IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 19, 2016

JEROME S. BARRETT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2008-B-1791 Steve R. Dozier, Judge

No. M2015-01161-CCA-R3-PC – Filed August 18, 2016

The Petitioner, Jerome S. Barrett, appeals as of right from the Davidson County Criminal 

Court‟s denial of his petition for post-conviction relief wherein he challenged his 

conviction for second degree murder. On appeal, he asserts that trial counsel was 

ineffective in the following ways: (1) for failing to call an alibi witness; (2) for failing to 

call a deoxyribonucleic acid (“DNA”) expert; and (3) for failing to timely request 

independent DNA testing. Following our review, we affirm the judgment of the postconviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

David Harris (on appeal); and Jason Chaffin (at hearing), Nashville, Tennessee, for the 

appellant, Jerome S. Barrett.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant 

Attorney General; Glenn Funk, District Attorney General; and Tom Thurman, Assistant 

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

OPINION

FACTUAL BACKGROUND

In 2009, the Petitioner was convicted of second degree murder for the February 

1975 murder of nine-year-old Marcia Trimble. The Petitioner‟s conviction was affirmed 

by a panel of this court on direct appeal, and our supreme court declined further review. 

See State v. Jerome Sidney Barrett, No. M2009-02636-CCA-R3-CD, 2012 WL 2870571
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(Tenn. Crim. App. July 13, 2012), perm. app. denied (Tenn. Dec. 12, 2012). On direct 

appeal, this court provided a comprehensive review of the evidence presented at trial. 

See id. at *1-25. Briefly, on the evening of February 25, 1975, the victim left her 

Nashville home to deliver Girl Scout cookies to a neighbor who lived across the street. 

When the victim‟s mother called for her approximately twenty-five minutes later, the 

victim did not respond and did not return home. Id. at *1.

Following an extensive search, the victim‟s body was found on March 30, 1975, in 

a neighbor‟s garage. Id. at *2. The garage where she was found was open-ended without 

doors, and her body was well-hidden. Id. An autopsy showed that the victim‟s cause of 

death was asphyxia caused by manual strangulation. Id. The forensic examiner who 

performed the autopsy opined that based upon decomposition, livor mortis, and the 

victim‟s stomach contents, she died at or near the time of her disappearance and was 

likely in the garage “„almost from the time of death.‟” Id. at *4.

The medical examiner took vaginal swabs from the victim‟s vagina, and that 

evidence was preserved by rolling the swabs onto slides. Id. Subsequent analysis 

showed the presence of sperm, but DNA testing was not available in 1975. Id. The 

slides prepared were preserved by the medical examiner‟s office. Id. The Federal 

Bureau of Investigation (“FBI”) conducted serology testing on the victim‟s underwear, 

pants, and blouse. Id. at *10. Those tests revealed no blood or semen on the underwear 

but did show the presence of semen on the pants and blood on the blouse. Id.

The case remained unsolved, but the Metro Nashville Police Department 

continued to investigate the murder, and in 1990 the victim‟s case file was reviewed in an 

attempt to locate evidence that could be submitted for DNA testing. Id. at *11. Between 

1990 and 2004, the victim‟s pants, blouse, and the slides created from the vaginal swabs 

were tested multiple times by various laboratories. Id. at *11-12, *15-19. A DNA profile

from this evidence was created in March 1992. Id. at *11. That DNA was compared to 

samples from over one hundred individuals, including samples from “almost everyone in 

the victim‟s neighborhood,” but there were no matches. Id.

The Petitioner was eventually developed as a suspect, and police obtained a search 

warrant for his DNA in 2007. Id. at *15. The Petitioner‟s DNA matched a profile 

developed from the victim‟s blouse. Id. at *21. A DNA expert opined that the 

probability of a “random match” was one in six trillion. Id. The Petitioner was 

subsequently arrested and indicted. Id. at *15. In 2008, two jailhouse informants 

informed authorities that while he was in jail, the Petitioner made statements admitting 

that he had killed the victim but denying that he had raped her. Id. at *14. 
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After the jury‟s return of a guilty verdict, the Petitioner was sentenced to fortyfour years to be served consecutively to a life sentence for a previous conviction. Id. at 

*25.

Following his unsuccessful direct appeal, the Petitioner filed a timely pro se 

petition for post-conviction relief. Counsel was appointed, and an amended pro se 

petition was filed.1 The original petition and amended petition contained numerous 

grounds for post-conviction relief, only three of which have been maintained on appeal: 

(1) that trial counsel was ineffective for failing to call an alibi witness; (2) that counsel 

was ineffective for failing to call a DNA expert to testify for the defense; and (3) that 

counsel was ineffective for failing to timely request independent DNA testing.

