From the record before us, it appears that one count charged rape by force; the other count charged rape by 1

coercion. 

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 9, 2008

FRANK SMITH v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 00-10325 W. Mark Ward, Judge

No. W2007-02773-CCA-R3-PC - Filed October 13, 2008

The petitioner, Frank Smith, was convicted by a Shelby County jury of two counts of rape and

sentenced to eight years on each count, to be served concurrently. He subsequently filed a petition

for post-conviction relief, alleging he received the ineffective assistance of counsel. After a hearing,

the post-conviction court denied his petition. Following our review, we affirm the judgment of the

post-conviction court.

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

ALAN E.GLENN,J., delivered the opinion of the court, in which NORMA MCGEE OGLE and CAMILLE

R. MCMULLEN, JJ., joined.

Jerri D. Mauldin, Memphis, Tennessee, for the appellant, Frank Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Summer Morgan, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

 

FACTS

The petitioner was indicted on two counts of rape, Class B felonies. Our opinion on direct

1

appeal provides a synopsis of the evidence presented at his trial:

The victim testified at trial that she was thirteen years old at the time of the

rape. She said that she and a friend, April, were picked up from April’s home by
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April’s boyfriend and his uncle, the defendant. She recalled that they rode from

Tipton County to Memphis and arrived at the defendant’s home. She said they all

went into the house and the defendant said he wanted the victim to leave with him

so that April and her boyfriend could have “some time alone.” She said that she told

April that she did not want to go with the defendant because she did not know him,

but April told her it would be okay.

The victim testified that she left with the defendant. While riding in the car,

he asked her if she drank. She replied that she did not, and he then asked her what

she wanted to do. She replied that she did not know, and he took her to a hotel. She

said that she told him she did not want to go to the hotel. The defendant became

angry and told her that “if he wanted to treat [her] to let him treat [her].” She recalled

that he went into the office, got a room key, returned to the car, and moved it away

from the office. She said that they went into the room, and he locked the door. He

told her to sit on the bed and take off her clothes so he could look at her body. She

said she was scared and started to ask him not to have sex with her. He told her he

just wanted to look at her body, but he would hurt her if he needed to. She said that

she believed that he would hurt her.

She said she took off her clothes and, after he removed his clothes, he

climbed into bed and had sex with her. She said that she was trembling badly and

that he told her to stop because she was making him nervous. After the rape, they

dressed and returned to pick up April and her boyfriend. She recalled that a woman

was at the defendant’s house and that he asked the boyfriend if “Dorothy” was mad

at him for having company. The defendant returned the victim and April to a

location near April’s house, and they walked the rest of the way.

The victim said that she did not tell her mother about the rape because she did

not want her to be hurt. She told a friend who had previously been sexually

assaulted, about the rape because she believed she would understand. The friend told

their school counselor who, in turn, reported the incident to the victim’s mother. Her

mother took her to the doctor and the victim provided a statement to law

enforcement.

The victim testified that the defendant told her the rape was her fault because

she told him she did not care what they did that night. She identified the defendant

in the courtroom.

The next witness to testify was Dr. Loren Crown, a doctor in the emergency

department at Baptist Memorial Hospital in Tipton County. He testified that the

victim was examined at the hospital on September 2, 1999, by Dr. Naqui, the

attending physician in the emergency department. He said that the victim’s pelvic

examination showed a ruptured hymen and positive cervical motion tenderness. He
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said that the ruptured hymen could be the result of a number of things including

sexual penetration. He testified that the positive cervical motion tenderness reflected

that the victim was experiencing discomfort in her cervix which could have been

indicative of inflammation in her uterus caused by trauma. He also said that, during

their first pelvic examination, some thirteen-year-old girls may be “exquisitely

sensitive.” He said that clue cells were present in the victim’s exam, which are

correlated with sexual activity. He testified that the records reflected the diagnosis

as sexual assault and pelvic inflammatory disease.

Next, Pramudhbhai Patel, the owner of the Rainbow Inn in Memphis, testified

that the Rainbow Inn is a motel with rooms rented hourly and daily. His testimony,

which was based on a work sheet from the hotel, was that a room was rented to the

defendant for two hours on the night of August 28, 1999, from 9:57 p.m. until 11:57

p.m. The work sheet was made an exhibit, in addition to the registration card for the

defendant. After Mr. Patel’s testimony, the State rested its case, and the defense

moved for a judgment of acquittal. The motion was denied, and the defendant was

questioned about his decision not to testify.

