### FILED July 21, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUA RY 1999 SESSION

KENNETH AL

AN STEELE, * C.C.A. No. 03C01-9701-CR-00012 Appellant, * HAMILTON CO UNTY
vs. * Hon. Douglas A. Meye r, Judge STATE OF TENN ESSEE, * (Post-Conviction) Appellee. *
For Appellant : For Appellee : Donna Robinson Miller John Knox Walkup Assistant District P ublic Defender Attorney General and Repor ter 701 Cherry Street, Suit e 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 Todd R. Kelley Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 C. Leland Davis Assistant District A

ttorney General 600 Market Street, Suite 300 Chattanooga, TN 37402

OPINION FILED:

AFFIRMED

NORMA MCGEE OGLE, JUD GE1 The petitioner also alleges in his brief that he was denied the effective assistance of counsel and due process of law by his counsel’s failure on direct appeal to timely submit an application for p

ermission to appea

l to the supreme co

urt. As noted later

in this opinion, this court has already addressed this complaint and provided appropriate relief. 2 OPINION
The petitioner, Kenneth Alan Steele, appeals the Hamilton County Criminal Court’s deni al of post-conviction re lief. On appeal, the petitioner presents the following issues for our consideration: 1. Whether the petitioner received ineffectiv e assistance of counsel at trial and on direct appeal, including counsel’s failure on direct appeal to chal lenge the sufficiency of the evidence supporting all of the petitioner’s convictions; 2. Whether the evidence at trial was suff icient to support all of the petitioner’s convictions and whether this court denied the petitioner due proces s by failing to rev

iew the sufficiency of the evidence sua sponte on direct appe al; 3. Whether the trial court denied th e petitioner due process of law by refusing to pr ovide the petitioner a DNA expert; 4. Whether the trial court denied th e petitioner due process of law by admitting D NA and fingerprint evi dence; 5. Whether the trial court denied th e petitioner due process of law by admitting tes

timony concerning the s how-up identification of the petitioner; and 6. Whether the trial court denied th e petitioner due process of law in instructing

the jury on reasonable doub t. Following a thoroug h review of the recor d and the parties’ briefs, w e affirm the judgment of the post-conviction court. 1
I. Factual Background A. Trial Proceedings

On October 15, 1991, the petitioner ’s case proceeded to trial in the Hamilton County Crimi nal Court on twenty- one separate indictments inv olving eight different incidents with ei ght victims. The offenses spanned a period of time from2 Pursuant to this Court ’s policy, the vict

im will be referr

ed to only by her init

ials.
3 We note that the judgment form in case No. 188342 does not name the offense of which the petitioner was convicted. The trial transcript reflects that the jury found the petitioner guilty of first degree burglary. 3 1987 until 1990. State v. Steele , No. 03C01-9207-CR-233, 1993 WL 415836, at *1 (Tenn. Crim. App. at Knoxv ille, October 13, 1993). The j ury returned guilty verdicts on all twenty-one i ndictments, and, on January 31, 1992, the petitioner was convicted of the following offenses:

1. In cases No. 188342 and No. 188345, fir st degree burglary and agg ravated rape of PM 2 on November 17, 1987. 3 2. In cases No. 188334, No. 188332, and No. 18833 3, first degree burglary, armed robbery, and aggr avated rape of CM on January 3, 1988. 3. In cases No. 188337, No. 188336, and No. 18833 5, first degree burglary, attempt to commit armed robbery, and assault with intent to c

ommit rape of EP on July 26, 1989. 4. In cases No. 188340, No. 188338, and No. 18833 9, first degree burglary, armed robbery, and aggravated assault of DM on July 26, 1989. 5. In cases No. 188330, No. 188329, and No. 18833 1, first degree burglary, armed robbery, and aggr avated rape of ES on October 8, 1989. 6. In case No. 1 88341, aggr avated burg lary of SB’ s home on January 21, 1990. 7. In cases No. 188343, No. 188328, and No. 188344, aggravated burgl ary, aggravated robbery, and attempted rape of SS on June 24, 1990.

8. In cases No. 188327, No. 188325, and No. 188326, aggravated burgl ary, theft of property, and r ape of JP on4 The judgment form f or the petitioner’ s conviction of ra pe in case No. 188326 reflects that the date of the offense was June 30, 1991. The indictment, however, reflects a date of June 30, 1990. Moreover, the victim testified during trial that the rape occurred on June 30, 1990. When there is a conflict between the judgment and the transcript, the transcript controls. State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1 991); Currie v. State , No. 02C01-9701-CC-00047, 1998 WL 32684, at *2 (Tenn. Crim. App. at Jackson), perm. to appeal denied , (Tenn. 1998).

5 We note that the ju

dgment form for the

petitioner’s agg

ravated rape c

onviction in case No. 188333 reflects an original sentence of eight years in the Department of Correction. However, the transcript of the sentencing hearing reflects that the trial court imposed a sentence of twenty-five years. As noted above, when there is a conflict between the judgment and the transcript, the transcript controls. Moore , 814 S.W.2d at 383; Currie , No. 02C01-9701-CC-00047, 1998 WL 32684, at *2. In any case, on direct appeal, this court reduced the pet

itioner’s sentenc

e in that case to six

teen years inca

rceration in the

Department. 4 June 30, 1990. 4 The trial court imposed an effective sentence of one hundred and sixty-five years (165) in the Tennessee Department o f Correction. 5
On direct appeal, this cour t briefly summarized the facts adduced at trial: [T]he record reveals that the appellant’s various offenses were part of a common scheme or pl an to burglarize, r ob and rape single women who lived within walking distance of the place where he wor ked. The offenses had several distinctive character

istics. In each case, the victims lived in the ground floor of an apartment or duplex and the appellant entered through a glass window, although in one case he entered through a g lass patio door. The appellant did not enter any r esidence by breaking open a front or back door. The appellant s elected victims who did not have a man or other adul t at home. In each case, the victims lived alone or with their c hildren. The appellant committed similar crimes against each victim. He was convicted of burglary of every victim’s home. He was convict ed of robbery or armed robber y of five victim s. He was con victed of rape or a d erivative offense such as attempted rape of six v ictims. Some of the offenses had additional characteri stics which made them particularly unusual . For example, most of the victims reported that the appellant used a towel to cover his face or t hat of his vi ctim when h e raped them. Steele , No. 03C01-9207-CR-233, 1993 WL 415836, at *1.6 Again, with respect to PM, the petitioner was convicted of first degree burglary and aggravated rape. 5

The transcript of the trial pr oceedings includes the follo wing testimony. PM testified that on November 17, 1987, she was living with her son in a duplex in the Avondale area of Chattanooga.She had locked the doors and g one to bed when she was awake ned by “pats” on her ches t. The room was very

dark, but she was able to discern a man standing above her. He was holding a knife in h is hand and threatened to cut her throat i f she did not remain silent. H e then ordered her to remove her clothing and proceeded to rape her. PM’s assailant then inquired if she had a gun or money. She remov ed money from her purse and surr endered it to the man. Despite the darkness, PM was able to describe the man as black, with an average build, approx

imately five feet and ten inche s tall, wearing pants, a shirt, and a towel around his head and face. Despite the towel, she was able to see that he had a “close haircut.” H e also appeared to be left-handed. F inally, she stated that he smell ed as if h e work ed in a g as stati on. Fol lowing the assa ult, the

intrud er left the bedroom, indicating that h e was “going to tak e a piss,” and would r

eturn. PM remained in the bedroom until she was reasonably cer tain that he had departed her home. 6
CM testified that on January 3, 1988, she was liv

ing with her son in

a duplex in Chattanooga. The State’s proof revealed that CM’s duplex was located in an area in which the poli ce were investig ating activities b y an unknown indiv

idual referred to at that time as the “ towel rapist.” On the night in question, C M was sleeping with her s

on when she was awak ened by a man placing his hand over her mouth and nose. The man threatened to hurt her son if she did not get up from the bed. Her assailant then forced her down the hallway into the living r

oom, where he raped her. The man was armed w ith a knife and held the knife to her throat during7 As noted above, with respect to CM, the petitioner was convicted of first degree burglary, armed robbery, and aggravated rape.

