IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 8, 2016

RODNEY GLOVER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Montgomery County

No. 40900017 William R. Goodman, III, Judge

No. M2016-00619-CCA-R3-PC

The Petitioner, Rodney Glover, was convicted of conspiracy to commit aggravated 

burglary, aggravated burglary, conspiracy to commit theft of property over $10,000, 

aggravated robbery, aggravated kidnapping, and theft of property under $500 and was 

sentenced to fifty years of incarceration to be served at 100%. This Court affirmed the 

judgments and sentence on appeal. State v. Rodney Glover, No. M2011-00854-CCA-R3-

CD, 2012 WL 1071716, at *1 (Tenn. Crim. App., at Nashville, Mar. 28, 2012), no perm. 

app. filed. In 2013, the Petitioner filed a petition for post-conviction relief, claiming that 

he received the ineffective assistance of counsel. We affirm the post-conviction court‟s

judgment. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ALAN E. GLENN, J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Rodney Glover.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; John W. Carney, Jr., District Attorney General; and Robert J. Nash, Assistant 

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

OPINION

I. Facts and Procedural History

This case arises from the robbery of the ninety-year-old victim inside her home, 

during which she was beaten, gagged, and left in restraints for over ten hours. For this 

offense, a Montgomery County grand jury indicted the Petitioner for conspiracy to 

commit aggravated burglary, aggravated burglary, conspiracy to commit theft of property 

over $10,000, aggravated robbery, aggravated kidnapping, and theft of property under 
2

$500. 

A. Trial

This Court summarized the evidence presented at the Petitioner‟s trial:

On October 16, 2008, Vickie Terrell went to the home of then 90-

year-old Oma England, where Ms. Terrell was employed as a part-time 

caregiver for Ms. England. She arrived at approximately 8:00 in the 

morning to take Ms. England to a 9:00 appointment. Upon her arrival, Ms. 

Terrell was immediately “alerted” that something was wrong because the 

garage door was still down, which was unusual because Ms. England 

routinely opened the door when expecting Ms. Terrell. Ms. Terrell also 

noticed a screen removed from a garage window and a bench knocked over 

near the garage. Once she entered the garage, Ms. Terrell saw that Ms. 

England‟s 2006 Mercury Milan was gone and that several items littered the 

garage floor. Ms. Terrell opened the door to the home and, without 

stepping inside, she could see the house was “disordered.” She called the 

victim‟s name twice and “backed out” of the home to telephone the 

Clarksville Police Department (CPD).

Officer Ben Blackmon responded to Ms. Terrell‟s call. He entered 

the home to make sure no one was inside. He noted that the home was in 

“extreme disarray” with furniture turned over, pictures removed from the 

walls, drawers pulled out, and paperwork scattered on the floor. Officer 

Blackmon searched the basement and main level floors before going 

upstairs. Each room had “stuff thrown all over” the floor. As he entered an 

upstairs bedroom, Officer Blackmon saw a body lying on a bed. The body 

was completely covered except for the feet. When Officer Blackmon saw 

one of the feet move, he immediately entered the room to “render aid.”

Officer Blackmon identified the person on the bed as the victim, Ms. 

England. The victim‟s feet and hands were bound to the bed with electrical 

cords. Officer Blackmon cut the electrical cords in order to release the 

victim. The victim told Officer Blackmon that she needed water and a 

doctor. Emergency medical technicians soon arrived and transported Ms. 

England to the hospital.

Doctor Robert Paasche, an emergency room physician with Gateway 

Medical Center at the time of the victim‟s assault, treated the victim when 

she arrived at the hospital. He described the victim as “an elderly woman 

who had been beaten quite severely.” The victim suffered “intensive 
3

bruising and swelling about both eyes and the face.” She was unable to 

open her eyes. She also experienced tenderness and bruising to the left side 

of her chest, bruising and swelling to her forearms and wrists, and a “skin 

tear” on her left arm. The victim suffered “quite a bit of pain” from 

fractures to bones in her face and hands. Doctor Paasche determined that 

the victim had been tied to the bed for an “extended period of time.” 

