitioner]

. . . that [the prosecutor’s] job was to seek convictions.” At other points, trial counsel

declined to object because she was unable to make sense of the State’s argument. But she

recalled objecting to the State’s argument comparing the prosecutor’s obligation to “seek

truth and justice” and a defense attorney’s obligation to “zealously represent her client.” On

cross-examination during the post-conviction hearing, trial counsel testified thatshe objected

to the State’s closing at certain points “because of the way [she] felt that [the State] was

characterizing the job of defense attorneys.” She recalled that the trial court ruled that the

State should address the ethical obligations of defense attorneys later in the closing, but the

State did not do so. Trial counsel therefore objected again at the conclusion of the State’s

argument. The trial court said it would give a curative instruction.

Trial counsel testified that she used a novel style in her closing argument. She said

she learned of this style during a Tennessee Association of Criminal Defense Lawyers

seminar and had used it successfully at prior trials. Trial counsel said that during her closing

she assumed the role of Ms. Washington’s purported “alter ego,” Reecy, to highlight the

inconsistencies in the State’s case. Trial counsel believed it was an appropriate technique

“because of the importance that [Petitioner] gave to the fact that Ms. Washington had this

alter ego and the way that this dichotomy of personality caused her to shift from one person

to another.” She testified that she objected at certain points when the State argued on rebuttal

that her closing was “degrading” and “insulting,” but that she did not object to all such

comments because the State’s “comments were aimed at [her] rather than [Petitioner].” Trial

counsel testified that she did not “feel [the State’s rebuttal] was a personal attack on [her],”

but rather indicated that the State “wasn’t familiar with the type of closing that [she] was

doing.”

Regarding the weapon, trial counsel testified that the gun used to shoot Mr. Davis

“was not lost or stolen.” She recalled that she attempted to determine to whom the gun was

registered, but she was unsuccessful. Regardless, the ownership of the gun was not an issue

“because it wouldn’t have mattered who the gun belonged to” because “[t]he testimony was

going to be that [Petitioner] used it to shoot Mr. Davis and shoot at Ms. Washington.”

Likewise, trial counsel did not have the gun tested for fingerprints “[b]ecause everybody’s

hands had been on [it].”

Petitioner declined to testify at the post-conviction hearing.

II. Analysis

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A defendant is entitled to relief under the Post-Conviction Procedure Act when his

“conviction or sentence is void or voidable because of the abridgment of any right guaranteed

by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann.

§ 40-30-103. To be successful in his claim for post-conviction relief, Petitioner must prove

all factual allegations contained in his post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

On appeal, we conduct a de novo review of the post-conviction court’s findings of fact, but

we presume its findings are correct “unless the evidence preponderates against [them].”

Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see also State v. Burns, 6 S.W.3d 453, 461

(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). We do not “reweigh

or re-evaluate the evidence or substitute [our] own inferences for those drawn by the [postconviction] court. Furthermore, questions concerning the credibility of the witnesses, the

weight and value to be given their testimony, and the factual issues raised by the evidence

are to be resolved by the [post-conviction] judge.” Fields, 40 S.W.3d at 456 (citation

omitted). However, a claim of ineffective assistance of counsel is a mixed question of law

and fact, see Burns, 6 S.W.3d at 461, and we review the post-conviction court’s conclusions

of law, “such as whether counsel’s performance was deficient or whether that deficiency was

prejudicial,” purely de novo, “with no presumption of correctness,” Fields, 40 S.W.3d at 458.

A. Ineffective Assistance of Counsel

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The

petitioner must counter the strong presumption counsel’s conduct fell within the range of

reasonable professional assistance with which we must begin. See Strickland, 466 U.S. at

690. To establish deficient performance, the petitioner must show that counsel’s

performance was below “the range of competence demanded of attorneys in criminal cases.”

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner

mustshow that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

Moreover,

[b]ecause [the] petitioner must establish both prongs of the test, a failure to

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

-13-
on the ineffective assistance claim. Indeed, a court need not address the

components in any particular order or even address both if the [petitioner]

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

1. Questions and argument regarding post-arrest silence

As explained above, Petitioner asserted that he was the actual victim. He claimed that

Ms. Washington invited him to her house and that upon his arrival he was attacked by Ms.

Washington and Mr. Davis.

Petitioner chose not to tell anyone in law enforcement his version of the events until

he took the stand. There is no dispute that he did not wait for the police at the scene, nor did

he go directly to the police afterward. In fact, he did not see the police until he was in the

hospital where, both sides agree, he was unable to communicate. He was placed under arrest

at the hospital, but he was not questioned and, according to the record, was not informed of

his Miranda rights. He then withheld his version of the events until trial. The police never

came to him for an interview, and he did not go to the police requesting one. These facts are

largely undisputed.

As explained above, the defense’s theory was that Petitioner was the victim and that

the police conducted a sloppy, one-sided investigation. In laying out that theory, trial counsel

repeatedly asked the police whether they interviewed Petitioner in order to elicit that they had

never talked with him. Trial counsel called Sergeant Prewitt as a defense witness to make

that point. Furthermore, Petitioner himself testified to the same effect.

Responding to Petitioner’stheory, the State asked both Petitioner and Sergeant Prewitt

whether Petitioner ever volunteered a statement. It did so to elicit the fact that Petitioner

never told anyone in law enforcement that he believed he was the victim of a crime, and was

thus wrongfully accused, until the day he took the witness stand at trial. At closing, the State

repeatedly argued that Petitioner’s silence between his arrest and trial indicated that his story

was not credible. Indeed, it asserted that Petitioner remained silent specifically so that the

State could not investigate his story because he knew it was false. Trial counsel did not

object as the State elicited this testimony and made these closing arguments.

