IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 15, 2023

STEPHEN D. DEMPS v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Putnam County

No. 2014-CR-436 Gary McKenzie, Judge

No. M2022-01429-CCA-R3-PC

A Putnam County jury convicted the Petitioner, Stephen D. Demps, of four counts of 

aggravated sexual battery and five counts of rape of a child. The trial court sentenced him 

to twenty-five years of incarceration. The Petitioner appealed his convictions to this court, 

and we affirmed the judgments. State v. Demps, No. M2017-00641-CCA-R3-CD, 2018 

Tenn. Crim. App. LEXIS 156, at *1 (Tenn. Crim. App. Feb. 27, 2018), no perm. app. filed. 

Subsequently, the Petitioner filed a petition for post-conviction relief, claiming that he 

received the ineffective assistance of counsel, that law enforcement altered evidence, and 

that the State committed prosecutorial misconduct. The post-conviction court denied the 

petition after a hearing. After review, we affirm the post-conviction court’s judgment.

 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.

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

Gordon A. Byars, Cookeville, Tennessee, for the appellant, Stephen D. Demps.

Jonathan Skrmetti, Attorney General and Reporter; Jonathan H. Wardle, Senior Assistant 

Attorney General; Bryant C. Dunaway, District Attorney General; and Beth E. Willis, 

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

OPINION

I. Facts and Background

This case arises from the Petitioner’s sexual abuse of the victim, a twelve-year-old 

girl and the Petitioner’s great-niece. For this conduct, a Putnam County grand jury indicted 

the Petitioner with five counts of rape of a child and five counts of aggravated sexual 

battery. Demps, 2018 Tenn. Crim. App. LEXIS 156, at *1.

11/09/2023
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A. Trial

The following is this court’s summary on direct appeal of the facts presented at 

pretrial hearings and the Petitioner’s trial:

Detective Roger Cooper testified that he had worked for the Putman 

County Sheriff’s Department (“PCSD”) for over seventeen years. In 

December 2013, Detective Cooper investigated [the victim’s] complaint 

against the [the Petitioner], [the victim’s] great-uncle. On December 20, 

2013, Detective Cooper called the [Petitioner] and asked him to come to the 

PCSD for an interview (“the December interview”). The next day, the 

[Petitioner] and his wife, [], came to the PCSD to speak with Detective 

Cooper. Detective Cooper did not inform the [Petitioner] of [the victim’s]

allegations prior to the interview. Detective Cooper stated that, during the 

December interview, the [Petitioner] “didn’t admit to what was being 

alleged, but did talk about some inappropriate contact.” Detective Cooper 

made a video recording of the December interview. Detective Cooper did 

not tell the [Petitioner] that he was under arrest or that he could not leave the 

PCSD, and the [Petitioner] left at the end of the December interview. On 

January 14, 2014, Detective Cooper went to the [Petitioner’s] residence to 

interview the [Petitioner] again (“the January interview”). Detective Cooper 

did not alert the [Petitioner] or [his wife] that he was coming to interview the 

[Petitioner]. [The Petitioner’s wife] invited Detective Cooper to come inside 

the residence after he knocked on the door and introduced himself. Detective 

Cooper made an audio recording of the January interview with the 

[Petitioner].

On cross-examination, Detective Cooper testified that, during the 

December interview, the [Petitioner] stated that [the victim] had pushed up 

against him and that “he had pinched her on the boob to get her off of him .

. . when they would wrestle around.” Detective Cooper did not recall whether 

he informed the [Petitioner] that he recorded the December interview, but he 

stated that the video camera was visible in the corner of the interview room.

Detective Cooper did not inform the [Petitioner] of his Miranda rights at the 

December interview because the [Petitioner] was not under arrest.