Doctor Paasche ran tests to determine the victim‟s “skeletal muscle enzyme 

level.” He explained that a normal enzyme level is 100. His testing 

revealed that the victim‟s enzyme level, however, reached 1,700, indicating 

that the victim had lain in the same position for ten to 12 hours. At that 

level, the victim was at an increased risk for kidney failure.

CPD officers “processed” the victim‟s home in the days following 

the assault. All of the officers described the home as “totally ransacked.”

From the home, they collected latex gloves, the electrical cords used to bind 

the victim, and a pillowcase that had been placed over the victim‟s head.

Several days later, Ms. Terrell found a “cigarette butt” in a corner of the 

foyer while she helped the victim‟s daughter, Nancy Williams, clean the 

home. Knowing that no one smoked in the home, Ms. Terrell gave the 

partially-smoked cigarette to Ms. Williams who then gave it to Sergeant 

Liane Wilson.

Within days of the assault, another CPD investigator, Detective Brad 

Crowe, received a telephone call concerning a suspected stolen vehicle 

found abandoned at a local used car lot. Detective Crowe collected more 

partially-smoked cigarettes and a Pepsi bottle from the abandoned Ford F250. He also found a business card for Accurate Welding and Ornamental 

Iron, a Georgia business, behind the front seat of the truck. Testing 

performed at the Tennessee Bureau of Investigation Crime Laboratory later 

confirmed the presence of the [Petitioner‟s] and co-defendant Colin 

Savage‟s fingerprints and deoxyribonucleic acid (DNA) on several items 

collected from the victim‟s residence and the truck.

Detective Timothy Finley determined that the license plate on the 

abandoned truck had been stolen from a vehicle in a local Walmart parking 

lot. Through a trace of the truck‟s vehicle identification number, Detective 

Finley also determined that the truck belonged to the owner of Accurate 

Welding and Ornamental Iron, who had reported the truck stolen. The 

victim‟s car was later found in Georgia. The [Petitioner] became a suspect 

following interviews with the victim‟s stepson-in-law, John Privette. When 

Detective Finley learned that the stolen truck originated from Jonesboro, 
4

where the [Petitioner] also lived, the investigators “became real interested 

in” the [Petitioner] as a suspect.

On November 8, 2008, Detective Finley received a letter from the 

[Petitioner] implicating Mr. Savage as a co-participant in the offenses. In 

the letter, the [Petitioner] also disclosed the location of many stolen items.

Investigators located the items on property owned by Mr. Savage‟s mother 

and at a neighbor‟s home where the [Petitioner] had stayed. Investigators 

found jewelry, purses, coin sets, scarves, and flatware belonging to the 

victim at both residences. They also discovered a black nightstick in the 

family room of the home where the [Petitioner] was staying. Telephone 

records revealed that someone telephoned Mr. Savage‟s cellular telephone 

from the victim‟s residence at 10:36 p.m. on October 15 and again at 2:12 

a.m. on October 16. Investigators also learned that the victim, who had a 

subscription to “Lifeline,” an emergency service, received a call from the 

service at 11:41 p.m. on October 15.

Nancy Williams, the victim‟s daughter, testified that her father, 

Maurice Coursey, died more than 15 years ago and that the victim later 

married George England. Mr. England had two children, George and 

Nancy. Mr. England‟s daughter, Nancy, was married to John Privette. Mr. 

England died in February 2008, and the victim was living alone at the time 

of the offenses. Ms. Williams lived in Baton Rouge, [Louisiana] but visited 

the victim three or four times a year. The Terrells worked for the victim, 

doing household chores and maintenance and driving the victim to 

appointments.