Petitioner claims trial counsel’s decision to not object to either the State’s questioning

or its closing rendered her ineffective because he had a constitutional right to remain silent

and to not have that silence held against him. In particular, Petitioner contends that counsel

-14-
should have objected during the following cross-examination exchange between the State

and Sergeant Prewitt, whom the defense called as a witness as a part of its case:

Q. You’ve already told [trial counsel] that you could not get a statement

from [Petitioner]; is that correct?

A. Correct.

Q. Once a defendant is charged with a crime and has a lawyer can you go

talk to him?

A. Not unless he wants to talk to us.

Q. Has [Petitioner] ever called you and told you he wanted to talk to you?

A. No.

Q. Has [Petitioner] ever called you or anybody in your office and told you

that he wanted to give you his version of what happened?

A. No.

Petitioner also points to a number of the State’s questions to him during cross-examination

as being impermissible for impeachment. For example, Petitioner complains that trial

counsel should have objected during this exchange:

Q. [Petitioner], how many times have you been in this court?

A. You know, several times.

Q. How many?

A. Approximately five, maybe six.

Q. Now you told the jury that you never told anybody in law enforcement

that somebody tried to kill you; is that correct?

A. I said I never told those officers somebody tried to kill me.

Q. You never picked up a phone after you were well to call any police

officers to say, look, I need to tell you what happened on May 18, 2002,

these folks attacked me. You never did that, did you?

A. No. Reason being, I was already charged for — I automatically

assumed they done charged me. I automatically assumed that this is

going to have to come out in court. And, you know, you automatically

assumed that if they’d come interviewed and you already charged with

a crime, you know, you just assume that, hey, the police is going to

believe their side and not yours. It’s just a common assumption.

Similarly, Petitioner contends counsel should have objected to several statements the State

made during its closing argument. While there are many specific statements about which

Petitioner complains, the following illustrates the nature of the complaint:

-15-
And I emphasize it and I put it in bold writing, that he never in told

anybody that ridiculous tale until he told you yesterday, eighteen months after

this shooting took place. I asked [Petitioner] yesterday . . . how many times

have you been in this courtroom? How many times you have told anybody in

law enforcement this ridiculous theory about how you’re trying to protect

yourself from Teresa Washington and James Davis. How many times? Zero.

How many times have you told me . . . that you need to look into this

because this ain’t right, these folks are trying to railroad me. I’m defending

myself. . . .

If at any point in the past six hundred and twenty-two days or whatever

it’s been now that he has been in custody, charged with trying to kill two

people, if he thought any of that was true, he could have had that investigated

by some law enforcement agency if he wanted to. He did not want it

investigated because he knew it was not the truth. He knew it was not justice.

For the same reasons he fled . . . are the same reason why he withheld this

information from law enforcement because he knows it is not the truth. So he

comes to court and he takes one shot, roll of the dice, let me, let me throw it

out there one time, drop it on the jury. And let me see if I can get at least one

juror to say, well, maybe he’s telling the truth. And that’s why he waited until

January 28th, 2004, to tell somebody about this ridiculous self-defense

argument.

We agree with the post-conviction court that trial counsel’s decision to not object did

not render her assistance ineffective.

Petitioner is correct that he had the right to remain silent. U.S. Const. amend. V;

Miranda v. Arizona, 384 U.S. 436 (1966). However, “[o]nce a defendant decides to testify,”

he “cast[s] aside his cloak of silence,” and the Fifth Amendment allows him to be subjected

to at least some degree of impeachment based on his prior silence. Jenkins v. Anderson, 447

U.S. 231, 238 (1980). Thus, the Fifth Amendment permits a defendant to be impeached “by

use of prearrest silence.” Id. at 240. Generally, a defendant may not be impeached based on

his silence after he was given a Miranda warning. See Doyle v. Ohio, 426 U.S. 610, 619-20

(1976). Doyle reasoned that when a defendant receives a Miranda warning, the government

induces, or at least arguably induces, subsequent silence. See id. at 617-19. Inducement is

not present when the government has arrested an individual but not yet informed him of his

Miranda rights. See Fletcher v. Weir, 455 U.S. 603, 605-07 (1982) (per curiam).

Consequently, it does not violate due process to allow the State to impeach a defendant with

evidence of post-arrest, but pre-Miranda warning, silence. Id. at 606-07.

-16-
These United States Supreme Court decisions provide the outer boundary of

permissible impeachment allowed by the Fifth Amendment. As Jenkins notes, “[e]ach

jurisdiction may formulate its own rules of evidence to determine when prior silence is so

inconsistent with present statements that impeachment by reference to such silence is

probative.” 447 U.S. at 239.

Prior to Doyle, Jenkins, and Weir, our supreme court addressed the issue of

impeaching a defendant with his prior silence in Braden v. State, 534 S.W.2d 657 (Tenn.

1976). In Braden, the court explained that in order to “strike a balance between protecting

the self-incrimination bar of the Fifth Amendment and allowing full testing of the truth of

defendant’s trial testimony . . . evidence of pretrial silence of the defendant must be admitted

with caution and then only where such silence is patently inconsistent with defendant’s

testimony.” Id. at 660. Thus, evidence elicited for “the impeaching effect of any prior

inconsistent actions” by the defendant, including prior silence, could be elicited in certain

circumstances. Id.