8 As to EP, the petition

er was convicte

d of first degree

burglary, attemp

t to commit armed robbery, and assault with intent to commit rape. 6 the assault. Her house w as dark, but CM was ab le to describe her assail ant as black, neither fat nor thin, w ith very little

hair or no hair. CM further recalled that, when standing, her head w as at the same level as his chest. She testified that she is five feet and one inch tall.She remembered that her assail ant was holding the knife in his left hand. Finally, CM stated that the assailant left grease ma rks with his hands on the wall of her apartment.

Following the rape, CM’s assailant threatened to hurt her or her son if she did not remain still. He then left the living room, and CM heard him remov ing coins from a can she kept in another room. She subsequently di scovered that several silver

coins and a camera were mi ssing from her home. 7
EP testified that on July 26, 1989, she was living with her daughter i n a duplex in the Avondale ar ea of Chattanooga. She had gone to bed when she was awakened by a man placing his hand over her mouth. H e threatened to hurt her or her child if she screamed. She felt a sharp object against h er neck. He told her he was going to “f---” her and then inquired if she had any money. When she to ld him she did not have money and show ed him her empty purse, he beg an to touch her and remove her clo thing. EP inform ed him that she is disabled and t hat her legs “were not for doing anything like this.” When the man fe lt her legs, he ceased his assault, apologized, and left. Although the house wa s very dark, EP w

as able to testify that the man was approximately five feet and seven or nine inches tall, his body felt heavy on top of hers, and he was wearing “cloth or something” on his head. 89 Again, with respect to DM, the petitioner was convicted of first degree burglary, armed robbery,

and aggravated

assault. 7 DM testified that, on July 26, 1989, she was liv

ing with her husband and three children in a duplex in the Avondale area of Chattanoo ga. Testimony at trial revealed that her residence was no more than six blocks from EP’s home. DM’s husband was a truck driver and was away from home for long periods of time. He was away from home on the n ight in question. DM had gone to sleep when she was awakened by a man standing next to her bed. He immediat ely “straddled” her on the bed, and she began to strug gle. She testified, “I w as really fighting

and screaming real loud. ... seems like they had something over my face, I can’t remember, I don’t know. But whoever it was hit me in my eye and then they ran.” DM subsequently dis

covered a butcher knife from her kitchen in her bed. She testified that, when she had g one to sleep that night, the k nife had been in her kitchen. DM also disc

overed that a rifle was

missing from her home. At the t ime of the assa ult, DM’s h ouse was da rk, but sh e was able t o describ e her assa ilant as f ive feet an d eight inc hes tall, with a medi um build . Accordin g to DM, he “d idn’t have that much hair .” She also recalle d that her assail ant did not app ear to be wearing a shirt. 9

ES testif ied that on Octob er 8, 1989 , she was livi ng with her t wo daughters in a duplex i n Chattanooga. The State establis hed that the duplex was located in the same area in w hich the so called “tow

el rapist” was oper

ating. ES had gone to bed and was awak ened when the door to her bedro om opened. The intruder immediately thr eatened to kill her if she did not remain silent. He order ed her to remove her clothes and then raped her. During the assault, the assailant he ld a “box cutter” to her throat. Afterwards, he ask ed if she had money. When she indicated that she did not, he left the bedroom . He told her that he would kill her if10 As to ES, the petitioner was convicted of first degree burglary, armed robbery, and aggravated rape.

11 The petitioner was convicted of the aggravated burglary of SB’s home. 8 she called the police. Although her house was dark, DM was able to testi fy that her assailant was a black man with an average hei ght and medium build and was wearing a towel on his head. She further testified that the assailant had “aver age” hair, similar to the petitioner’s hair at trial . Following the i ncident, she discovered that her child’s piggy bank, filled with pennies, had been removed from the house and left outside. 10

SB testified that on January 21 , 1990, she was livi ng by herself in a duplex in Chattanooga. She had gone to her bedroom and wa s watching the television. She had lock ed the door to her bedroom and had plac ed her telephone in the bed with her. At s ome point, she heard a noise in th e hallway. She immediately called the pol ice. The police arriv ed in approximately fiv

e minutes. At that time, she noticed that a “c eramic dog bank,” filled w ith Canadian money, was missing from her home. SB nev er saw the intruder. However, she testified that she recognized the petiti oner at trial, because he li ved in the same neighborhood. 11

SS testif ied that on June 2 4, 1990, she was livin g with her two daughters in a duplex i n the Avondale area of Chattanoog a. She had gone to sleep when she was awakene d by a man holding h is hand over her mo uth and pressin g a screw driver t

o her neck. Her assaila nt told her that he would not harm her if she remained silent. He asked i f she had any money. She informed hi m that she had $75.00 i n anothe r room. At that poin t, he bega n to fon dle her an d tried to remove her pants. SS grabbed the sc rew driver and st abbed him twice close to the collarbone. Sh e did not observe any blood. She sta ted, “I felt like I hit him enough12 As noted earlier, with respect to SS, the petitioner was convicted of aggravated burglary, aggravated robbery, and attempted rape. 9 to, you know, kinda hurt him a little b ut not too much .” SS then began s creaming, and her assailant ran out of the bedr oom. Although her house was dark, SS was able to describe her assai lant as a black man with short hair. He was wearing “some kind of cap on his head.” H e was taller than she w as and had a medium build. He was wear

ing pants but did not appear to be wearing a shirt

. Subsequently, she disco vered that the intruder had taken approximately fifteen dollars and some jewelr y from her home. 12
Finally, JP testified that on June 30, 1990, she liv ed with her daughter in a home in the Avondale area of Chattanooga. She had gone to her bedroom to watch television w

hen she heard a noise. She wa s leaving her bedroom t o investigate when “

this thing came over my head.” A man pushed her back int o her bedroom and told her that he woul d “cut” her if she did not r emain silent. He asked if she had any money, and she gave him one hundred and fif ty dollars. He also retrieved some jewel ry from her dresser. The i ntruder warned JP not to r emove the cloth from her head, but she rais ed the cloth a small amount and w as able to see him. She testified that there w as enough light to see her assailant. Her assail ant, however, was not aware that she could see hi m and proceeded to rape her. She observed him closely

for approximately fiv

e minutes. She described her as sailant as a black man with a receding hairline. He was wearing a dark blue or black work uniform with a white an d red name tag . Howeve r, she could not discern

the name on the tag. As he was l eaving the bedroom, he asked her if she had a gun. When she told him that she did not, he o rdered her to remain stil l and indicated that he was going “to tak

e a pee.” The intruder did not r eturn. JP testified that soon after the incid ent, on t he same d ay, she po sitively ide ntified the petit ioner dur ing a show-13 Again, as to JP, the petitioner was convicted of aggravated burglary, theft of property, and rape. 10 up identification procedure at the hospital. She also positi vely identified the petitioner at trial, and c onfirmed that the clothing remov ed from the petitioner following his arres

t was the same clothing worn by her assai lant. 13
Harold Jackson, Jr., an officer with the Chattanooga Police Department, testified that he w as en route to JP’s residen ce on June 30, 1990, when he observed the petitioner running down th e street four or five block s from JP’s home. The police subsequently determined that the pe titioner matched JP’s descri ption of h er assa ilant, and the police a pprehen ded the petition er one ha lf of a mile from JP’s home. The petitioner was wearing bl ue work clothes wi th a name tag trimmed in red. The State’s pr oof revealed that, at the time of his arrest, the petitioner worked at an automobile parts business. The pol ice determined that he both worked and lived in the vicinity of al l eight incidents. M oreover, at the time of his arrest, the petitioner had two small scars on his upper torso near the col lar bone. Finally, Larry Swafford, an officer with the C hattanooga Police Department, t estified that the petitioner is left-ha nded.