Ms. Williams recalled when the offenses occurred. She said she 

flew straight to Clarksville upon learning of the victim‟s assault. The 

victim spent one week in the hospital and several more in a rehabilitation 

center. Ms. Williams described the victim‟s home as a “total wreck.” Ms. 

Williams recalled Ms. Terrell‟s finding a partially-smoked cigarette as they 

cleaned the victim‟s home. She gave the cigarette to Sergeant Wilson. Ms. 

Williams recalled that a blue aquamarine necklace purchased by her father 

in 1948 for her mother was among the items stolen. The victim‟s assailants 

also took Mr. England‟s West Point ring, a large diamond ring, an 

“elaborate gold bracelet,” and a mink coat, as well as the victim‟s car. The 

insurance value of the items totaled between $15,000 and $20,000.

The victim, Oma Nell Woodson Coursey England, testified that she 

was born on March 26, 1918. She recalled being assaulted as she lay asleep 
5

in bed late one night. She said, “[A]t least two [men] jumped on my body 

and started kicking and hitting me . . ., [and] they stomped on me with their 

rough feet.” She said the men covered her face with some kind of cloth-

“like a funeral.” She stopped trying to fight the men, and they bound her 

feet and hands. She did not see her attackers and had never met the 

[Petitioner] or Mr. Savage. She did, however, know Mr. Privette as her 

stepdaughter‟s husband. The victim described her two husbands as “very 

generous men” and said that the attackers took “[e]verything she had . . . 

that night.” She considered herself “fortunate to have not been killed.”

Joseph DeMaio, an inmate at the Montgomery County Jail, met the 

[Petitioner] as the [Petitioner] awaited trial. The two men became friends, 

and Mr. DeMaio often asked his mother to perform computer research for 

the [Petitioner]. Mr. DeMaio recalled the [Petitioner] admitting his 

involvement in the offenses. The [Petitioner] told Mr. DeMaio that Mr. 

Privette told the [Petitioner] that the victim kept “gold and silver bullion” 

and cash in a safe at her home. The [Petitioner] admitted that he entered 

the victim‟s home and that he tied up the victim when the victim began 

struggling with him. After restraining the victim, the [Petitioner]

telephoned Mr. Savage, who assisted in ransacking the home in search of 

the valuables. The [Petitioner] referred to Mr. Savage as a “chicken shit” 

because Mr. Savage fled the home when “Lifeline” personnel contacted the 

home. The [Petitioner] told Mr. DeMaio that he “thought [the victim] was 

in her 70‟s; had [he] known she was that old [he] never would have [tied 

her up].” The [Petitioner] also told Mr. DeMaio that he and Mr. Privette 

owed Mr. Savage money for methamphetamine.

The [Petitioner] testified at trial and denied ever meeting Mr. 

DeMaio while housed at the Montgomery County Jail or telling Mr. 

DeMaio anything about the offenses. He affirmed the accuracy of his 2008 

statement to CPD Detective Timothy Anderson. The [Petitioner] testified 

that he met Mr. Privette, who asked him to rob his wife‟s stepmother. Mr. 

Privette claimed the victim kept “gold bars and silver bars” in a safe in her 

home. Mr. Privette promised the [Petitioner] that his portion of the theft 

proceeds would total between $100,000 and $300,000. The [Petitioner]

testified that he plotted with Mr. Privette to commit the burglary and theft 

because he needed the money “due to his poverty” and to support his 

methamphetamine addiction.

The [Petitioner] testified that he procured Mr. Savage‟s assistance in 

committing the offenses. The [Petitioner] said that he and Mr. Savage 
6

traveled to the victim‟s home in Clarksville. Before arriving at the home, 

the [Petitioner] and Mr. Savage stopped at a Walmart parking lot where 

they stole a license plate from a vehicle to place on the truck they were 

driving. At the victim‟s home, the [Petitioner] “jimmied” the sunroom door 

open and found keys where Mr. Privette told him they were kept. The 

[Petitioner] entered the victim‟s home between 10:00 and 11:00 p.m. and 

first located a safe in the basement where he found coins and stamps. He 

did not, however, find the gold, silver, and cash as promised by Mr. 