Detective Cooper stated that he went to the [Petitioner’s] house in 

January to photograph the [Petitioner’s] basement, where [the victim] alleged 

the incidents had occurred. He agreed that his investigation was focused on 

the [Petitioner] based on [the victim’s] allegations. Regarding the January 

interview, Detective Cooper stated that the [Petitioner] was friendly and 

answered his questions. He stated that, if the [Petitioner] had asked him to 

leave the residence, he would have left. Detective Cooper explained that, 
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while he was in the [Petitioner’s] basement, the [Petitioner] voluntarily 

allowed him to look at the [Petitioner’s] computer files and search history.

Detective Cooper agreed that he mentioned religion to the [Petitioner] during 

the January interview, but he denied that he used the theme of religion to 

coerce a confession from the [Petitioner]. He explained that, after he 

observed that the [Petitioner’s] basement was unfinished and did not look 

like an area where [the victim] would have been wrestling with the 

[Petitioner], he asked the [Petitioner] more questions. Detective Cooper 

agreed that he told the [Petitioner] to do the “right thing” and discussed 

sexual urges with the [Petitioner].

. . . .

Detective Cooper testified that, in 2010, he became a detective for the 

PCSD in the Crimes Against Children Division. He explained that he worked 

with the Child Advocacy Center (“CAC”) in Cookeville. Detective Cooper 

stated that [the victim], her mother, and a family friend came to the PCSD on 

December 14, 2013, and filed a report; [the victim] was twelve years old at 

the time. [The victim] was interviewed at the CAC, and Detective Cooper 

observed this interview from another room. He then asked the [Petitioner]

to come to the PCSD for the December interview. The [Petitioner] and [his 

wife] came to the PCSD on December 20, 2013, and Detective Cooper 

interviewed the [Petitioner]. Detective Cooper went to the [Petitioner’s]

residence on January 14, 2014 to conduct a second interview. According to 

Detective Cooper, the [Petitioner] demonstrated his sexual contact with [the 

victim] in the basement during the second interview. Detective Cooper then 

asked the [Petitioner] if he had penetrated [the victim’s] vagina with his 

tongue. Detective Cooper explained that, based on his years of experience, 

he knew that the [Petitioner] was withholding information by not responding 

to or denying the allegation. Detective Cooper stated that the [Petitioner]

“had a look on his face of, like he was going to say something[,]” so 

Detective Cooper said that the [Petitioner’s] expression implied that the 

[Petitioner’s] answer was yes. Detective Cooper also asked the [Petitioner]

if he kissed [the victim’s] vagina, and the [Petitioner] nodded in the 

affirmative.

On cross-examination, Detective Cooper stated that, during her 

interview at the CAC, [the victim] said that the [Petitioner] touched her over 

her clothes. He explained that he never personally interviewed [the victim], 

but he spoke with [the victim’s] mother, [], about the allegations. Detective 

Cooper agreed that, after the [Petitioner] admitted he had sexual contact with 

[the victim], Detective Cooper asked the [Petitioner] if he felt guilty.

Detective Cooper stated that the [Petitioner] seemed remorseful and said he 
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was ashamed of his conduct but also deflected blame.

[The victim] testified that, in December 2013, she was twelve years 

old. She stated that she spent time at the [Petitioner’s] residence, including 

spending the night. [The victim] said that her siblings also went to the 

[Petitioner’s] residence, but she explained that sometimes she went by 

herself. The [Petitioner] and [his wife] also transported [the victim] to and 

from school on occasion. She explained that she liked to watch videos of 

hair and makeup tutorials on the computers in the [Petitioner’s] basement.

[The victim] stated that the [Petitioner] began touching her vagina with his 

fingers and mouth in the basement of his residence when she was eight years 

old. The [Petitioner] told her not to tell anyone about the touching. [The 

victim] explained that the [Petitioner] put his fingers and tongue inside her 

vagina and moved them around. She stated that she generally wore shorts 

and a T-shirt when the [Petitioner] penetrated her. She explained that she 

would be sitting at the computer, and the [Petitioner] would sit next to her 

and touch her. [The victim] stated that the [Petitioner] took off her shorts or 

made her stand in order to penetrate her. She also stated that the [Petitioner]

put his hand up her shirt and touched her breasts.