The Braden rule was obviously limited by the Doyle line of cases. But as this court

explained in State v. Chris Haire, “Braden’s‘patently inconsistent’ qualification isstill viable

in the factual context [of post-arrest, pre-Miranda warning silence].” No. E2000-01636-

CCA-R3-CD, 2002 WL 83604, at *15 (Tenn. Crim. App. at Knoxville, Jan. 22, 2002). “The

result is that Tennessee restricts impeachment use of a defendant’s post-arrest silence that

precedes Miranda warnings to those situations wherein it is patently or blatantly inconsistent

with trial testimony.” Id.; see also State v. Jonathan D. Rosenbalm, No. E2002-00324-CCAR3-CD, 2002 WL 31746708, at *5-6 (Tenn. Crim. App. at Knoxville, Dec. 9, 2002).

Although there is a paucity of Tennessee cases demonstrating the types of situations

in which the State can use a defendant’s silence for impeachment, several cases from other

jurisdictions provide useful illustrations. In State v. Cockrell, for instance, the Wisconsin

Court of Appeals dealt with a defendant who was convicted of shooting someone in a car that

had pulled up next to him at a McDonald’s drive-through. 741 N.W.2d 267, 269 (Wis. Ct.

App. 2007). When Cockrell turned himself in to the police, he told them about his history

with the victim. Id. However, he refused to speak to the officers about the incident itself

until he had counsel. Id. He remained silent until trial, when he testified that he acted in

self-defense, claiming that the victim pointed a gun at him first. See id. at 269-70. Cockrell

also testified that he refused to tell the police about the incident without counsel “because

things can be misinterpreted or written down incorrectly.” Id. at 270. On cross-examination,

the state attempted to impeach Cockrell’s testimony by questioning him about his previous

silence. Id. On appeal, Cockrell challenged the state’s questions as a violation of his right

to remain silent. Id. The court explained that there are several situations in which the state’s

use of a defendant’s post-Miranda silence for impeachment is not a violation of due process.

-17-
See id. at 270-72. For instance, the state may do so “where the defendant’s testimony

conveys that he or she cooperated with the police,” “where the defendant volunteered on

direct his reason for not telling the police his version of the crime,” and “where the defendant

testified that he attempted to tell the officers what happened but they would not let him

speak.” Id. at 271-72. The court concluded that the state’s use of Cockrell’s post-Miranda

silence was not “fundamentally unfair” because he “initiated the topic of why he chose to

remain silent [and] his explanation put him in a better position than had he not mentioned the

reason.” Id. at 275. Moreover, the state’s use of Cockrell’s silence was limited to

impeaching his explanation, the state did not equate that silence to guilt. See id. at 275-76.

The court’s reasoning in Cockrell is similar to that in United States ex rel. Saulsbury

v. Greer, 702 F.2d 651 (7th Cir. 1983). There, the court explained that

Once [a] reason [for the defendant’s prior silence] was solicited upon direct

examination it was not fundamentally unfair for the prosecution, upon crossexamination, to attack the credibility of that explanation by eliciting testimony

that the defendant had failed to come forward with his exculpatory explanation

long after the Miranda warnings and after circumstances had made the need for

such an explanation, if it existed, far more compelling.

Id. at 655-56. Because the defendant had “ventured” so far as to give an explanation for his

silence, he “could not erect a constitutional barrier against the state exploring the soundness

of that explanation by measuring it against the defendant’s subsequent failure to assert it”

earlier. Id. at 656.

In State v. Alo, the court likewise found that the state could impeach a defendant’s

exculpatory version of the facts by reference to his prior silence. 558 P.2d 1012 (Haw.

1976). There, Alo was charged with attempted murder after his girlfriend claimed that he

beat her, drove her to a secluded area, shot her, and left. Id. at 1013-14. The victim survived

and immediately reported the crime. Id. at 1014. The police quickly found Alo walking

toward his apartment. Id. While he declined to give a statement at the police station, at trial

Alo claimed that he told the officer that stopped him that he had been on a walk when the

incident occurred. Id. at 1014-15. On cross-examination, the state elicited testimony that

Alo had not told the police his version of the events when he was at the station. Id. at 1015.

On appeal, the court explained that “the prosecution was not bound to accept as true the

defendant’s testimony on direct examination” and it “had the right to determine whether and

exactly to whom the defendant was supposed to have given his exculpatory version.” Id.

Such questions “were a natural and logical sequel to the defendant’s testimony,” and

therefore were “not calculated to penalize the defendant for his silence.” Id. at 1016.

-18-
As these cases make clear, the law does not exclude evidence of a defendant’s silence

“so that the defendant may freely and falsely create the impression that he has cooperated

with the police when, in fact, he has not.” United States v. Fairchild, 505 F.2d 1378, 1383

(5th Cir. 1975). Even if exclusion of such evidence is ordinarily required by due process,

once the defendant broaches the subject of his cooperation or explains his silence, “the bar

[is] lowered and he discard[s] the shield which the law had created to protect him.” Id.

In the present case, the post-conviction court concluded that counsel’s decision to

refrain from objecting was not deficient because the questions did not intrude on Petitioner’s

Fifth Amendment rights. In other words, an objection to the State’s questions about

Petitioner’s post-arrest silence would have been overruled. The court concluded that

Petitioner’s decision to remain silent and not tell law enforcement his version of the events

was not deficient because Petitioner’s silence “was patently or blatantly inconsistent with his

trial testimony,” and thus proper fodder for impeachment. It also explained that the questions

were valid because Petitioner opened the door to the State’s line of attack. Indeed, it credited

trial counsel’s testimony that Petitioner waived his Fifth Amendment right to silence, and the

concomitant right to not have his silence held against him, by virtue of asserting his selfdefense-and-shoddy-investigation theory of the case.