Privette. The [Petitioner] then telephoned Mr. Savage to join him in “going 

through rooms” in search of valuables.

The [Petitioner] admitted putting a pillowcase over the victim‟s 

head, but he denied beating the victim. The [Petitioner] said that Mr. 

Savage beat the victim while the [Petitioner] searched drawers for 

valuables. The [Petitioner] recalled that the victim “was calling on Jesus, 

and [Mr.] Savage told [the [Petitioner] he was a[n] athiest. And that‟s the 

only reason [the [Petitioner] could] think that [Mr. Savage] hit her, or to 

knock her out.” The [Petitioner] eventually told Mr. Savage to stop hitting 

the victim. When the [Petitioner] accidentally knocked the telephone to the 

floor, alerting the victim‟s “Lifeline” system, Mr. Savage became startled 

and ran from the home. The [Petitioner] faked his voice to assure the 

“Lifeline” personnel that everything was okay. He then loaded the victim‟s 

car with the stolen items and spent the night driving around in search of Mr. 

Savage. Unable to locate Mr. Savage, the [Petitioner] drove back to 

Georgia, where he abandoned the victim‟s car.

Walter Vaughn, an inmate in the Montgomery County Jail at the 

same time as the [Petitioner] and Mr. Savage, testified at trial that Mr. 

Savage told him details about the offenses. Mr. Vaughn testified that Mr. 

Savage admitted tying up the victim and beating her. He also told Mr. 

Vaughn that the [Petitioner] disguised his voice as an elderly lady‟s voice 

to dupe the “Lifeline” personnel. According to Mr. Vaughn, Mr. Savage 

returned to the home sometime during the night in search of more valuables 

before telephoning his mother in Georgia to pick him up.

With this evidence, the jury convicted the [Petitioner] of conspiracy 

to commit aggravated burglary, aggravated burglary, conspiracy to commit 

theft of property valued at over $10,000 but less tha[n] $60,000, aggravated

robbery, aggravated kidnapping – all related to offenses committed against 

Ms. England – and theft of property valued at less than $500, related to the 

stolen license plate.
7

At the sentencing hearing, the parties agreed that the [Petitioner] 

qualified as a Range II, multiple offender based upon his history of criminal 

convictions. The [Petitioner] testified that his most serious prior 

conviction, vehicular homicide, arose from a high speed chase from the 

police during which his passenger and good friend was killed. During the 

same incident, the [Petitioner] suffered severe head injuries and was 

hospitalized in a coma for several months. After his trial in the instant case, 

the [Petitioner] testified against Mr. Savage in Mr. Savage‟s separate trial.

The [Petitioner] expressed remorse to the victim and her family for the 

offenses.

. . . .

The court then ordered that the sentences in counts one and two be served 

concurrently (for an effective sentence of 10 years), and that the sentences 

in counts three and four be served concurrently (for an effective sentence of 

20 years), but it ordered that each concurrently aligned pair be served 

consecutively to one another and to the 20 year sentence imposed in count 

five. Thus, the trial court imposed a total effective sentence of 50 years' 

incarceration.

Glover, 2012 WL 1071716, at *1-5 (footnotes omitted).

B. Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief, pro se, in which he 

alleged that he had received the ineffective assistance of counsel. The post-conviction

court appointed an attorney, and the attorney filed an amended petition, alleging that the 

Petitioner had received the ineffective assistance of counsel because Counsel failed to 

review with or provide to the Petitioner the “whole of the evidence,” resulting in the 

Petitioner not informing Counsel of facts that would have shown the jury that he was not 

guilty of aggravated robbery. He also alleged that Counsel failed to adequately present or 

investigate the theory that the Petitioner did not assault or injure the victim during the 

robbery. The Petitioner subsequently filed a motion requesting that his appointed postconviction counsel be dismissed for a conflict of interest. The Petitioner‟s motion was 

granted, and the Petitioner elected to proceed pro se.