[The victim] described an incident that occurred in the living room of 

the [Petitioner’s] residence. She was sitting on the couch watching TV, and 

the [Petitioner] penetrated her vagina with his fingers and tongue. [The 

victim] testified regarding another incident that occurred after the [Petitioner]

and [his wife] went to dinner with [the victim] and her siblings at a Golden 

Corral restaurant. Earlier that day, [the victim] was in the basement of the 

[Petitioner’s] residence with the [Petitioner]. [The victim] stated that the 

[Petitioner] penetrated her vagina with his fingers and tongue. [The victim]

stated that, on the last occasion that her mother arranged for [the victim] to 

spend the night at the [Petitioner’s] residence, she cried and told her mother 

that she did not want to go. She testified that the [Petitioner] penetrated her 

on this occasion with his fingers and tongue. [The victim] estimated that the 

[Petitioner] penetrated her with his fingers and tongue at least thirty times.

[The victim] stated that, while the [Petitioner] was committing the 

offenses, her siblings were usually in the upstairs of the residence, and [his 

wife] was either upstairs or not in the residence. [The victim] stated that she 

told her neighbor, [], about the [Petitioner’s] conduct, and [the victim] then 

told her mother. She explained that she did not inform an adult of the abuse 

until she told [her neighbor] because she was scared and embarrassed. After 

[the victim] informed her mother of the [Petitioner’s] offenses, [the victim]

and her mother went to the PCSD and spoke with a deputy. Later, [the 

victim] spoke with a woman at the CAC. [The victim] admitted that she did 
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not tell the woman at the CAC all the facts about the [Petitioner’s] offenses; 

[the victim] told the woman that the [Petitioner] had touched her on the 

outside of her clothing because she was embarrassed and believed that she 

would get into trouble.

Demps, at *7-12. Based on this evidence, the jury convicted the Petitioner of five counts 

of rape of a child and four counts of aggravated sexual battery. The trial court merged 

counts six and eight, aggravated sexual battery, into counts two and four, rape of a child.

The Petitioner received a total effective sentence of twenty-five years of incarceration. Id.

B. Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief alleging that he had received 

the ineffective assistance of counsel, that police had altered the audio recording of his 

interview before it was played at trial, and that the prosecutor helped the victim lie during 

her testimony. 

The following evidence was presented at a hearing on the petition: The Petitioner 

testified that Detective Cooper came to his residence in 2014 and asked to look at the 

Petitioner’s basement. He asked the Petitioner about the three computers in the basement 

and whether he used them to look at pornography, which the Petitioner denied doing. The 

Petitioner was not aware that Detective Cooper was recording their conversation. 

Thereafter, the Petitioner was indicted and posted bond. His bondsman recommended that 

he get a lawyer and directed him to a lawyer whom he would eventually hire (“Counsel”). 

Approximately two weeks after the Petitioner hired Counsel, Counsel came to him with an 

offer from the State to plead guilty in exchange for an eight-year sentence to be served at 

thirty-five percent. At this time, the Petitioner was charged only with aggravated sexual 

battery. The Petitioner rejected the offer, and Counsel returned again with information that 

the State planned to charge him with rape of a child as well. Counsel explained that he had 

exposure to a longer sentence for a rape of a child conviction and advised the Petitioner to 

accept the plea offer. 

The Petitioner had wanted a sentence shorter than eight years and Counsel told him 

the trial court might sentence him to less than eight years but that also he could “die in 

prison.” The Petitioner did not understand the elements of aggravated sexual battery. 