William Van Atta, a fingerprint special ist with the Federal Bureau of Investigation, testified that latent fingerprints or palm prints were r ecovered from the scenes of all eight incide nts. A total of twenty- six latent fingerpri nts and four latent palm prints matched those of the petit ioner. Agent Van Atta opined that there was no possibility that the fingerprints and palm print s could have been left by s omeone other than the petitioner.

Pattie Choatie, a serolog ist with the Tennessee Bure au of14 See State v. Chapman , No. 01C01-9604-CC-00137, 1997 WL 602944, at **9-12 (Tenn. Crim. App. at Nashville, September 30, 1997), perm. to appeal denied , (Tenn. 1998)(this court provided a thorough discussion of DNA and the RFLP method of DNA analysis). 11 Investigation, testified that she was able to analy ze semen samples recover ed from PM, ES, and JP. She also received a semen sample recovered from CM. However, the sample had not been stored proper ly and was not amenable to testing. Agent Choatie determined that the assai lant in the cases pertainin g to PM, ES, and JP, was a “non-secretor. ” She explained that eig hty percent of the population secrete an “antigen” corresponding to their blood type. This antigen is found in bodily fluids, including semen. In contr ast, twenty percent of the population do not secrete the antigen. Accordingly, the antigen will n ot be present in semen from a non-sec retor. She confirmed that the petitioner i s a non-secretor.

Agent Choatie also testified that, after conducting her tes ts, she forwarded the semen samples rec overed from PM and JP to the Fe deral Bureau of Investigation for DNA testing. She did not forw ard the semen sample recover ed from CM due to its improper s torage. Moreover, A

gent Choatie did not forwar d the semen sample recovered from ES, because she was unable to obtai n a liquid blood sample from the victim, which item is essential to DNA testing.

Audrey Lynch, a specia l agent with the DNA Analysis Unit of the Federal B ureau of Investiga tion, tes tified t hat she h ad perfo rmed a pro cedure kn own as Restriction Frag ment Length Polymorphism (R FLP) upon semen samples obtained in the cases of PM and JP. 14 Agent Lynch concluded tha t the DNA of the assailant in both cases “mat ched” that of the petitioner. She stated that one in one hundred and fift

y million people in the

black popul ation woul d produce the same result.12 B. Subsequent Procedural H istory

As previously noted, the petitioner was conv icted of all twenty-o ne charged offenses and sentenced to one hundr ed and sixty-five y

ears in the Department of Correction. On di rect appeal, the petitioner r aised the following issues: 1. Whether the trial court correctly determined that the petitioner’s cases should be consolidated. 2. Whether the trial court abused its disc retion by admitting evidence of DNA test results. 3. Whether the trial court correctly refused to provide a DNA expert at the State’s expense. 4. Whether the trial court correctly granted the State’s motion to amend the indictments. 5. Whether there was sufficient evidence to s upport the petitioner’s five robbery convictions. 6. Whether the indictmen ts charging the petitioner with first degree burglary al leged that the offenses occurred at night. 7. Whether the trial court correctly charged the jury that they should not draw any inference from the appellant’s decision to fo rego testifying. 8. Whether the trial court correctly determined that the evidence warranted a j ury instruction on common scheme or plan. 9. Whether the trial court abused its discretion in determining the hours for the trial. 10. Whether the indictments in cases No. 188343 and 188345 charged the appellant with first degree burglary and aggrava ted rape respecti vely. 11. Whether the cumulative effect of the errors depriv ed the petitioner of a fair trial. 12. Whether the trial court correctly determined the length of the petitioner’s sentences an d correctly determined that the peti tioner sh ould serve the sent ences con secutivel y. This court affirmed the petitioner’ s convictions, but modified his sentences, reducing his effective sentence to one hundred and twenty-nine (129) years incarceration in15 The petitioner has also filed two petitions for habeas corpus relief in Wayne County. In each case, this court affirmed the trial court’s denial of relief. Steele v. State, No. 01C01- 9708-CC-00105, 199 8 WL 120308 (Tenn. Crim. App. at Nashv

ille, March 18, 199 8); Steele v. State , No. 01C01-9512-CC-00409, 1997 WL 211265 (Tenn. Crim. App. at Nashville, April 30, 1997). 13 the Department. Steele , No. 03C01-9207-CR-233, 1993 WL 415836, at **8-9. The petitioner did not apply for permission to appeal to the s upreme court at that time.

On September 18, 1995, the petitioner filed the instant petition for post-co nvicti on reli ef. 15 In his petition , he all eged the following gr

ounds for

relief: 1. The petitioner received i neffective assistance of counsel at trial and on direct appeal in violation of his ri ghts pursuant to the Sixth and Fou rteenth Amendments to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. 2. At trial, the evidence w as insufficient to support the petitioner’s convictions, and this court denied the petitioner due process of law on direct appeal by faili ng to review the sufficienc y of the evidence. 3. The trial court’s failure to provide the petitioner fingerprint and DNA experts denied the petitioner his right to a fair trial as guaranteed by

the Sixth and Fourteenth Amendments to the United States Cons titution and Article I, Section 9 of the Tenness ee Constitution. 4. The trial court erroneously admitted DNA evidence obtained from the petitioner in v iolation of his rights pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. 5. The trial court denied the petitioner due process of law by admitting fingerpr

int and DNA evidence. 6. The trial court denied the petitioner due process of law by admitting testimony

concerning the show- up identification of the petitioner. 7. The trial court’s instr uction to the jury concer ning reasonable doubt violated the petitioner’s right to due process of law as guar anteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 8 of the Tennessee Constitution. Moreover, the petitioner contended that he had been d enied the opportunity to apply14 for perm ission to appeal t o the sup reme cou rt in violat ion of hi s rights to the eff ective assistance of counsel and due proc ess of law. Following the appointment of counsel and an evidentiary hearing, the post-conv iction court dismissed the petition, but recommended that the petitioner be permitted to submit a delaye d application to the supreme court for permission to appeal.

On July 30, 1996, the petiti oner filed a Notice of Appeal. The Stat e subsequently filed a motion asking this court to g rant the petitioner a delay ed appeal and to hold the instant petitio n in abeyance pe nding the conclu sion of procee dings before the supreme court. This cour t granted the State’s motion on July 22, 1997. The petitioner filed an applicati on for permission to appeal to the supreme court, which was denied on Apr il 20, 1998.

C. Post-Conviction Evidentiary Hearing

The post-conviction court conducted an evidentiary hearing in the petitioner’s case on July 1, 1996. The petitioner testified at the hearing. He testified that he was represented at t rial by Lisa Mack, Paul Sorrick, and Mark Biesack, and he reiterated the arguments s et forth in his petition. D uring cross-exami nation, he conceded that, in preparation for his trial, Lisa Mack visited him at the jail “very many times” in order to d iscuss his case. Mor eover, he did not dispute “ the sincerity of [his attorneys’] effort[s].”