The post-conviction court subsequently held a hearing, during which the following 

evidence was presented: Counsel testified that he reviewed the State‟s discovery with the 

Petitioner at the jail. Counsel agreed that he planned to send an investigator to Georgia to 
8

question witnesses. He clarified that he obtained funding for the investigator through the 

State and that the investigator did not go to Georgia after Counsel discussed with the 

Petitioner “the viability of utilizing those people [in Georgia] as witnesses and with the 

complications of not being to contact them through the investigator in addition to the lack 

of information that was provided.” After this discussion, Counsel and the Petitioner 

“chose to proceed” without the witnesses in Georgia. One listed witness, Jason Harley, 

had given a statement that Counsel and the Petitioner reviewed, and “it became apparent” 

that Mr. Harley falsely testified against the Petitioner at Mr. Savage‟s request. Counsel 

testified, however, that Mr. Harley‟s false testimony did not

change the facts that [the Petitioner] had confessed and testified on multiple 

occasions that [he] had been in [the victim‟s] room when Mr. Savage

attacked the victim and so any evidence [Mr. Harley] could give . . . didn‟t 

change the fact that [the Petitioner] was ultimately involved in the attack on 

[the victim], by [his] own words.

Counsel testified that, during his representation of the Petitioner, Counsel 

addressed the trial court about issuing subpoenas for the Georgia witnesses. Counsel 

recalled that the trial court declined to delay the trial to procure the Georgia witnesses 

because Counsel had not shown that there was a material reason for them to be present at 

trial. 

Counsel stated that his trial strategy was “anticlimactic” because the Petitioner had 

confessed several times and admitted to being in the victim‟s home, so the “goal” was not 

to prove that the Petitioner was not there when the crime occurred. Counsel recalled that 

the Petitioner maintained that he had not stolen certain items from the victim‟s home that 

were later recovered, but Counsel testified that the Petitioner‟s stance did not have 

anything to do with the main charges against him – aggravated kidnapping, aggravated 

assault, and aggravated robbery. Counsel testified: 

Those were charges that were going to put [the Petitioner] in prison 

for an extended period of time and . . . it didn‟t matter how much [he] stole, 

it was evidence that [he] took something in the course of a robbery, in the 

course of a kidnapping, and in the course of a burglary and those were the 

issues we were trying to address that should have helped minimize any 

long-term prison sentence.

Counsel recalled that the State offered the Petitioner twenty-five years to serve at 

100%, and Counsel believed that he would be able to negotiate the sentence down to 

eighteen years. The Petitioner, however, was adamant that the case go to trial despite 

Counsel warning him it was not in his best interest. Counsel testified that there was 
9

“overwhelming evidence” against the Petitioner. 

Counsel agreed that Mr. Savage gave several inconsistent statements about the 

Petitioner‟s involvement, but Counsel stated that because the Petitioner had admitted to 

being a part of the crime, the inconsistencies in Mr. Savage‟s statements were not helpful 

to his defense. Counsel testified:

I was belaboring under the belief that [the Petitioner] did not know 

how the victim was tied up, so when [the Petitioner] went into [the 

victim‟s] home, it was . . . my belief prior to trial that at some point after 

Mr. Savage had left the [the Petitioner] could not locate him that evening, 

[Mr. Savage] had come back and done additional harm [to the victim]. 

[The Petitioner‟s] statements . . . w[ere] that the [victim‟s] house when [he] 

left was not in disarray, . . . [t]hat [the victim] had not been tied up when 

[the Petitioner] was present[.] . . . [S]o we went to trial with the hope of 

eliminating some of the elements of the charges against [the Petitioner], 

which we were successful at, the jury did not find that [the Petitioner] 

committed serious bodily injury in the acts done upon [the victim], but also 

we had hoped to be able to show that Mr. Savage at some point had gone 

back to the home and had taken more things and had actually done the harm 

to [the victim] . . . But once [the Petitioner] testified, all that was out the 

window. It became apparent during the trial that Mr. Savage did not go 

back and that [the Petitioner] was in the room when [the victim] was tied 

up, so that changed our course in respect to the second part of our tactic at

trial.