Counsel filed a motion for a bill of particulars. The two men met three or four times and 

Counsel gave the Petitioner a copy of the recording of his statement to Detective Cooper, 

but the Petitioner did not listen to it prior to trial. The Petitioner noted that he had a hearing 

issue and could not hear everything that happened at his trial, meaning he had to trust 

Counsel. The Petitioner agreed that, had he listened to the recording prior to trial, he would 

have changed his mind about accepting the plea. 

The Petitioner recalled how, in the recorded statement, he “came clean” with 
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Detective Cooper because he felt that “nothing was going to really happen.” The Petitioner 

told Detective Cooper that he had touched the victim’s vagina but that “she wanted to do 

it.” Detective Cooper asked him to elaborate and the Petitioner described touching the 

Petitioner’s vagina in detail, including with his tongue. When asked about penetration of 

the vagina, the Petitioner told the detective several times that he never penetrated the victim 

but touched the outside and top of her vagina. Ultimately, this recording was in the 

discovery file provided to Counsel and when it was played at trial, the Petitioner discovered 

that much of the recording had been deleted. If the Petitioner had heard it prior to trial, it 

would have changed his position on the plea offer. The Petitioner said that Counsel should 

have kept the recording out of the trial because it was hearsay. The Petitioner recalled that 

he never sat down with Counsel and discussed his case in detail and did not know he was 

being tried for the rape of a child charges as well as the aggravated sexual battery charges. 

The Petitioner hoped he was facing no more than two years in prison, based on his 

“rubbing” the victim but not raping her. 

The Petitioner testified that Counsel did not explain to him the release eligibility on 

his plea offer and that it meant he would be eligible to be released after two or three years 

of incarceration. This would have influenced the Petitioner’s decision with regard to the 

plea. The Petitioner said that, because he could not hear the victim’s testimony, he was 

unable to advise Counsel during trial what to ask the victim about. The Petitioner was 

unaware whether Counsel made his hearing impairment known to the trial court.

The Petitioner stated that Counsel should have advocated more on the issues of the 

lack of a search warrant for the Petitioner’s computer, as well as the superseding indictment 

charging him with the additional counts of rape of a child. 

On cross-examination, the Petitioner stated that he was represented by Counsel and 

a second attorney (“Co-counsel”). The Petitioner stated that he wanted a one- to two-year 

sentence, rather than the offered eight-year sentence, because he was not guilty of 

aggravated sexual battery. He said that the “only” aggravated thing about the crime was 

that the victim was under thirteen years of age. The Petitioner reiterated that he did not 

understand how he could be charged with rape and took issue with the superseding 

indictment for rape of a child and its timing. He thought the jury could not find him guilty 

of rape.

The Petitioner reiterated that Counsel provided him the recording of his statement 

before trial but he lost it and never listened to it. He conceded that he did not tell Counsel 

or Co-counsel that he could not hear the trial proceedings. When asked about his 

confession on the recording, the Petitioner stated he had never said those things. 

Counsel testified that he met with the Petitioner several times before being retained 

by him. At that point, the Petitioner had been indicted and was released on bond. Counsel 

had been practicing for forty-five years and had tried thirty cases before a jury. Counsel 
7

described the prosecutor on the Petitioner’s case as “very difficult to deal with” and stated 

that he was determined to convict the Petitioner. The State extended the eight-year offer 

early on in Counsel’s representation, which Counsel forwarded to the Petitioner, along with 

his discovery file. Counsel and the Petitioner had a meeting to discuss the charges. The 

Petitioner never indicated that he could not hear. Co-counsel was present at their meeting 

and Counsel indicated that their meeting was recorded. Counsel explained the law 

surrounding aggravated sexual battery and played the recording of his statement to 

Detective Cooper. Counsel recalled that he and Co-counsel explained the release eligibility 

portion of the State’s offer to the Petitioner. Counsel understood that the State would 

pursue more charges if the Petitioner did not accept the initial offer and explained the same 

to the Petitioner. Co-counsel read the aggravated sexual battery and rape of a child laws 

to the Petitioner.