We agree with the post-conviction court. We begin by noting that Petitioner does not

contend that the defense strategy of arguing that Petitioner was the actual victim and that law

enforcement conducted a shoddy investigation was somehow deficient. Nor does he

challenge the decision to call Sergeant Prewitt as a defense witness for the purpose of

eliciting that the police had not interviewed anyone other than the victims. These critical

points lead us to conclude that the post-conviction court did not err in crediting trial

counsel’s testimony that Petitioner waived his Fifth Amendment rights because “he wanted

to bring it out during the trial that he wasn’t being given an opportunity or had never been

given an opportunity to make a statement.”

Petitioner’s position thus appears to be that he is allowed to testify and present

evidence that, despite his desire to tell his side of the story, the police never gave him an

opportunity to make a statement; yet the State is not allowed to point out Petitioner’s

inconsistent behavior and the fact that he never made any effort to relay his version of the

events. This position goes too far. Petitioner tried to create the impression that he wanted

to cooperate but was thwarted by myopic investigators. As the court in Cockrell wrote, once

a defendant explains his silence, “his explanation put[s] him in a better position than had he

not mentioned the reason; it [is] not fundamentally unfair for the State on cross-examination

to attack the credibility of that explanation by eliciting the testimony that, even after there

was a compelling need for him to come forward with his self-defense version of the fight,

-19-
he did not.” 741 N.W.2d at 275 (citing Saulsbury, 702 F.2d at 655-56). In our view,

Petitioner opened the door to impeachment based upon his theory of the case.

Moreover, the record makes clear that Petitioner’s counsel brought up Petitioner’s

silence before the State ever asked any of the questions about which he now complains.

Specifically, during the direct examination of Sergeant Prewitt, who was called as a defense

witness to show that the police neglected to take statements from anyone other than the

victims, trial counsel asked:

Q. Did you take any other statements in this case?

A. No. . . . And [Petitioner] couldn’t [make a statement] either.

Q. He was unable to do it?

A. Yes.

Q. [Petitioner] was unable to make a statement to you?

A. Yes.

Q. At the hospital. Okay. At any other time did you attempt after

[Petitioner’s] release [from the hospital], did you attempt to take a

statement from him?

A. No.

Q. And so during the conduct of your investigation you never got

[Petitioner’s] side of what happened on [May 18, 2002] at 680

Glanker?

A. No.

Q. Okay. Ever?

A. No.

That line of questioning opened the door for the State’s cross-examination about whether

Petitioner ever made an affirmative effort to speak to law enforcement.

The same is true with respect to the State’s questions during Petitioner’s crossexamination. On direct examination, trial counsel opened the door by asking Petitioner:

Q. Were you ever offered a chance to make a statement to the police?

A. No, ma’am.

Q. And were you ever given an opportunity to request to make a statement

to the police?

A. No, ma’am.

Q. Okay. And why were you not given — why in your opinion do you

think you were not given a chance to make a statement to police?

-20-
A. Well, I always thought that if, that according to my experiences since

I’ve been down here, which has almost been two years, that it’s a

standard operating procedure for the police to come down and

interrogate a suspect once they get downtown. I’ve been down here for

going on two years and no officer made no attempt to come down and

interrogate me for nothing or get my opinion on nothing. My first time

being locked up for an offense like this period.

This statement invited the State’s cross-examination questions regarding whether Petitioner

affirmatively sought to make a statement. Counsel’s failure to object was not deficient

because the defense opened the door to such questions.

Finally, the defense’s strategy made any Fifth Amendment objection to the State’s

comments on Petitioner’s pre-trial silence meritless. As trial counsel explained, to assert

Petitioner’s self-defense-and-shoddy-investigation theory, Petitioner waived his Fifth

Amendment right to remain silent and to not have that silence held against him. The State’s

closing response to Petitioner’stheory therefore did not violate Petitioner’s Fifth Amendment

rights, and any objection to that effect would not have been sustained.

Petitioner asserts that, even if he did invite the State’s use of his post-arrest silence,

the State went far beyond using that silence for impeachment purposes and instead used it

to equate his silence with guilt. Petitioner cites this court’s decision in State v. Eric

Flemming, No. 01C01-9709-CR-00418, 1999 WL 20800 (Tenn. Crim. App. at Nashville,

Jan. 20, 1999), as support for his position. Flemming involved an aggravated robbery. Upon

arrest, Mr. Flemming claimed that he knew nothing of the crime except that he had heard the

name of the perpetrator. Id. at *5. Mr. Flemming stopped talking to the police “when it

became clear that they did not believe him.” Id. At trial, the State used Mr. Flemming’s

silence to argue that he refused to speak in order to make sure he did not tell a story that

police could prove was false. See id. at 11. This, we said, “was an obvious violation of [Mr.

Flemming’s] Fifth Amendment right to silence.” Id.

Although the State made similar “silence equatesto guilt” comments during its closing

in the present case, this case contains a subtle, but critical, difference. Whereas Mr.