Counsel testified that he did not present to the jury the theory that Mr. Savage had 

returned to the victim‟s home alone and furthered the crime without the Petitioner 

because “there was no evidence that we could collect or witnesses that saw him re-enter 

the home and [the victim] didn‟t have any recollection and made no statement as to that 

occurring.”

On cross-examination, Counsel testified that he had been practicing law since 

2005 and that he was the Petitioner‟s fifth appointed attorney in this case. Counsel 

testified that the Petitioner was facing up to one hundred and twenty-five years if 

convicted and that his case “became the crux of [Counsel‟s] practice. Counsel spent “an 

enormous amount of time with [the Petitioner], up to almost the neglect of [Counsel‟s] 

practice.” Counsel worked “long hours” “very diligently” on the Petitioner‟s case and 

met with the Petitioner “more than any other client” Counsel had ever represented. 

Counsel explained to the Petitioner his possible sentence, the elements of the charges for 

each count, reviewed and discussed the evidence contained in discovery. The Petitioner 
10

was “active” in discussing his case, and the two men discussed trial strategy which was to 

show that Mr. Savage injured the victim. That strategy “fell apart pretty quickly,” but 

Counsel was able to convince the jury that the victim did not suffer serious bodily injury, 

which lessened the Petitioner‟s exposure to a longer sentence. 

Regarding the Petitioner‟s decision to testify, Counsel went over his prospective 

testimony, which included the Petitioner admitting to being present at the victim‟s house. 

Counsel hoped that the Petitioner would be seen as a “sympathetic witness” and an 

“unwitting participant” in Mr. Savage‟s crime. Instead, the Petitioner further implicated 

himself through his testimony and made statements that he had never disclosed to 

Counsel. Counsel said that, if he had known how the Petitioner was going to testify, he 

“would have advised [the Petitioner] strongly not to take the stand.”

The Petitioner testified that, based on the facts of the case, he felt that his charges 

were too severe. He agreed that he testified twice under oath in this case, and agreed that 

he implicated himself by testifying that he was inside the victim‟s home. The Petitioner 

agreed that he stole items from the victim‟s home and disguised his voice as the victim‟s 

when emergency services called to check on her. He agreed he had stolen the victim‟s 

vehicle. He agreed that he gave an extensive statement to the police about his 

involvement. 

The post-conviction court issued an order denying the Petitioner relief, finding, 

relevant to this appeal, that the Petitioner had not established by clear and convincing 

evidence that Counsel was ineffective for failing to subpoena witnesses from out-ofstate.1

 The post-conviction court stated: 

[The] Petitioner contends [that Counsel] failed to adequately 

investigate the facts, interview witnesses, consider possible defenses, or 

matters which might serve to mitigate the offense. The proof at [the postconviction hearing] established that [Counsel] reviewed materials and 

assembled witness statements and that he, with the consent of the 

Petitioner, developed a trial strategy in an effort to mitigate the offense, and 

to establish that the Petitioner was not responsible for any bodily injury. 

Therefore, this contention is without merit.

. . . .

[The] Petitioner indirectly contended that there were witnesses that 

were not called, which [the] Petitioner now contends should have been 

 

1 The post-conviction court made additional findings which, because they are not part of the Petitioner‟s issue on 

appeal, we elect to omit.
11

presented. [The] Petitioner presented no proof at the [post-conviction] 

hearing that the witness or witnesses he desired to have been called would 

have presented testimony that would have been admissible and material to 

his defense. Consequently, there is [no] showing that the failure to call 

such witness or witnesses was prejudicial.