Counsel recalled telling the Petitioner that if he took the plea offer, he would be able 

to return home in the foreseeable future. He also said that a jury would probably want to 

put the Petitioner in prison for life. The problem was the Petitioner’s belief that he did not 

rape the victim because he believed that penetration had not occurred. Counsel said he 

could not get through to the Petitioner that a child victim is a protected class legally and 

that if he proceeded to trial and she testified, he would likely be convicted. Counsel 

continuously considered whether the Petitioner should testify and decided it would not be 

in his best interest, particularly because of how Counsel felt the Petitioner would perform 

on cross-examination. Counsel felt that the evidence was very strong and that the 

Petitioner’s only chance of success would be in securing a conviction for a lesser-included 

offense. 

Counsel hired an investigator who interviewed the Petitioner. Counsel also 

arranged for the Petitioner to undergo a psychosexual evaluation. Counsel filed pre-trial 

motions to exclude the Petitioner’s confession and a motion for a bill of particulars. 

Counsel did not place any credence, based on his experience, that the Petitioner’s 

confession had been altered, and he stated that the Petitioner had in fact listened to the tape 

prior to trial. Counsel stated that he did not shy away from taking cases to trial but that the 

Petitioner made a bad decision when he turned down the eight-year offer. 

Counsel recalled that there was an issue with witness sequestration during the trial 

that was brought to the trial court’s attention, who admonished the witnesses that they were 

not to violate the order of sequestration. Counsel motioned for a mistrial and the trial court 

responded that Counsel could explore any influence on the witnesses’ testimony during 

cross-examination. Counsel recalled that the victim gave inconsistent testimony but that 

he had to question her very delicately in front of the jury. He recalled that the victim 

admitted on the stand that she was testifying inconsistently.

Co-counsel testified that he assisted Counsel in preparing for the Petitioner’s trial. 

He recalled the Petitioner’s misconception about rape requiring full penetration, which Co-
8

counsel made “abundantly clear” to him was not the case. Co-counsel logged eleven inperson meetings with the Petitioner. The investigator testified that he interviewed the 

Petitioner, who told him “word for word” what he had said to the police, and the 

investigator felt that Counsel would find it impossible to defend the Petitioner in a jury 

trial.

Following the close of the hearing, the post-conviction court issued an order denying 

the Petitioner relief and stating the following: 

[Counsel] and [Co-counsel] both testified that the Petitioner was 

properly advised o[f] what the legal consequences of accepting the plea offer 

would be and the legal consequences of rejecting it. [Counsel] and [Cocounsel] also testified that they explained to [the Petitioner] what he was 

charged with and what the proper penalty would be i[f] convicted. The only 

proof at the hearing of any lack of proper legal advice given to [the 

Petitioner], comes only from [the Petitioner]. After considering all the 

testimony, this Court credits the testimony of [Counsel], [Co-counsel], and 

[the investigator] over that of [the Petitioner.] It is hard to reconcile the 

complete testimony of [Counsel], [Co-counsel], and [the investigator] with 

that of [the Petitioner.] This Court also finds that any further conflict 

between the testimony of [the Petitioner] and other said witnesses, will be 

decided in favor of [Counsel], [Co-counsel], and [the investigator]. 

For the reason listed above, the Petitioner has failed to carry his 

burden of clear and convincing evidence to establish this issue.

[Counsel] testified that he did ask the victim on cross-exam[ination] 

if she had violated the rules of sequestration during the trial. [Counsel] 

explained that the victim testified that she did not violate said rule. It is 

unclear what the Petitioner believes [Counsel] should have done to “fully 

cross-examine” the victim. The Petitioner offered no evidence at this hearing 

as to what further questions of the victim, or any other witness, related to 

sequestration violations would have brought to bear. [Counsel] explained his 

tactics and strategy in relation to the cross-examination of the victim in this 

case. This Court finds that [Counsel’s] performance, in relation to this issue, 

did not fall below an objective standard of reasonableness under prevailing 

professional norms. Alternately, even if such a departure from prevailing 

professional norms existed in [Counsel’s] performance, the [P]etitioner has 

failed to show that this departure would have resulted in a reasonable 

probability of a different result at trial. 