Flemming asserted that he knew nothing about the crime other than the name he had heard,

Petitioner does not dispute that he shot Mr. Davis. Petitioner claims he was defending

himself as Ms. Washington and Mr. Davis attempted to murder him. The context of the two

cases is important. If Mr. Flemming’s credibility was impeached, it merely meant his

statement that he did not know anything about the crime other than the perpetrator’s name

cannot be believed. However, he could still assert that he did not actually commit the crime.

The implications for impeaching Petitioner’s testimony about his version of events are much

-21-
different. As we have noted, Petitioner admitted that he shot Mr. Davis. The only question

was why. Petitioner testified that he acted in self-defense. But if the State impeached the

credibility of Petitioner’s claim that he was attacked, then the self-defense theory collapses.

In Flemming, the jumps from (1) silence to (2) discrediting Mr. Flemming’s statement that

he knew nothing about the crime to (3) guilt are too big. But in Petitioner’s case, it is only

logical that if his statement that he was attacked cannot be believed, then there is no legal

justification for shooting Mr. Davis.

Petitioner’s ineffective assistance of counsel claims concerning his Fifth Amendment

right to silence fail.

2. Prosecutor misconduct

Petitioner next contends that trial counsel was ineffective for failing to object to

several episodes of alleged prosecutorial misconduct during the State’s closing arguments.

He relies upon this court’s decision in State v. Goltz, in which we outlined “five general

areas of prosecutorial misconduct” that can occur during closing argument: (1) intentionally

misleading or misstating the evidence; (2) expressing a personal belief or opinion as to the

truth or falsity of the evidence or defendant’s guilty; (3) making statements calculated to

inflame the passions or prejudices of the jury; (4) injecting broader issues than the guilt or

innocence of the accused; and (5) intentionally referring to or arguing facts outside the record

that are not matters of common public knowledge. 111 S.W.3d 1, 6 (Tenn. Crim. App.

2003). In addition, he notes that “[t]he prosecution is not permitted to reflect unfavorably

upon defense counsel or the trial tactics employed during the course of the trial.” State v.

Gann, 251 S.W.3d 446, 460 (Tenn. Crim. App. 2007). Petitioner contends that the State

violated several of these principles at various times during its closing argument.

Petitioner first contends the State crossed the line by reminding the jury that it “took

an oath that if the State of Tennessee presented proof . . . beyond a reasonable doubt that the

defendant attempted to kill [the victims] . . . [the jury] would . . . find the defendant guilty,”

and then later asserting a guilty verdict “is the verdict that truth dictates and that justice

demands and any other verdict would be a violation of the oath that [the jurors] took to return

a true verdict.” Petitioner claims the State’s argument expressed a personal belief or opinion

as to the truth or falsity of the evidence of Petitioner’s guilt, made statements calculated to

inflame the passions or prejudices of the jury, and intentionally referred to or argued facts

outside the record that are not matters of common public knowledge, all in violation of Gotlz,

and thus counsel should have objected. See 111 S.W.3d at 6.

We disagree. Nothing in the passage quoted above expresses the prosecutor’s

“personal belief or opinion.” Goltz, 111 S.W.3d at 6 (emphasis added). We read these

-22-
statements as counsel’s articulation of the State’s position. Nor do we read the statement as

one designed to inflame the passions or prejudices of the jury or injecting broader issues into

the trial. It simply reminded the jury of its oath and asserted the State’s position that it had

met its burden, thereby necessitating, in the State’s view, a guilty verdict.

Six other passages to which Petitioner points are more disturbing. Those passages are

as follows:

How many times have you told me, [Petitioner], that you need to look

into this because this ain’t right, these folks are trying to railroad me. I’m

defending myself. . . . [Petitioner] went, well that’s not [the prosecutor’s] job.

You’re trying to convict me. I don’t take an oath to convict anybody. I don’t

take an oath to convict [Petitioner] or any defendant ever of any crime. The

oath that I took before I became a prosecutor was to seek truth and justice.

Truth and justice. It would be unethical for me as a prosecutor to present facts

to you that I don’t believe are factually based, there’s a factual basis for that.

It would be unethical for me to continue to prosecute a case in which I don’t

believe there’s some good-faith basis.

****

This defendant is guilty. [Trial counsel] has a job to zealously represent

her client. That’s the oath she takes as a defense lawyer. To zealously

represent her client. I don’t take an oath to zealously represent the people of

the State of Tennessee. I don’t take an oath to zealously represent the people

of Shelby County, Tennessee. I take an oath to seek truth and justice.

 

I don’t represent the government. I represent the people of the State of

Tennessee. I represent the State of Tennessee, not the government. I represent

specifically people here in Shelby County, Tennessee. So when people stand

up and start telling you that [the prosecutor] represents the government, I don’t

know what government that is. I represent you, your neighbor, your loved

ones, people in this community, that’s who I represent.

** **

If the truth is [Petitioner] is not guilty based on the proof that I’ve

submitted to you, that the State of Tennessee has presented in court, it is my

oath, my duty, my obligations to stand before you and say, ladies and

gentlemen of the jury, I haven’t proven this case. I can’t ask you to find

[Petitioner] guilty. That would be wrong. It’s a violation of my ethical duties

in order for me to stand here and tell you to find this man guilty if there is no

facts to prove him guilty.

 

-23-
[Petitioner] is still in jail six hundred and twenty-two plus days because

that’s where he deserves to be. He is still in jail and not running free on bond

because he is a danger to this community. He is in jail for six hundred and

twenty-two some-odd days because he is a threat to kill somebody. Judge

Bennett was not fooled by anybody when Judge Bennett made the decision to

revoke this defendant’s bond and to keep him in jail. And for some lawyer to

stand up here and tell you that this judge has been fooled is absolutely,

absolutely an insult. And you should all be offended by those statements from

[trial counsel].