At the evidentiary hearing, the Petitioner testified and described his relationship 

with his attorneys

2

as “pretty good,” saying he “thought they were doing . . . a pretty 

good job at the time.” He further agreed that he was satisfied with the “level of 

communication” he maintained with his attorneys.

The Petitioner testified that he discussed alibi witnesses with trial counsel “in the 

prep stage” fairly early in the course of his representation. The Petitioner claimed that he 

was in Chicago on the day of the murder at an Islamic Festival. The Petitioner was a 

member of the Nation of Islam, and he claimed that he remembered that particular day 

because it was “Saviours‟ Day,” an important holiday in his faith. The Petitioner 

provided counsel with the names of several individuals who accompanied him on the trip 

to Chicago. The Petitioner said that trial counsel and the defense investigator tried to 

contact everyone on the list, but one person “couldn‟t remember” and several others had 

“moved out of town, died, or they weren‟t able to locate them.” However, one 

individual, “Cicero,”3 was able to confirm the Petitioner‟s presence in Chicago. 

Nevertheless, Cicero suffered from serious medical issues and was an ex-convict. 

According to the Petitioner, counsel did not want to call Cicero because he did not 

believe Cicero would be an effective witness, which counsel discussed with the 

Petitioner. Ultimately, Cicero was not called as an abili witness, a decision that the 

 

1 Although counsel had been appointed at the time the amended petition was filed, it was not filed by 

counsel and was submitted by the Petitioner.

2 The Petitioner was represented by two attorneys from the Public Defender‟s Office; however, only one 

attorney testified at the post-conviction hearing, and the petitioner‟s appellate brief refers only to that 

individual in the context of his claim of ineffective assistance of counsel.

3

From the record, it is unclear whether Cicero is the individual‟s given name or surname; also, the name 

is spelled differently throughout the record. We have adopted the spelling utilized by the Petitioner in his 

petition.
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Petitioner admitted he agreed with at the time, noting that he “trusted [counsel‟s] 

judgment.” In retrospect, however, the Petitioner said that “even a little bit might have 

been better than none” because Cicero was the only person who remembered his being in 

Chicago on the day the victim went missing.

The Petitioner agreed that the State‟s case was largely based on DNA evidence as 

well as inculpatory statements the Petitioner made. The Petitioner did not recall 

discussing an independent DNA expert with counsel, but he did remember that counsel 

filed a motion to continue so that an independent expert could be hired. He testified that 

the motion to continue was denied because it was filed too close to trial. The Petitioner 

said it was “probably his idea” to file the motion, but he could not recall when that 

request was made. According to the Petitioner, he “was impressed with the way [his

attorneys] were handling the case and [his] confidence in them sort of caused [him] to 

relax a little bit on being fully engaged.”

The Petitioner said that he and trial counsel did discuss the DNA evidence itself 

and how to best challenge it. The Petitioner said that there were multiple DNA analyses 

performed with varying results; thus, he thought it was important to obtain an 

independent analysis. According to the Petitioner, the State‟s expert testified 

inconsistently about the DNA evidence and “misused a lot of words related to DNA that 

prejudiced [the] jury.” The Petitioner said that he was not aware that trial counsel 

retained and consulted with a DNA expert.

On cross-examination, the Petitioner said that he discussed his alibi with counsel 

soon after his first meeting with his attorneys. He also said that his request to counsel for 

independent DNA testing occurred early in the case. The Petitioner explained that while 

he did not believe counsel “intentionally” waited to file a motion for independent testing, 

he was not sure why it was filed so close to trial.

Trial counsel testified and agreed that he and the Petitioner discussed an alibi 

defense early in the case. Counsel said that he worked with a defense investigator, 

Amber Cassitt, and that he gave her the list of potential alibi witnesses and asked her to 

meet with the Petitioner to discuss details of the alibi and then to meet with as many 

people on the list as possible. According to trial counsel, Ms. Cassitt spent a “substantial 

amount of time” attempting to locate these potential witnesses. Trial counsel said that 

Ms. Cassitt was able to locate about half of the individuals named by the Petitioner, but 

some of them did not remember the Petitioner. Two people remembered the Petitioner 

and “thought that it was likely that he would have gone [to Chicago] because he was 

active in [the] [Nation of Islam] community at that time.” However, Cicero was the only 

person who “specifically” told Ms. Cassitt that he recalled the Petitioner‟s being in 

Chicago on the relevant date. 
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According to trial counsel, Cicero was not actually located until closer to the trial 

date. Counsel decided to file a notice of alibi and then he and the Petitioner “had further 

discussion about whether . . . [Cicero] would be a good witness in terms of credibility 

issues.” Trial counsel said that he stood by his decision not to call Cicero as a witness, 

saying that if there had been “stronger means to prove that [the Petitioner] was in 

Chicago,” trial counsel would have presented that evidence. However, trial counsel 

opined that the alibi evidence they had was not strong, and he ultimately concluded that 

“putting out a weak alibi was worse than putting on no proof at all.”