For the reason listed above, the Petitioner has failed to carry his 

burden of clear and convincing evidence to establish this issue.
9

[Counsel] testified to filing approximately fifty (50) motions in the 

Petitioner’s case, including a motion to suppress his confession. . . . . The 

Petitioner offered no evidence of any specific motion to suppress that should 

have been filed in his case. Further, the Petitioner has offered no evidence 

that any other motion filings would have possibly changed the outcome of 

his case.

For the reason listed above, the Petitioner has failed to carry his 

burden of clear and convincing evidence to establish this issue.

[Counsel] testified that he listened to the audio tape of the Petitioner’s 

confession and did not believe it was altered in any way. During the 

Petitioner’s testimony, it was unclear what if anything he was alleging was 

altered about said audio tape. The Petitioner failed to present any evidence 

that would tend to establish the audio confession was altered.

The evidence presented at this hearing established that [Counsel] met 

with the Petitioner on multiple occasions to discuss his defense. [Counsel] 

took time to go over the discovery and the State’s evidence with the 

Petitioner. [Counsel] fully explained what the plea offer was and what was 

at risk if the Petitioner took his case to trial. [Counsel] also hired a criminal 

investigator to assist in preparing a defense for the Petitioner. The Petitioner 

presented absolutely zero evidence to establish any allegations made in the 

written petitions or any allegation testified to at this hearing. In the face of 

overwhelming evidence the State presented at his trial, the Petitioner has 

failed to meet his burden of clear and convincing evidence on any allegation, 

and, alternatively, has failed to establish that any deficient performance by 

[Counsel] would have potentially brought about a different result.

It is from this judgment that the Petitioner now appeals. 

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it 

denied his petition because he received the ineffective assistance of counsel. He contends 

that Counsel’s advice to the Petitioner was deficient because the Petitioner did not fully 

understand the charges he faced, the available plea options, or the very favorable plea offer 

that was made to him. Counsel’s deficient performance in this regard led the Petitioner to 

go to trial rather than enter a guilty plea. He additionally contends that Counsel failed to 

provide him with the recording of his confession before trial and failed to investigate the 

matter. Lastly, he contends that Counsel insufficiently questioned the victim about a 
10

possible violation of the sequestration rule. The State responds that the Petitioner has not 

established any deficiency by Counsel or prejudiced suffered by the Petitioner. We agree 

with the State.

In order to obtain post-conviction relief, a petitioner must show that his or her 

conviction or sentence is void or voidable because of the abridgment of a constitutional 

right. T.C.A. § 40-30-103 (2018). The petitioner bears the burden of proving factual 

allegations in the petition for post-conviction relief by clear and convincing evidence. 

T.C.A. § 40-30-110(f) (2018). The post-conviction court’s findings of fact are conclusive 

on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450, 

456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the 

evidence below; all questions concerning the credibility of witnesses, the weight and value 

to be given their testimony and the factual issues raised by the evidence are to be resolved 

by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 

1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s 

conclusions of law, however, are subject to a purely de novo review by this Court, with no 

presumption of correctness. Id. at 457. 

The right of a criminally accused to representation is guaranteed by both the Sixth 

Amendment to the United States Constitution and article I, section 9 of the Tennessee 

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following 

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was 

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

counsel was not functioning as the “counsel” guaranteed the [petitioner] by 

the Sixth Amendment. Second, the [petitioner] must show that the deficient 

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

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose 

result is reliable. Unless a [petitioner] makes both showings, it cannot be 

said that the conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419 

(Tenn. 1989). 