[Petitioner] is in jail for six hundred and twenty-two days because he

deserves to be in jail, not for six hundred and twenty-two days but for a lot

longer than six hundred and twenty-two days.

** **

[Trial counsel] tells you that Teresa Washington fooled the Judge when

she testified at a bond hearing on [Petitioner]. That’s insulting. This judge,

Judge Bennett, has been in this business for longer than he would like to count.

He’s been the only judge in this court since 1976 or 1977. Ms. Hailey will tell

you that Ms. Washington fooled the Judge. That is absolutely insulting.

It is true that prosecutors have an obligation to seek truth and justice. See State v.

David Lynn Jordan, No. W2007-01272-SC-DDT-DD, __ S.W.3d __, 2010 WL 3668513, at

*51 (Tenn. Sept. 22, 2010) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). But

the prosecutor’s statements quoted above combine to form a troubling theme: that the

prosecutor, who represents the jurors, their families, and their friends, and who is ethically

obligated to seek only “truth and justice” and withdraw the case if the evidence is

insufficient, believes Petitioner is guilty; Petitioner’s defense attorney, on the other hand,

who is only obliged to “zealous represent her client” and is not obliged to seek truth and

justice, has insulted the jury; and the trial judge, whom the jury should see as neutral arbiter

of the law, agrees that Petitioner is guilty. That is the underlying message of these

statements.

Petitioner asserts that trial counsel should have objected to these statements as

violations of the principles articulated in Goltz and Gann. The record reflects that trial

counsel did object to portions of the State’s closing. In particular, the defense argued that

the State improperly implied that the defense attorneys were not obliged to seek truth and

justice but were instead permitted to present a version they knew to be false. The objection

was noted, but overruled. However, when counsel was asked why she did not object to each

individual statement, counsel said that she did not believe the objections were necessary or

would be well-taken or that she was contemplating which objection to raise. The post-

-24-
conviction court concluded that the statements were not improper because the prosecution

was responding to Petitioner’s assertion from the witness stand that he did not tell the

prosecutor his version of the story because the prosecutor was only interested in convicting

him and because, in the context of this “hard-fought” case, the statements were not out of

line.

While we agree that the prosecutor’s statements are dangerously close to the lines

staked out by Goltz and Gann, we do not believe counsel’s conduct amounts to ineffective

assistance warranting relief. Regardless, Petitioner has not established prejudice. As a

result, it is unnecessary to determine whether the fact that counsel made only a few

objections to the State’s closing satisfies the deficiency prong of the Strickland analysis.

Our supreme court has recently reminded the bar “that closing arguments must be (1)

temperate; (2) predicated on the evidence adduced at trial; and (3) pertinent to the issues.”

Jordan, No. W2007-01272-SC-DDT-DD, __ S.W.3d __, 2010 WL 3668513, at *51 (Tenn.

Sept. 22, 2010). The court added that “because a prosecutor’s role is to seek justice rather

than simply advocate, the State’s prerogative during argument is more limited than that of

other parties.” Id. Yet, because “[c]losing arguments are an important tool for both parties

during the trial process . . . attorneys are usually given wide latitude in the scope of their

arguments” and “[t]rial courts are accorded wide discretion in their control of those

arguments.” State v. Berry, 141 S.W.3d 549, 586 (Tenn. 2004). Given the trial court’s tepid

reaction to the defense’s objections at closing, we think it unlikely the trial court would have

sustained additional objections. Consequently, Petitioner would have to clearly establish that

the statements “affected the verdict to [his] prejudice.” Id. (quotation marks omitted); see

also Goltz, 111 S.W.3d at 5; State v. Middlebrooks, 995 S.W.2d 550, 560 (Tenn. 1999).

We consider five factors in evaluating whether prosecutorial misconduct during

closing justifies reversing the verdict:

1) the conduct complained of, viewed in light of the facts and circumstances

of the case; 2) the curative measures undertaken by the court and the

prosecution; 3) the intent of the prosecutor in making the improper arguments;

4) the cumulative effect of the improper conduct and any other errors in the

record; and 5) the relative strength and weakness of the case.

Berry, 141 S.W.3d at 586; see also Jordan, No. W2007-01272-SC-DDT-DD, __ S.W.3d __,

2010 WL 3668513, at *51-52. We conclude that these factors would not have weighed in

favor of reversing Petitioner’s conviction. We agree with the post-conviction court that the

record indicates that the State’s comments came in the midst of a “hard-fought” case.

Moreover, the comments were partly in response to Petitioner’s testimony that he did not tell

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the prosecutor his version of the story because the prosecutor’s job was to convict him. The

1

first factor is thus neutral. Factors (2) and (3) weigh in favor of the Petitioner because the

trial court took no curative measures specifically tailored to counter the statements and the

prosecutor’s motive for making them appears to have been to combat defense counsel’s

theory of the case by boosting the jury’s faith in the prosecutor’s version of events. But

2

even though these factors weigh somewhat in Petitioner’s favor, they are outweighed by the

remaining two. We do not believe the cumulative effect of these statements and any other

errors in the record caused the jury to lose sight of its duty. Moreover, the evidence against

Petitioner was devastating. Each of the two victims, one of whom had been shot in the chest,

testified that Petitioner came to Ms. Washington’s house with a gun and shot Mr. Davis,

disputing Petitioner’s self-defense claim. They immediately told their story to the police and

did so at separate times, without the opportunity to communicate beforehand. Petitioner’s

self-defense argument was discredited when Petitioner was impeached with his failure to tell

anyone in law enforcement his version of the story. The prosecutor’s closing statements at

issue did not concern those facts. Thus, we conclude the statements were superfluous to the

jury’s ultimate conclusion, which it made in light of the overwhelming evidence of

Petitioner’s guilt. Consequently, we do not believe Petitioner has established that he was

prejudiced by counsel’s failure to object to the prosecutor’s statements.