Lisa Mack, one of the petitioner ’s attorneys, also tes

tified at the postconviction hearing. She testified that she was app ointed to represent the petiti oner at an early stage in the trial proceedings. At some point during discov ery, she learned that the State would be introducing DNA ev idence at the petitioner’s t rial.15 Accordingly, she conducted a considerable amount of research a nd, at trial, crossexamined the State’s DNA expert with treatises documenting the unreliability of DNA evidence. The State’s expert testified that he disagreed with the treatises. Ms. Mack stated at the post-conv iction hearing that a defense ex pert would have been useful in rebutting the testi mony by the State’s ex pert. Yet, she conceded that, although Mr. Sorrick orally argued a motion for a DNA expert, she could not recall filing a written motion for a DNA expert nor any affidavit from a DNA expert demonstratin g the necessity fo r an expert. Ms. Mack a lso could not rec all filing a motion in limine asking that the DNA evidence be excluded at trial.

On cross-examination, M s. Mack stated that she unders tood, at the time of the petitioner’s tria l, that the State was not r equired to provide the petitioner a DNA expert. Ms. M ack also identified sever al pre-trial motions, s igned by the petitioner’s attorneys . The motions included: Motion for Expert Witness at State Expense; Motion for Pre-Tr ial Hearing, reques

ting a hearing “to deter mine whether forensic DNA identification is admissible based on ... FRYE v. US ;” Motion for Name of Procedure, asking the State to furnish the name of the procedure used in the DNA identification of the [petiti oner];” and Motion for Data, r equesting information concerning “the raw

population data on which co nclusions about allele freq uencies were predicated, thus enabl ing DNA identification of [the petitioner].”

Paul Sorrick also testi

fied. He conceded that he did not r equest a fingerprint expert in

the petitioner’s case. H e stated that he review ed the fingerprint evidence and concluded that an e xpert would not be useful.However, he admitted that the State’s testimony concerning the fingerprint evidence was, at times, contrad ictory.16 Mr. Sorrick further recounted that the petitioner’s cases were consolidated for trial ov er the “strenuous objection s” of defense counsel. He opined that, had the petitioner been tri ed separately for cases r elating to each of the eight different incidents, the petitioner would have been convi cted in one or two seri es of cases and “there was a reasonable chance of acquittal in the other cases.” He stated that he thought the defense team had s ubmitted a memorandum of law concerning the consolidat ion of the petitioner’s cases for trial and again observ ed that there was “strenuous argument” by the defense team ag ainst consolidation.
Mr. Sorrick also testified that he did not make an opening stateme nt in the petitioner’s case, because

I do not believe you pr

operly represent a defendant by making concessions to the State prior to their introducti on of evidenc e and making out at least a prima facie case. And I don’t think the defendant has the obl igation to make such a statement and make such concessio ns, and contrary to the beliefs of some of my colleagues, I think that probably y

ou’re treading on danger ous ground when you do make an opening statement prior to the presentation of the State’s proof. ... In an opening statement, you’re going to take positions, you’re going to make some concessions even, and I don’t think that it serv

es the defendant to do that until the State has shown its proof so that you know wher e you stand. Mr. Sorrick, therefore, requested that his arg ument be reserved until the conclusion of the Sta

te’s pr oof.
Finally, the petitioner

presented the testimony of Hal lie McFadden, an attorney employed by the local public defender’s office. She testified that, had she been representing the petiti oner, she would have fil ed a brief in response to the State’s motion and brief concerni ng the consolidation of the petitioner’s cases. She17 would have argued that she could not effectively r epresent the petitioner if the c ases were consolidated, and she would have argued that the prejudicial impact of consolidating the cases outweighed any inter est of judicial economy. She opined that the State can more easily obtain a conviction when several cases are consolidated for trial. H owever, she conceded to the court that consolidation of cases is not always contrary to a defendant’s interests.

With respect to the State’s DNA evide nce, Ms. McFadden testified that she would have filed a motion seeking the appointment of a DNA expert. She would have attached to the motion an affidav it attesting to her lack of expertise in the science of DNA. She also w ould have attempted to contact a D NA expert in order to obtain an affidavit concerning the expert’s qualific

ations, his or her fee, and the amount of time required for any additional testing or evaluation of the State’s evidence. She stated that she would have further attache d literature concerning

the unreliability of DNA evidence. She concluded that she would have engaged in similar preparation w

ith respect to any finger print evidence.
II. Analy

sis A. Ineffective A

ssistance of Counsel The petitioner first challeng es the performance of his counsel at t rial and on direct appeal. We initially not e that the petitioner bears the burden in postconviction proceeding s of proving the alleg ations in his petition by clear and convincing evidence. Tenn. Code. Ann. § 40-30-210(f) (1997). In othe r words, if afforded a post-conviction ev identiary hearing, a

petitioner must do more than merely present evidenc e tending to show incompete nt representation. Bilbrey v. State , No. 03C01-9711-CR-00498, 1998 WL 827080, at *2 (Tenn. Crim. App. at Knoxville, December

1, 1998), perm. to appeal denied , (Tenn. 1999). Ad ditiona lly,18 the findings of fact of the post-conviction court are a fforded the weight of a jury verdict and are conclusive on appeal unless the evidence in the record preponderates against those find ings. Henley v. State , 960 S.W.2d 572, 578-579 (Tenn. 1997), cert. denied , U.S. , 119 S.Ct. 82 (1998); Bates v. State , 973 S.W.2d 615, 631 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1997), cert. denied , U.S. , 118 S.Ct. 2067 (1998).

The post-conviction court in this case concluded that the petitioner had received the effective assi stance of counsel. According ly, this court must dete rmine whether the evidence pr eponderates against the post-conviction court’s find ings (1) that counsel’s performance w as within the range of co mpetence demanded of attorneys in criminal

cases, Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and (2) that any deficient perfor mance did not prejudice the petitioner. Stricklan d v. Washington , 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069 (1984). See also Henley , 960 S.W.2d at 579-580; Powers v. State , 942 S.W.2d 551, 557 (Tenn. Code. Ann. 1996). Courts need no t address these components in any particular order or even address both if the petitioner fails to meet hi s burden with respect t o
one. Henley , 960 S.W.2d at 580.

In evaluating counsel’ s performance, this court shoul d not examine every allegedly

deficient act or omission i n isolation, but rather in the context of the case as a whole. State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The primary concern of the cour t should be the fundamental fairness of the proceeding whose resul t is being challenged. Id. (citation omitted). Therefore, this court should not second-gues s tactical and strategi c decisions by defense counsel

. Henley , 960 S.W.2d at 579. Instead, this court must rec onstruct the circumstances of counsel’s challenged conduct and evaluate the condu ct from counsel’s19 perspective at the time. Id

. See also Irick v. State , 973 S.W.2d 643, 652 (Tenn. Crim. App.), perm. to appeal denied , (Tenn.), cert. denied , U.S. , 119 S.Ct. 219 (1998). Moreover, the fact that a strategy or tactic failed or hurt the defe nse does not alone support the clai m of ineffective assistance of counsel. Thomps on v. State , 958 S.W.2d 156, 165 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1997); Dickerson v. State , No. 03C01-9710-CR-00472, 1998 WL 619110, at *1 (Tenn. Crim. App. at Knoxv ille, September 16, 1998), perm. to appeal denied , (Tenn. 1999).
In sum, a defendant is not entitled to perf ect representation, only constitutionally adeq uate representation. Denton v. State , 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). Thus, w e have observed: In order to pass constituti onal muster, counsel need not discover every possible item of information before trial, make every possible objection during trial, or use every trial tactic whic

h petitioner would in r

etrospect, now require ... . Allen v. State , No. 960, 1991 WL 154520, at *2 (Tenn. Crim. App. at K noxville, August 14, 1991).