Trial counsel agreed that the State‟s case was primarily based on the DNA 

evidence and the testimony of jailhouse informants. Counsel said that the trial strategy 

was to undermine the credibility of the informants and, more generally, “to present a 

circumstantial case that it was unlikely that [the Petitioner] could have been in [the 

victim‟s] neighborhood in 1975 and gone unnoticed.” Trial counsel said that, with 

respect to the DNA evidence, a profile other than the Petitioner‟s had been developed

from the victim‟s clothing but was never matched to an individual, and the defense 

argued that profile belonged to the real offender.

Trial counsel said that he consulted with a DNA expert, Dr. Ronald Acklen. Dr. 

Acklen reviewed all the laboratory reports and materials related to the DNA testing. 

Counsel and Dr. Acklen discussed the “methodology and procedure” utilized by the 

various laboratories involved in the DNA analyses and “consulted about some potential 

cross[-]examination strateg[ies] for the various experts that [trial counsel] expected to 

testify at the trial.” However, trial counsel decided not to call Dr. Acklen as a witness 

because “he would have just basically affirmed what the experts for the State were saying 

about the various technolog[ies] . . . used over the years to test [the] . . . evidence.” Trial 

counsel opined that live testimony from Dr. Acklen would not have been beneficial to the 

defense.

Trial counsel recalled discussing the DNA evidence with the Petitioner and 

remembered that the Petitioner requested independent testing. Co-counsel located a 

laboratory that could test the DNA, and trial counsel filed a motion for funds to have the 

DNA evidence retested. When asked why he did not make this request earlier, trial 

counsel said that “[i]n retrospect” he wished he had made the request earlier, but from the 

discussions he had with Dr. Acklen, he did not think independent testing was necessary. 

He said that he regretted the decision because it was something the Petitioner wanted 

done.

Following the evidentiary hearing, the post-conviction court entered a detailed 

order denying the petition. As pertinent to our review, the court accredited trial counsel‟s 

testimony that he investigated Cicero as a potential alibi witness. The post-conviction 

court found that Cicero was suffering from health issues and had a criminal record. The 
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court noted that trial counsel and the Petitioner discussed whether to call Cicero as a 

witness and that the Petitioner was aware of the decision not to call him. Therefore, the 

court found that counsel did not render deficient performance in this respect and that the 

Petitioner had failed to show that he was prejudiced by this decision.

With respect to the issues related to calling a DNA expert and requesting 

independent DNA testing, the post-conviction court again accredited trial counsel‟s 

testimony that he consulted with a DNA expert but decided not to call him because Dr. 

Acklen‟s conclusion was the same as the State‟s experts. Also, Dr. Acklen was utilized 

as a resource for cross-examination strategies. The court noted that trial counsel 

“adequately investigated the DNA evidence” and that there was no evidence presented at 

the evidentiary hearing that the outcome would have been different had Dr. Acklen been 

called as a witness. Likewise, the court stated that it “heard no evidence that an 

independent DNA test would have produced favorable evidence to the [P]etitioner [or] 

would have affected the outcome of trial.” The post-conviction court concluded that the 

Petitioner did not prove that counsel‟s decisions not to call Dr. Acklen or to request 

independent DNA analysis earlier in the case were deficient or that the Petitioner had 

been prejudiced in any way. 

ANALYSIS

On appeal, the Petitioner contends that trial counsel was ineffective in three ways: 

(1) for failing to call Cicero as an alibi witness; (2) for failing to call Dr. Acklen as an 

expert in DNA for the defense; and (3) for failing to timely request independent DNA 

analysis. The State responds that the Petitioner failed to show that trial counsel was 

deficient in any respect or that the Petitioner was prejudiced by counsel‟s performance.

Post-conviction relief is available when a “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. 