The next set of statements that Petitioner contends were improper and warranted an

objection involved the State’s commentary on trial counsel’s closing argument. As noted

above, trial counsel acknowledged at the post-conviction hearing that her closing argument

was “novel.” As we explained, during the closing, trial counsel told the story of the case

from the perspective of Ms. Washington’s purported alter ego, Reecy. In rebuttal, the State

dismissed trial counsel’s closing as a “comedy routine” that was “degrading” and “insulting.”

In that regard, the State’s comments appear to be like those in Jordan, where the State attempted

1

to “strike back” at the defense’s argument. See No. W2007-01272-SC-DDT-DD, __ S.W.3d __, 2010 WL

3668513, at *52. As the supreme court explained in Jordan, “[w]hile the prosecutor reached too far in his

argument, it appears that the prosecutor was at least trying to place his argument in some overall context

triggered by the argument of defense counsel.” Id.

Again, Jordan isinstructive. It reminds the bar “that it isincumbent upon defense counsel to object 2

contemporaneously whenever it deems the prosecution to be making improper argument,” so that the trial

court has the opportunity to evaluate the argument and take any curative measures it deems necessary. No.

W2007-01272-SC-DDT-DD, __ S.W.3d __, 2010 WL 3668513, at *44. The court warned that failure to do

so waives the issue. Id. However, the court also noted that even absent an objection, the trial court “may

intervene sua sponte when prosecutorial argument is clearly improper.” Id. at 44 n.14. 

We also note that, as in Jordan, the trial court in this case gave the jury a general instruction that

counsels’ arguments are not evidence and should be disregarded if they contradict the jurors’ recollection

of the evidence. See id. at *53.

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Petitioner, citing Gann, asserts that the State’s commentary improperly attacked counsel and

her tactics.

The post-conviction court concluded that trial counsel was not deficient because these

statements were not improper personal attacks. Instead, the comments responded to trial

counsel’s unique closing and focused on the defense’s theory of the case.

We agree with the post-conviction court’s conclusion. We read these statements to

be comments upon the defense’s theory, rather than personal comments about trial counsel.

Trial counsel testified at the post-conviction hearing that she had the same reaction to the

statements. We thus conclude that the Berry factors counsel the same conclusion as we

reached above. See 141 S.W.3d at 586.

The final set of comments to which, Petitioner contends, trial counsel should have

objected concerned Petitioner’s burden of proof. The two statements about which Petitioner

complains are as follows:

If at any point [Petitioner] thought any of this was true, and he doesn’t have to

prove anything because that’s the State’s burden, but once he starts presenting

facts to you, you have the same obligation to view what he tells you as you do

in what the State presents. If he presents something to you, if he chooses to,

it’s his obligation to prove to you that it’s true. It is not the State’s obligation

to prove to you that it’s not true. He made that choice to put that ridiculous

self-defense argument before you. It’s his obligation to prove that’s true.

****

What you’ve heard in court absolutely from [Petitioner] — and I’ll state again,

[Petitioner] does not have to present any proof. He doesn’t have to prove

anything. But once he takes the stand and tells you something, he presents that

proof, it is absolutely his obligation to convince you that what he is saying is

correct. It’s his obligation to convince you that he is credible. It’s his

obligation to convince you that he is a truth teller.

Petitioner contends that such statements improperly indicate that Petitioner bears the burden

of proof in his self-defense claim. See State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim.

App. 1996) (noting that the State “has the burden of proving beyond a reasonable doubt that

the defendant did not act in self-defense”). As a result, Petitioner argues, counsel was

deficient for not objecting.

We are not persuaded. The State repeatedly stated that Petitioner was presumed

innocent and did not have to prove anything. The State also accurately noted that Petitioner

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bore the burden of persuading the jury that he was credible. See, e.g., 7 Tenn. Prac. Pattern

Jury Instr. T.P.I. – Crim. 42.04. Counsel was therefore not deficient in withholding an

objection.

After a thorough review, we conclude that, as the post-conviction court commented,

the case was hard-fought. Parts of the State’s closing may have been inappropriate, but

Petitioner is not entitled to relief. The statements either did not warrant further objection or

do not provide a basis for finding prejudice.

3. Fingerprint evidence

Petitioner contends that trial counsel was deficient for failing to seek fingerprint

evidence on the magazine and unfired bullet in the .380 handgun used to shoot Mr. Davis.

However, Petitioner has failed to present any evidence to show that there were any

fingerprints on the magazine or bullet, let alone that such prints would have helped his

defense. As Petitioner correctly notes, “[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.” Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990). That is true in cases concerning possible fingerprint evidence.

See Edward R. Forester v. State, No. E2005-01922-CCA-R3-PC, 2006 WL 2706150, at *8

(Tenn. Crim. App. at Knoxville, Sept. 21, 2006). Petitioner failed to present an expert to

testify about what fingerprints were present on the magazine or unfired bullet. Indeed, it is

not at all clear there even were any fingerprints to be found. Petitioner has thus failed to

demonstrate prejudice.