If the petitioner establishes that counsel’s perfo rmance was not within the requisite range of competence, his task is not complete. He must also demonst rate a rea sonable probabil ity that th e result o f the pro ceeding wo uld have been different but for the defective performanc e of counsel. Henley , 960 S.W.2d at 580. “A court must consider the totality of the evidence before

the judge or jury. Som e of the factual findings will have been unaffected by the errors, and factua l findings that were affected will hav

e been affected in different ways. Some errors will hav

e had a pervasive effect on the inferences to be drawn from the ev idence, altering the entire evidentiary

picture, and some will

have had an isolated, trivial e

ffect ... .”16 This court’s opinion on direct appeal seems to reflect that this motion was not included in the re

cord at that stage

of the proceedin

gs.
17 At the post-conviction hearing, the petitioner submitted the motions listed above. We note that the motions do not contain a stamp by the Clerk’s Office of the Hamilton County Criminal Court, reflecting receipt of the motions in that office. The motions are not included in the technical transcript of the trial court proceedings. Nevertheless, the transcript of the July 11, 1991, pre-trial hearing reflects that the prosecutor received the motions. Moreover, both the trial court and the parties addressed the motions at this hearing. 20 Id. (citations omitted). With these gener al principles in mind, w e address the petitioner’s specific allegations of ineffective assistance of counsel.

1. DNA Evidence The petitioner first argues that his trial counsel w ere ineffective for failing to demonstrate to the tr ial court a particular

ized need for a DNA exper t. The record reflects that, on Jul y 9, 1991, defense counsel sent the following pre-tri al motions to the assistant dist rict attorney gener al prosecuting the petiti oner’s case: a motion requesting a DN A expert at the State’s ex pense; 16 a motion challenging the admissibility of the State’s DNA evidence; a motion requesting the name of the DNA test used by the State’s ex pert; and a motion requesting “the raw population data on which conclusions about allele frequencies were predicated, thus enabling DNA identification of this Defendant.” S ubsequently, at a hearing on July 11, 1991, the petitioner’s counsel orally reiterated their request for the appointment of a DNA expert. The court denied the petitioner’s request, s tating that he possessed no authority to provide

the petitioner such an expert at the State’s expense. The prosecutor then observed that the State’s expert w as going to conduct a semi nar prior to trial to educate

both the prosecutor and defense counsel concerning DNA. 17
At the post-conviction hearing, the court observed that defense counsel had “tried their best to get me to have, to al low them to have an expert, too, and I turned them down on that.” The court noted tha t, at the time of the petitioner’s21 trial, Tennessee law di d not aut horize the appo intment

at the St

ate’s ex pense of a DNA expert in criminal trials, and that it had denied the petitioner’s motion on this basis. As noted earlier, defense attorney Lisa Mack testified at the post-convi ction hearing that she did not submit to the trial court an affida vit from a DNA expert explaining the need for a defense expert. She understood at that time that the State was not required to pr

ovide a DNA expert.
On direct appeal, this court addressed whether or not the trial court correctly denied the pet itioner’s motion for a DNA expert. This court concl uded that, at the time of the petitioner’s moti on, there was no statutory right to a state-funded expert in non-capital c

ases. Steele , No. 03C01-9207-CR-233, 1993 WL 415836, at *3. Moreover, we concluded that the petitioner’ s counsel had not demonstrated that the services wer

e necessary to his defense. Id. Again, the question now before this court is whether couns el’s failure to demonstrate the necessity for a DNA ex pert was constitutionally defici ent performance.

The petitioner relies upon Ake v. Okl ahoma , 470 U.S. 68, 105 S.Ct. 1087 (1985), in support of his c ontention. In Ake , the Supreme Court held that, when an indigent defendant demonstr ates to a trial judge that his sanity wil l be a significant issue at tr

ial, the State must provi de the defendant access to a competent psychiatrist. 470 U. S. at 83, 105 S.Ct. at 1096. How ever, at the time of the petitioner’s trial i n this case, it was unc lear that the Supreme Court’s ruling in Ake should be extended to the prov ision of experts other than a psychiatrist in the context of a defendant’s claim of insanity, and it was unclear whether Ake should be extended to non-capital cases.

Prior to Ake , our supreme court had held that an indigent defendant22 did not have a right, und er either the federal or the s tate constitutions, to the services of any expert at the State’s expense. State v. Willia ms , 657 S.W.2d 405, 411 (Tenn. 1983); Graham v. State , 547 S.W.2d 531, 535-536 (Tenn. 1977). Even following Ake , this court upheld in a non-capital case a trial cour t’s refusal to provide a ballistics expert

to the defendant at the State’s expens e. State v. Evans , 710 S.W.2d 530, 533-534 (Tenn. Crim. App. 1985). This c ourt distinguished Ake , in part, because the defendant in Ake was confronted with a r ebuttable presumption of sanity and because Ake was a capital case. Id. at 534. Subsequently, i n State v. Lambert , 741 S.W.2d 127, 131 (Tenn. Crim. App. 1987), this court declined to decide t he issue

of Ake ’s application in non-capi tal cases. See also State v. Harris , 866 S.W.2d 583, 585 (Tenn. Crim. App. 1992)(this c ourt cited Lambert , noting that we had previously

“expressed concern ov er the broadening of the Ake ruling to include non[-]capital cases such as the present one”).

However, following Ake and prior to the petitioner’s trial, this court noted in State v. Phillips , 728 S.W.2d 21, 24-25 (Tenn. Crim. App. 1986), a noncapital case, that a threshold showing of a denial of due process of law might entitle the defendant to the appointment of an expert at the State’s expense. In State v. Hannah , No. 224, 1989 WL 1667 7, at **1-2 (Tenn. Crim. App. at Knoxville, February 28, 1989), an unpublished case, this court acknowledged an indigent de fendant’s right in a non-capital case to expert assistance, if a denial of assistance would result in a constitutional depriv ation under the doctrines of due pr ocess and equal protection.
Nevertheless, only in 1995, in State v. Barnett , 909 S.W.2d 423, 427 (Tenn. 1995), did our supreme cour t determine that the principl es set forth in Ake were equally applicable in non-capital cases. Significantly for the purposes of this23 case, the court noted that it had never previously

considered this issue and that the court of criminal appeals had also never been required to definitively reach this issue. Id. Thus, in State v. Jacobs , No. 01C01-9601-CC-00048, 1997 WL 576493, at *2 (Tenn. Crim. App. at Nas hville, September 18, 1997),this court observed tha t, as late as 1994, Tennessee law did not provide for a state- paid DNA expert in noncapital cases, concluding that Barnettannounced a new constitutiona l rule. See also State v. Cage , No. 01C01-9605-CC-00 179, 1999 WL 30595, at *7 (Tenn. Cr

im. App. at Nashville, Januar y 26, 1999)(prior to Barnett , Tennessee law did not prov ide for the appointment of a DNA expert in non-capital cases); State v. Murray , No. 01C01-9702-CR-00066, 1998 WL 934578, at * 22 (Tenn. C rim. App. at Nashvill e, December 30, 1998)(prior t o Barnett , Tennessee law did not provide for expert assistance in non-capital cases). This court further clarified that, while Barnett , like Ake , dealt with a psychiatric expert, the new constitutional protections announced in Barnettapplied to other forms of expert assistance, including a DNA expert. Jacobs , No. 01C01-9601-CC-00048, 1997 WL 576493, at *2.