Criminal defendants are constitutionally guaranteed the right to effective assistance of 

counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const. 

amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective 

assistance of counsel is made under the Sixth Amendment to the United States 

Constitution, the burden is on the petitioner to show (1) that counsel‟s performance was 

deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 

668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

Deficient performance requires a showing that “counsel‟s representation fell 

below an objective standard of reasonableness,” despite the fact that reviewing courts 

“must indulge a strong presumption that counsel‟s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires 
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proof of “a reasonable probability that, but for counsel‟s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 694. “Because a petitioner must 

establish both prongs of the test, a failure to prove either deficiency or prejudice provides 

a sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938 

S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to 

counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772 

S.W.2d 417, 419 n.2 (Tenn. 1989).

The burden in a post-conviction proceeding is on the petitioner to prove his 

allegations of fact supporting his grounds for relief by clear and convincing evidence. 

Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94 (Tenn. 2009). On 

appeal, we are bound by the trial court‟s findings of fact unless we conclude that the 

evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d

450, 456 (Tenn. 2001). Additionally, “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 court. Id. Because they relate 

to mixed questions of law and fact, we review the trial court‟s conclusions as to whether 

counsel‟s performance was deficient and whether that deficiency was prejudicial under a 

de novo standard with no presumption of correctness. Id. at 457.

The Petitioner first contends that trial counsel was ineffective for failing to call 

Cicero as an alibi witness. According to the Petitioner, Cicero would have testified that 

he was in Chicago on the day that the victim disappeared. In order to satisfy the 

prejudice prong of Strickland when alleging that trial counsel was ineffective for failing 

to investigate or call witnesses, a petitioner must “show that through reasonable 

investigation, trial counsel could have located the witness . . . and . . . elicit[ed] both 

favorable and material testimony from the witness.” State v. Denton, 945 S.W.2d 793, 

802-03 (Tenn. Crim. App. 1996) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. 

Crim. App. 1990)). When a petitioner claims that trial counsel was ineffective for failing 

to call witnesses, the only way he can prove prejudice is by producing the testimony of 

those witnesses at the evidentiary hearing. See Black, 794 S.W.2d at 757.

Although the Petitioner and trial counsel testified that Cicero recalled the 

Petitioner‟s being in Chicago on the day of the victim‟s disappearance, Cicero was not 

called as a witness at the evidentiary hearing. Consequently, it is unclear what Cicero 

would have actually testified to and what impact, if any, that testimony would have had 

on the outcome of trial. Accordingly, the Petitioner has not shown prejudice, and he is 

not entitled to relief.

Next, the Petitioner contends that trial counsel was ineffective for not calling a 

DNA expert to testify for the defense. Again, the Petitioner failed to produce the 

testimony of a DNA expert at the hearing, and we therefore cannot assess what impact 
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such testimony would have had at trial. See Black, 794 S.W.2d at 757. The Petitioner 

has failed to prove that he was prejudiced by counsel‟s decision in this respect, and he is 

not entitled to relief.

Finally, the Petitioner contends that trial counsel was deficient for failing to make 

a timely request for independent DNA analysis. The Petitioner asserts that if 

“independent testing [had] been requested at an earlier and more reasonable time the 

request might have been granted.” However, the Petitioner failed to introduce any results 

of independent testing at the hearing in support of his claim and offered no explanation as 

to how he was prejudiced by the absence of independent DNA testing.

At the evidentiary hearing, trial counsel testified that after consulting with Dr. 

Acklen, he determined that independent testing was not necessary. Dr. Acklen opined to 

counsel that he agreed with the conclusions reached by the State‟s experts. Additionally, 

Dr. Acklen advised trial counsel about particular areas of cross-examination. Counsel 

admitted at the hearing that “[i]n retrospect” he wished that he had requested independent 

testing earlier, mostly because it was something that the Petitioner wanted. However, 

when reviewing an attorney‟s conduct in the post-conviction context, “a fair assessment . 

. . requires that every effort be made to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel‟s challenged conduct, and to evaluate the 

conduct from counsel‟s perspective at the time.” Strickland, 466 U.S. at 689. Likewise, 

deference is made to trial strategy or tactical choices if they are informed ones based 

upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial 

counsel made a decision not to request independent testing based on his consultation with 

an expert and subsequent conclusion that additional testing would not be helpful. 

Although he expressed regret in hindsight that he did not request independent testing, we 

conclude that at the time, he made a reasonable strategic decision not to request 

independent testing earlier in the case. Accordingly, the Petitioner has not proven that 

counsel rendered deficient performance, and he is not entitled to relief.

CONCLUSION

 Based on the foregoing and the record as a whole, the judgment of the post-conviction 

court is affirmed.

________________________________

D. KELLY THOMAS, JR., JUDGE