In reviewing a claim of ineffective assistance of counsel, this Court must determine 

whether the advice given or services rendered by the attorney are within the range of 

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To 

prevail on a claim of ineffective assistance of counsel, a petitioner must show that 

“counsel’s representation fell below an objective standard of reasonableness.” House v. 

State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).
11

When evaluating an ineffective assistance of counsel claim, the reviewing court 

should judge the attorney’s performance within the context of the case as a whole, taking 

into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the 

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 

690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must 

be highly deferential and “should indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. 

Finally, we note that a defendant in a criminal case is not entitled to perfect representation, 

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. 

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of 

counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally 

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 

466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective 

merely because a different procedure or strategy might have produced a different result. 

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a 

particular strategy or tactic failed or hurt the defense does not, standing alone, establish 

unreasonable representation. However, deference to matters of strategy and tactical 

choices applies only if the choices are informed ones based upon adequate preparation.” 

House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). 

If the petitioner shows that counsel’s representation fell below a reasonable 

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by 

demonstrating “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; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must 

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

Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). 

The Petitioner contends that Counsel was ineffective for failing to explain his 

sentencing exposure at trial, failing to provide a copy of the taped confession, failing to 

conduct a thorough investigation, and failing to litigate the alleged violation of the witness 

sequestration rule. The post-conviction court found that Counsel had fully explained to the 

Petitioner his charges and the potential punishments, and that both Counsel and Co-counsel

made every effort to make the case and its liabilities clear to the Petitioner. The postconviction court found that Counsel met with the Petitioner and prepared for trial including 

filing multiple motions prior to trial to keep certain items of evidence out of the trial. The 

post-conviction court found that the audio recording was not altered as alleged by the 

Petitioner and was provided to him prior to trial. Finally, the post-conviction court found 

that Counsel had cross-examined the victim to the extent feasible about the potential 

violation of the sequestration rule, and that she gave every indication it had not been 

violated.
12

The evidence does not preponderate against the post-conviction court’s findings. 

Counsel testified that he was well prepared for trial and had met with the Petitioner 

numerous times. Counsel made every attempt to convince the Petitioner to accept the 

State’s favorable plea offer but when the Petitioner ultimately rejected the offer, Counsel 

went ahead with his trial strategy. Counsel made several decisions during trial, including 

not to aggressively question the victim, based on his knowledge and experience with jury 

trials and minor victims. Such strategic or tactical decisions are given deference on appeal 

if the choices are informed and based upon adequate preparation. See Goad, 938 S.W.2d 

at 369; see also, Hellard, 629 S.W.2d at 9. Counsel and Co-counsel testified that the

Petitioner had been provided with the recording of his confessions and neither saw any 

indication that it had been altered. Counsel stated that he had experience with altered 

recordings and so would recognize an alteration if one had occurred. 

Regarding the violation of the witness sequestration rule, Counsel stated that he 

motioned for a mistrial, which was denied, and thus he questioned the victim as voraciously 

as was practical about the possibility that the rule had been violated and that the victim’s 

testimony had been influenced. The victim denied that this had occurred and again, 

Counsel used his knowledge and experience in considering how much to push back on the 

victim’s testimony. Again, we will not second guess such a strategic decision based on 

informed experience and adequate preparation. Id. Additionally, the Petitioner did not 

present any proof that Counsel’s alleged deficient representation of him impacted the 

outcome of his trial. The State presented strong proof in the form of the victim’s testimony, 

her taped forensic interview, and the Petitioner’s taped confession. Accordingly, the 

Petitioner has failed to carry his burden that but for Counsel’s performance, it is reasonably 

probable that the outcome of his proceedings would have been different. The Petitioner is 

not entitled to relief.

III. Conclusion

After a thorough review of the record and the applicable law, we conclude the postconviction court properly denied the Petitioner’s petition for post-conviction relief. In 

accordance with the foregoing reasoning and authorities, we affirm the judgment of the 

post-conviction court.

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ROBERT W. WEDEMEYER, JUDGE