Again, it is important to reconstruct the circumstances of counsel’s performance and evaluate that performanc e from the perspective of counsel at that time. Henley , 960 S.W.2d at 579. In light of the uncertain st atus of the law at the time of the petitioner’s trial, defense counsel’s resea rch on the reliability of DNA testing, and counsel’s extensive cross-examination of the State’s expert, this court hesitates to conclude that couns el’s failure to more vi gorously pursue the appointment of a DNA expert cons tituted ineffective assistanc e of counsel. Certainly, Ms. Mc Fadden’s evaluation of defense counse l’s performance was influenced by her access to the clear guidelines se t forth in Barnett , an advantage not shared by defense counsel at the petitioner’s trial.24 In any case, the petitioner has failed to demonstrate that any deficiency of performance prejudiced the ou tcome of his trial. The petitioner’s attorney, Lisa Mack, testified at the post-conviction hearing that a defe nse expert would have been useful in r ebutting the State expert’ s testimony concerning the reliability of DNA t

esting. At the post-conv iction hearing, the petitioner further submitted articles concer ning potential problems of rel iability in DNA t esting. However, even ass uming that the law at the time of the petitioner’s trial provided for the appointment of a DNA expert i n non-capital cases, it w as unclear what “threshold showing”

would entitle a defendant to the services of an expert.Under Barnett , 909 S.W.2d at 430-431 (emphasis added), a defendant is r equired “to demonstrate by reference to the facts and c ircumstances of his particular case, that appointment of a[n] ... expert is necessary to insure a fair trial.” Thus, in Jacobs , No. 01C01-9601-CC-00048, 1997 WL 576493, at *3, this court concluded that a mere assertion that a defendant needs hi s own DNA expert t o verify the results

of the State’s testing is i nsufficient.

In this case, the petitioner seems to argue that, because the re is controversy in the scientific community concerning the degree of reliability of DNA testing, he

was entit led to a DNA

expert to e

xplain to the jury the

potential pr

oblems associated with DNA t

esting. At the post-conv iction hearing, the petitioner did not point to any deficiency i n the testing performed in his case , nor does he cite any deficiency in his brief on appeal. In essence, the petitione r’s argument would require the appointment of a DN A expert in every case in which the State planned to introduce DNA test results. The petitioner cites no authority in this state for this proposition, nor have w e discovered any. But see generally , John Devlin, Genetics and Justice: An Indigent Defendant’s Right to DNA Expert Assistance , 1998 U. Chi. Legal F. 395, 397 (argui ng that an indigent defendant char ged with rape or murder18 As we already observed, Barnett was decided after the petitioner’s trial. Nevertheless, to the extent that there existed a right to expert assistance in non-capital cases prior to Barnett , we doubt that it was broader than the right defined in that case. 25 should receive DNA expert assistance whenever the prosecution plans to use DNA evidence against him). Applying the principles set forth in Barnett , the petitioner has failed to demonstrate in these proceedings the particular facts and c ircumstances of his case which required the appointment of a DNA expert. In other words, the petitioner has failed to establish that, with additional eff ort, his attorneys could have shown a particulariz

ed need for a defense expert. 18
Moreover, we agr

ee with the post-conv

iction court’s observ

ation that the State’s evidence in the se cases, excluding the DNA evidence, was overwhelming. The DNA evidence only related to the following incidents: 1. First degree burglary and aggravated rape of PM in cases No. 188342 and No. 188345. 2. Aggravated burglary, theft of property, and rape of JP in cases No. 188327, No. 188325, and N o. 188326. The State introduced testimony that fingerprints matching the petitioner’s had been recovered from the scenes of all eight incidents underlying the petitioner’s indictments, including the incidents relating t o PM and JP. Seven vi ctims, including PM and JP, were able to pr ovide descriptions of the as sailant. The descriptions were roughly si milar to one another and matched the petitioner’s appearance. With respect to the incident involving JP, the petitioner was observed immediately following the incident running down the street four blocks away from JP’ s residence. JP positively identified the petitioner both in a show-up identification procedu re immediately

following

the incident and at tria l. Testimony by PM and an other vic tim, CM, suggested that the as sailant was left-handed. The pe titioner is left-handed. The petitioner had scars in a location where one of the v ictims had stabbed her assailant with a scr

ew driver. The petitioner lived and wor ked in close proximity

to19 Following the petitioner’s trial and the trial court’s denial of the petitioner’s Motion for New Trial, th

e petitioner submit

ted a Motion to Reco

nsider. The petiti

oner attached to his motion additional articles concerning the reliability of DNA testing. At a hearing on April 28, 1992, the trial court concluded:

[T]here is merit in what you have to say ... . And you raise a very valid issue about genetic testing. And not only in the National Law Journal has there been some question about the testing, the accuracy of it, but in the general news media. I think Newsweek had something about it recently ... . If the only proof against Mr. Steele was DNA, I would grant your motion to reconsider. But there is too much other proof pointing to his guilt that corroborates the genetic testing. 26 the locations of all eight i ncidents. An expert in s erology with the Tennessee Bureau of Investigation testified that, with respect to the incidents involvi ng PM, JP, and another victim, ES, she w as able to establish that the Petitioner was within the twenty percent of the population who could have committed the crimes. Moreover, as noted earlier, all eight incidents possessed similar characteristics strongly suggesting a common perpet rator. Accordingly , it is doubtful that the prov ision of an expert to testify concer ning the reliability

of the DNA testing woul d have changed the results in any of the petitioner’s cases.

Nevertheless, the petitioner also alleges that his counsel were ineffective for failing to file pre-trial motions objecting to the admission of the DNA evidence. However, the record suggests that defense counsel in fact filed a pre- trial motion challenging the admissibility of the DNA evidence. Moreover, the court observed at the post-conv iction hearing that Ms . Mack and Mr. Sorric k had brought to his attention literature concerning the unreliability of DNA testing and “we did have a hearing on it and [ Ms. Mack] did try to convince me that the manner and the test, the way the tests were conducted was unreliable. She did not succeed in convincing me.” 19

Accordingly, the r

ecord that is before this cour t does not support the27 petitioner’s allegation. Moreover, the petitioner has failed to include in the record before this court the transcr ipt of the trial court heari ng on the admissibility of the DNA evidence. The petitio ner carries the burden of ensur ing that the record on appeal conveys a fair, ac curate, and complete

account of what has transpir ed with respect to those issues that are the bases of appeal. Tenn. R. App. P . 24(b). See also Thompson v. State , 958 S.W.2d 156, 172 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1997). The failure to do so r esults in a waiver

of such issues. Id

.
Finally, this court on direct appeal determined that the DNA evidence was admissible in the petitioner’s trial. Steele , N o. 03 C0 1- 92 07 -C R- 23 3, 19 93 WL 415836, at **2-3. According ly, any deficiency of counsel in this respect w as not prejudicial. In effect, this i ssue has been previously determined and may not be relitigat ed in the se procee dings, eve n if in the guise of a n allegat ion of in effect ive assistance of counsel. Tenn. Code. Ann. § 40 -30-206(h) (1997).

2. Fingerprint Evidence The petitioner next appears to argue that his trial counsel were ineffect ive for

failing to file a pre-tr ial moti on requ esting

the appo intment

of a fingerprint expert and for failing to challenge the admission of fingerprint ev idence. Because the petitioner’s argument consists of one f ragment of a sentence in his brief, we regard this issue as waived under Ct. of Crim. App. Rule 10(b).