The post-conviction court concluded that the Petitioner had failed to establish his 

ineffective assistance of counsel claim by clear and convincing evidence. It is from the 

post-conviction court‟s judgment that the Petitioner now appeals.

II. Analysis

The Petitioner contends on appeal that the post-conviction court erred when it 

denied his petition because he received the ineffective assistance of counsel because 

Counsel failed to subpoena witnesses from Georgia that the Petitioner requested and 

because Counsel did not interview the lead detective in the case. The State responds that 

Counsel‟s decision to proceed without the witnesses from Georgia was a reasonable, 

strategic decision and that the Petitioner has not met his burden on appeal because he 

failed to present those witnesses at the post-conviction hearing. The State further 

responds that the Petitioner has not shown how interviewing the lead detective would 

have aided in his defense or affected the outcome of the case, and that the Petitioner 

failed to present the lead detective as a witness at the hearing. The State contends that the 

record supports that Counsel provided effective assistance. 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 (2014). 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) (2014). 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 
12

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); see also 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 Goad v. State, 938 S.W.2d 363, 369 

(Tenn. 1996)). 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 should 

avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel‟s 

challenged conduct on the facts of the particular case, viewed as of the time of counsel‟s 

conduct.” Strickland, 466 U.S. at 689-90. 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 
13

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, 938 S.W.2d 

at 369).

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). To establish prejudice, the

Petitioner must: (1) produce the witness at his post-conviction hearing; (2) show that 

through reasonable investigation, trial counsel could have located the witness; and (3) 

elicit both favorable and material testimony from the witness. Black v. State, 794 S.W.2d 

752, 757 (Tenn. Crim. App. 1990).

We conclude that the post-conviction court did not err when it determined that the 

Petitioner had not proven by clear and convincing evidence that he had received the 

ineffective assistance of counsel. With regard to the witnesses in Georgia, Counsel 

testified that he made the decision to proceed without the witnesses, in part because he 

had no way of contacting them and no information to provide his investigator as to their 

whereabouts, and in part because the trial court denied his request to delay the trial in 

order to find the witnesses. Counsel testified that his strategy at trial changed as it 

became clear that the Petitioner had given several statements implicating himself in the 

crime. Counsel opted to minimize the Petitioner‟s exposure to the “aggravated” elements 

of the crime: tying the victim up, beating her, etc. The Georgia witnesses would not have

aided in this strategy, and thus Counsel elected to proceed without further searching for 

them. The Petitioner has not shown by clear and convincing evidence that he received 

the ineffective assistance of counsel based on Counsel‟s trial strategy in this respect. 

Furthermore, in order to grant the Petitioner relief, he is required to present those 

witnesses during the post-conviction hearing and establish that Counsel could have 

located them. Black, 794 S.W.2d at 757. The Petitioner has done neither in this case and 

thus, he is not entitled to relief. 

We also conclude that the Petitioner has not shown that Counsel was ineffective 

for failing to interview the lead detective. There is ample evidence that Counsel 

thoroughly investigated and prepared this case: he reviewed discovery with the Petitioner, 

hired an investigator to interview neighbors and other possible witnesses, met with the 

Petitioner numerous times, and worked “diligently” in preparation for trial. The State‟s 

evidence against the Petitioner was overwhelming, particularly due to the fact that the 

Petitioner admitted to some extent his involvement in the crime. Counsel was able to 
14

exploit where the State had not proven the Petitioner‟s involvement and the jury found 

that the Petitioner had not committed bodily harm against the victim. The Petitioner has 

not proven by clear and convincing evidence that had Counsel interviewed the detective, 

Counsel would have been more prepared to go to trial. We conclude that Counsel was 

diligent and effective in his representation of the Petitioner. Accordingly, we conclude 

that the Petitioner is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

post-conviction court‟s judgment. 

________________________________

ROBERT W. WEDEMEYER, JUDGE