Petitioner has failed to establish that he is entitled to relief on any of his ineffective

assistance of counsel claims.

B. Sentencing

Petitioner’s final argument is that the trial court improperly enhanced his sentence

based upon facts found by the court rather than the jury. This, he argues, ran afoul of the jury

trial protections in the Sixth Amendment to the United States Constitution as articulated by

the United States Supreme Court in Blakely.

Petitioner raised the same issue in his direct appeal. See Morris, No. W2004-02277-

CCA-MR3-CD, 2005 WL 6235723, at *8-9. We held that Petitioner’s Blakely claim failed

because, according to our supreme court’s analysis in the then-controlling case of Gomez I,

Tennessee’s sentencing regime was unaffected by Blakely. See id. at *9.

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The United States Supreme Court reversed the decision in Gomez I in light of

Cunningham v. California, 549 U.S. 270 (2007), and remanded the case to our supreme court

for reconsideration. On remand, our supreme court acknowledged that “the Reform Act

failed to satisfy the Sixth Amendment insofar as it allowed a presumptive sentence to be

enhanced based on judicially determined facts.” State v. Gomez, 239 S.W.3d 733, 740

(Tenn. 2007) (Gomez II). It held that “to the extent the Reform Act permitted enhancement

based on judicially determined facts other than the fact of a prior conviction, it violated the

Sixth Amendment as interpreted by the Supreme Court in Apprendi [v. New Jersey, 530 U.S.

466 (2000)], Blakely, and Cunningham.” Id.

Although this court ruled that Petitioner’s direct appeal Blakely challenge was

governed by Gomez I and did not merit relief, Petitioner cannot now revive that issue on

collateral review. Because Blakely concerns a federal issue, the final arbiter of the governing

law is the United States Supreme Court, not our state courts. Consequently, even though

Petitioner “might arguably have been mislead” by Gomez I, his avenue for Blakely relief was

to continue to press the claim on direct appeal through our supreme court and to the United

States Supreme Court. State v. Christine H. Osborne, No. M2006-01301-CCA-R3-CD, 2008

WL 1822443, at *5 (Tenn. Crim. App. at Nashville, Apr. 23, 2008); see also State v. Mitchell

Richardson, No. E2006-01580-CCA-R3-CD, 2008 WL 2037274, at *11 (Tenn. Crim. App.

at Knoxville, May 13, 2008) (“[T]he United States Supreme Court, rather than the Tennessee

Supreme Court, is the final arbiter of questions concerning the federal constitution, and the

defendants’ Blakely claim should have been raised . . . Gomez I notwithstanding.”).

Because Blakely was issued before Petitioner’s direct appeal was final, it cannot form

the basis for a claim for relief grounded in a newly-recognized constitutional right. See

Tenn. Code Ann. § 40-30-106(g)(1). Petitioner seeks “retroactive” relief from Cunningham.

But section 106(g) bars relief on that ground as well. As we have repeatedly said, neither

Blakely, nor Cunningham, nor Gomez II announced a new rule of law. See, e.g., Christopher

N. Orlando v. State, No. M2008-01621-CCA-R3-PC, 2010 WL 10967, at *3 (Tenn. Crim.

App. at Nashville, Jan. 4, 2010). The “new rule” was recognized in Apprendi; Blakely and

the like merely clarified that rule. See Bobby Taylor v. State, No. M2008-00335-CCA-R3-

PC, 2009 WL 2047331, at *2 (Tenn. Crim. App. at Nashville, July 14, 2009), perm. to appeal

denied, (Tenn. 2009). Apprendi, like Blakely, had been decided at the time of Petitioner’s

direct appeal; his avenue for relief was on direct appeal. See Tenn. Code Ann. § 40-30-

106(g); see also Anwar Proby v. State, No. W2008-00700-CCA-R3-PC, 2008 WL 4756678,

*2 (Tenn. Crim. App. at Jackson, Oct. 27, 2008). Consequently, the rule was available to

Petitioner on direct appeal, and section 106(g) bars Petitioner’s requested relief.

Petitioner correctly notes that Danforth v. Minnesota held that the states are no longer

required to apply the Teague v. Lane, 489 U.S. 288 (1989), analysis when determining

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whether to give retroactive effect to a new federal rule of law. See 552 U.S. 264, 290-91

(2008). It is also true that this court has applied the Teague analysis when determining

retroactivity of the Apprendi line of cases. See, e.g., Donald Branch v. State, No. W2003-

03042-CCA-R3-PC, 2004 WL 2996894, at *9-10 (Tenn. Crim. App. at Jackson, Dec. 21,

2004). Given our analysis above, Danforth is unhelpful because Petitioner does not meet the

exception for new rules that is codified in section 106(g)(1). Nevertheless, to the extent

Teague effects our analysis of whether Cunningham or Gomez II announced a new rule, we

applied Teague because we were instructed to do so by our supreme court. See Meadows v.

State, 849 S.W.2d 748, 754 (Tenn. 1993) (“[S]tates are bound by federal retroactivity

analysis when a new federal rule is involved.”). Despite Danforth’s holding, we are bound

to follow our supreme court’s directive in Meadows as to the retroactivity analysis applied

to new federal rules until it decides otherwise. See State v. Irick, 906 S.W.2d 440, 443

(Tenn. 1995).

III. Conclusion

After a thorough review, we affirm the judgment of the post-conviction court.

_________________________________

NORMA McGEE OGLE, JUDGE

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