Moreover, the petitioner ’s trial attorney te

stified that he review

ed the fingerprint evidence and determined that a defense expert w ould not be useful. Again, assuming that the l aw at the time of the petitioner ’s trial provided for

the appointment of a fingerprint expert in non-capital cases, th e petitioner has utterly failed to demonstrate that his attor ney’s exercise of pr

ofessional judgment was28 erroneous.
In order to demonstrate a parti cularized need for a finger print expert, the petitioner did attempt to establish at the post-con viction hearing that the State’s fingerprint expert pr

ovided contradictory

testimony. Howev

er, the record reflects that the sole contradiction i n the expert’s testimony was between his ini

tial testimony that he generally used at least six to eight points of comparison in comparing latent and ink fingerprints and hi s subsequent testimony that , in this case , he probably used at least ten points of compari son on each print. Both the State’ s fingerprint expert and an identification technician with the Chat tanooga Police Department testified that there is no standa rd number of comparison points in the field of fingerprint identification. Therefore, it is unclear f rom the record before this court what testimony or assistance an expert could have contributed to the petitioner’s defense.

It is simil arly uncle ar on what b asis def ense cou nsel shou ld have objected to the admission at tr ial of the fingerprint evi dence. The burden is upon the petitioner in post-conv

iction proceedings to es tablish the allegations in his petition. This issue is devoid of meri t.

3. Consolidation of the Petitioner’s Cases The petitioner also alleges that his counsel were ineffective for failing to adequately research and object to the consolidation of the petitioner’s cases. However, on direct appeal, this court determined that the trial court correctly consolidated the petitioner’ s cases. Steele , N o. 03 C0 1- 92 07 -C R- 23 3, 19 93 WL 415836, at **1-2. Thus, any defici ency of counsel in this r espect was not prejudicial. Once again, the petitioner is attempting to assert an issue that has bee n previously29 determined on direct appeal by characterizing th e issue as ineffective assis tance of counsel. Tenn. Code. Ann. § 40-30-206(h). This issue is not cognizable in the se proceedings.

4. Jury Sequestration The petitioner next alleg es that his counsel wer e ineffective for “waiving sequestration of the jury in such a high profile case which was widely publicized in the media both prior to and during trial.” However, other than this single sentence, the petiti oner offers no further argument nor c itations to relevant authorities or even the r ecord in this case. The petitioner’s presentation of this issue is patently inadequate and is waived pursuant

to Ct. of Crim. App. Rule 10( b). In any case, this issue i s without merit.

The record reflects that the petitioner waived his right to a sequestered jury on the condition that the trial court poll th e jurors each morning i n order to determine if they had been expos ed to media coverage. See Jones v. State , 915 S.W.2d 1, 2 (Tenn. Crim. App. 1995)(a defendant may w aive his right to a sequestered jury). The record reflects that, w ith the exception of the final day of trial, the trial court complied with this condition. With respect to the final day of trial, the record does not contain any objection by defense counsel or request that the jurors be polled. Nevertheless, the record reveals that, throughout the trial, the court repeatedly instructed the jurors to avoid any media coverage of the trial. Nothing in the record suggests th at the jurors failed to comply with the court’s ins

truction. The record contain s references b y the trial court to n ewspaper and tel evision coverage of the trial. However, no articles or recordings are included in the record in this appeal.30 At the po st-convic tion hea ring, the p etitione r testifi ed that h is attorn eys discussed with him sequestration of the jury, but that he did not understand their advice. In contrast to his petition for post-conviction relief and his brief on ap peal, the petitioner orally argued to the trial court that failure to sequester the jury possibly “rushed” their decisi ons. He offered no proof to support this assertion or to demonstrate the exposure of any juror to media coverage of his trial. Moreover, neither the petitioner nor the State questioned the trial attorne ys concerning this issue. In lig ht of the l ack of pr oof, we c

annot co nclude t hat coun sel’s w aiver of a sequestered jury w

as an irrational or ir

responsible strategy

decision. Willi ams v. State , Nos 155, 1988 WL 79770, at *1 (Tenn. Crim. App. at K noxville, August 1, 1988). Additionally, i n these post-conviction proceedings the petitioner carried the burden of demonstrating prejudic e resulting from counsel’s recommendation that he waive his rig ht to a sequestered jury

. See, e.g., State v. Tolbert , No. 03C01-9707- CR-00325, 1998 WL 694931, at *12 (Tenn. Crim. App. at Knoxville, October

7, 1998), perm. to appeal denied , (Tenn. 1999). The petitioner has failed to sat isfy this burden.

5. Opening Statement

The petitioner also complains that his counsel failed to make an opening statem ent. However, Mr. Sorric k testified at trial that his dec ision to forego an opening statement was a ta ctical decision to av

oid granting concessi ons to the State or a dopting a ny positio ns prior to hearing th e State’ s proof. We ha ve previously held a w

aiver of an opening statement t o be a valid strategy

decision. State v. McCoy , No. 01C01-9603-CC-00 109, 1997 WL 137422, at *3 (Tenn. Cr

im. App. at Nashville, March 27, 1997). Moreover, this court has previously acknowledged the potential pitfalls of opening stateme nts:

Either overstatement or misstatement during this presentation, despite curative efforts, may have adverse31 effects: “The trial attorney shoul d only inform the jury of the evidence that he is sure he can prove ... . His failure to keep [a] promise [to the jury ] impairs his personal credibility. The jur

y may view uns upported claims as an outright attempt at misrepr esentation.” State v. Zimmerman , 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991)(cita tion omitted). Thus, a decision to for ego argument to the jury until after the presentation of the State’s proof will not dictate a finding of def icient performance. Moreover, contrary to the petition er’s assertion, the rec ord before this court does reflec t that defense counsel presented a closi ng argument to the jury . Accordingly, the petitioner has failed to demonstr ate any prejudice aris ing from counsel’s tactic al decision. This allegati on is without merit.

6. Jury Instruction on Reasonable Doubt The petitioner next asserts that his counsel were ineffective in failing to object to the trial court’ s instruction on reasonabl e doubt, which referred to the need for “mor al certai nty” of th e petitio ner’s guil t. The tri al court in structed the jury:

Reasonable doubt is that doubt eng endered by an investiga tion of a ll the pro of in the case and an inabil ity, after such investigati on, to let the mind rest easil y as to the certainty of guilt.Reasonable doubt does not mean a captious, possible or imag inary doubt. Absolute cer tainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is requi red as to every propo sition of proof requisite to constitute

the offense.

This is a correct statement of the burden of proof required for cr iminal trials in Tennessee. State v. Hall , 976 S.W.2d 121, 159 (Tenn. 1998), cert. denied , U.S. , S.Ct. (1999); State v. Bush , 942 S.W.2d 489, 520-521 (Tenn.), cert. denied , U.S. , 118 S.Ct. 376 (1997); Scott v. State , No. 01C01-9709-CR00400, 1999 WL 23 3643, at **9-10 (Tenn. Crim. App. at Nashville, April 20, 1999);32 State v. Cowart , No. 03C01-9512-CR-00 402, 1999 WL 5174, at * 23 (Tenn. Cri m. App. at Knoxville, J anuary 8, 1999); Lane v. State , No. 02C01-9604-CC-00133, 1998 WL 756746, *7 (Tenn. Crim. App. at Jackson, Oct ober 30, 1998), perm. to appeal denied , (Tenn. 1999). Accordingly, the petitioner has failed to establish his allegation of ineffective assi stance of counsel.

7. Sufficiency of

the Evidence Finally, the petitioner argues that counsel were ineffective on direct appeal in failing to chall enge the sufficiency of the evi dence supporting all of the petition er’s convic tions. Co unsel cho se to chal lenge onl y the petit ioner’s f ive convictions for robbery . However, there i s no constitutional requi rement that an attorney argue ever

y issue on appeal. Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993). The determination of w hich issues to present on appea l is a matter which addresses itsel

f to the professional judgment and sou nd discretion of appellate counsel. Id.

“Legal contenti ons, like currenc y, depreciate thr ough over-issue ... . [E]x

perience on the bench convinc es ... that multiplying assi gnments of error will dilute and weaken a good case and w ill not save a bad one.” Id. (citation omitted). Fol lowing a thorough r eview of the record, w

e must conclude that pet itioner’ s counsel provided e ffecti ve assista nce on ap peal. Mor eover, we conclude that any deficiency of performance did not prejudice the petitioner. As noted earlier, the evidence at t rial was overwhelming.

B. Waiver and Previous Determination

Post-conviction rel ief is generally not av ailable to litigate i ssues that have been waived or previously determined. Tenn. Code. Ann. § 40-30-206(f), (g), and (h). We conclude that the petitioner has waived the followi ng issues by failing to raise them in his motion for new trial or on direct appeal: the trial court denied him20 In asserting this du e process claim,

the petitioner note

s that his trial coun

sel failed to object to the introduction of this testimony. However, nowhere in the petitioner’s brief does he allege that this

omission constituted

ineffective as sistance of couns el.

21 As to any challenge to the sufficiency of the evidence supporting the petitioner’s convictions for r

obbery, this cour

t previously deter

mined this issue on dir

ect appeal.

22 On direct appea

l, this court noted th

at the standard of

admissibility for sc

ientific evidence was governed by Tenn. R. Evid. 702 and 703, and not by the test set forth in Frye v. United States , 293 F. 1013 (D.C.Cir . 1923). Recently,

our supreme cour

t clarified this standard in McDaniel v. CSX Transportation, Inc. , 955 S.W.2d 257, 263-265 (Tenn. 1997), cert. denied , U.S. , 118 S.Ct. 2296 (1998). See also State v. Begley , 956 S.W.2d 471, 475 (Tenn. 1997). The supreme court agreed that the adoption of the rules of evidence has superseded the general acceptance test of Frye , although the general acceptance of evidence in the scientific community remains a factor to be considered. See also State v. Chapman , No. 03C01-9802-CC-00080, 1999 WL 274911, at *6 (Tenn. Crim. App. at Knoxville, May 5, 1999)(the admissibility of expert testimony concerning DNA analysis is governed by the standards set forth in Tenn. R. Evid. 702 and 703). The RFLP method of DNA testing employed in this case has been approved both under the Frye test and under Tenn. R. Evid. 33 due process of law by admitting fingerprint ev idence; the trial court deni ed him due process of law by admitting testimony concerni ng the show-up identific ation of the petitioner; 20 the trial court denied hi m due process of law in ins tructing the jury on reasonable doubt; insufficient ev idence supported the petitioner ’s convictions of the charged offenses. 21

With respect to the petitioner’s chall enge to the sufficiency of the evidence, the petitioner ap pears to further argue that th is court committed error on direct appeal by failing to address sua sponte the sufficien cy of the evidence supporting all of the petiti oner’s convictions. Initially, we note that, in non-capital cases, it is an exerc

ise of this court’s discr

etion to recognize pl ain error pursuant to Tenn. R. Crim. P. 52(b). In any case, we again agree with the trial court’s observation that the proof in the petitioner’s cases w as overwhelming.
Additionally, the petiti oner’s challenge to the tr ial court’s admission of DNA evidence was previously determined on direct appeal and is not cognizable in these proceedings. 22 With respect to the trial court’s denial of a DNA expert, this702 and 703. State v. Harris , 866 S.W.2d 583, 586 (Tenn. Crim. App. 1 992); State v. Chapman , No. 01C01-9604-CC-00137, 1997 WL 602944, at **12-13 (Tenn. Crim. App. at Nashville, September 30, 1997), perm. to appeal denied , (Tenn. 1998). 34 court addressed the trial court’s denial on direct appeal. However, this court’s decision was filed pri or to the supreme court’s decision in Barnettand prior to subsequent de cisions in this cou rt interpreting Barnettto apply to experts i n fields other than psychiatry . As noted earlier, this court has previously

held that the supreme court’s decision i n Barnettannounced a new constitutional rule. Thus, arguably, this iss ue was neither capable of prev ious determination nor wa ived. Tenn. Code. Ann. § 40-30-206(g)(1).

Yet, it is unclear that

the rule announced in Barnettshould be retroactively appl ied in post-convicti on proceedings. In Barnett , our supreme court rested its holding upon the federal constitution. Barnett , 909 S.W.2d at 431 (“[w]e conclude that when a defendant in a non-capital case demonstrates to the trial court in an ex parte proceeding that his sanity at the ti me of the offense is to be a significant factor at tria l, the federal constitution , at a minimum, requires the State to provide the defendant access to a ... psychiatrist”). Therefore, we must ap ply federal retroactivity

analysis. Meadows v. State , 849 S.W.2d 748, 754 (Tenn. 1993). A new rule of federal c onstitutional law is

only applied retroacti

vely to cases on collateral review

if (1) the rule places cer tain kinds of primary, pr ivate, individual conduct beyond the power of the state to proscribe, or ( 2) the rule requires the observance of procedures impl icit in the concept of ordered liberty. Teague v. Lane , 489 U.S. 288, 307-310, 109 S.Ct. 1060, 1073 -1075 (1989).

Federal courts applyi ng the Teague analysis to the United States Supreme Court’s decision i n Ake have declined to requi re retroactive appli cation of the rule announced therein. Gretzler v. Stewart , 112 F.3d 992, 999-1000 (9th Cir.23 We note that the petitioner cited Barnett in his application for permission to appeal to the supreme court on September 23, 1997. However, an issue is not previously determined solely by the supre

me court’s denia

l of permission to ap

peal, because t

he denial is not a determination on the merits. Meadows , 849 S.W.2d at 755. 35 1997); Bassette v. Thompson , 915 F.2d 932, 938-939 (4th Cir. 1990). Logically, if the rule announced in Ake does not require the observance of procedures implicit in the concept of ordered liberty , then application of the rule i n Ake to non-capital cases similarly does not qualify as a “‘watershed rule[] of criminal procedure.’” Gretzler , 112 F.3d at 999.

However, we need not resolve this iss ue due to this court’s Order vacating our opinion on direct appeal and re-enteri ng the opinion as of July 22 , 1997. The petitioner’s convictions did not become fina l until the supreme court denied the petitioner permiss ion to appeal on April 20, 1998. 23 A new federal rule is retroactively appl ied to all cases, state or federal, pending on direct r eview or not yet final at the time the new rul e is adopted. Meadows , 849 S.W.2d at **753-754. In any case, even app lying Barnettto the petitioner’s case, we have already c oncluded that the petitioner failed both dur ing the trial proceedi ngs and during the postconviction proceeding s to demonstrate a particular ized need for the appointment of a defense expert. See, e.g., Jacobs , No. 01C01-9601-CC-00048, 1997 WL 576493, at *3. Moreover, assumi ng that Barnettrequired the appointment of a DNA expert in this case, the trial cour t’s denial of expert assi stance was harmless bey ond a reasonable doubt. Once again, even absent the DNA evi dence, the State presented overwhelming proof of the petitioner’s guilt.

III. Conclusion For the foregoing reasons , we affirm the judgment of the postconviction court.36 Norma McGee Ogle, Judge

CONCUR:

James Curwood W itt, Jr., Judge

John K. Byers, Sen ior Judge