The defense called one witness, Dorothy Jackson, a former girlfriend of the

defendant. She testified that she has known the defendant since 1998 and that she

was intimate with the defendant in August of 1999. She said that, around Labor Day

weekend in 1999, the defendant picked her up around 8:30 or 9:00, and they went to

the Rainbow motel on Jackson Avenue. She said that they stayed at the motel until

12:30, when the defendant’s nephew paged him. She recalled that the defendant

called his nephew and asked him for a ride somewhere but he told him he would take

him the next day. She said this was the last time that she and the defendant had been

intimate.

On cross-examination, Ms. Jackson said that she was contacted the day before

trial by the defendant to testify on his behalf. She said that she was not aware that

he had been charged with the crimes until the previous day.

State v. Frank Smith, No. W2005-01997-CCA-R3-CD, 2006 WL 3147058, at *1-2 (Tenn. Crim.

App. Nov. 3, 2006). At the conclusion of the trial, the jury convicted the petitioner on both counts

and he was sentenced to concurrent terms of eight years on each count.

Following an unsuccessful direct appeal, the petitioner sought post-conviction relief, arguing

he received the ineffective assistance of counsel. The post-conviction court conducted an evidentiary

hearing on November 2, 2007. At the hearing, the petitioner testified that he hired counsel as his

attorney for trial and met with counsel “[e]very time it was a rescheduled court date.” Aside from

their meetings in court, the petitioner and trial counsel met “[o]nly one” time outside of court. At

that meeting, the petitioner brought his nephew, Travis Smith, to meet with counsel about Smith

testifying at the petitioner’s trial. According to the petitioner, counsel told him not to worry about
-4-

getting other witnesses for trial because he was going to subpoena them. When he reported for jury

selection, the petitioner discovered that counsel had not subpoenaed Dorothy Jackson, one of the

witnesses he had suggested. Counsel told the petitioner “if you want her here, I will write you out

a subpoena and you will be responsible for finding her and making sure she get[s] it.” 

The petitioner testified that trial counsel told him “there was no discovery” in his case – that

“[a]ll there was, was an affidavit where the victim stated that [the petitioner] had taken her to some

hotel on Jackson and raped her.” The petitioner stated that he told counsel he would be willing to

plead to a lesser-included offense even though he was not guilty because he wanted to get the “matter

taken care of so [he] could go on with [his] life.” However, counsel told him there were no lesserincluded offenses for his charges and he could either “plead guilty to the charge or not guilty at all.”

Counsel promised to walk through the trial process with the petitioner, but the petitioner did not feel

fully prepared for trial. He did not testify at trial because counsel told him “that he did not want

[him] to take the stand in [his] own defense. He was going to utilize [his] witness.” The petitioner

elaborated that he did not testify at trial because counsel told him that his “witness was waiting in

the witness waiting room waiting until [he took] the stand to let the judge know that [he] was not

going to take the stand.” The witnesses the petitioner expected to testify at trial were Dorothy

Jackson, Travis Smith, and April Davis. Jackson and Smith were supposed to testify about the

petitioner’s alibi, and Davis was supposed to testify that “they talked to [the petitioner] while [he]

was at the hotel and [he] did not meet them until the following day.” After the petitioner told the

court he was not going to testify, counsel called only Jackson as a witness. 

The petitioner stated he did not feel that trial counsel fully pointed out inconsistencies in the

victim’s testimony. He thought counsel should have noted that the victim said the offense occurred

on one date in her police statement and another date during trial. The petitioner said he asked

counsel to question the victim about “what age did she give [him] and what was she wearing in

disguising herself,” but counsel did not ask those questions. The petitioner also thought counsel

failed to fully argue his side to the jury with regard to the medical expert’s testimony. He said

counsel never discussed hiring his own expert. The petitioner felt counsel should have requested that

the jury be charged on lesser-included offenses in light of the medical expert’s testimony. 

The petitioner testified he did not think he was present for the entire sentencing hearing

because he noticed counsel “was already addressing or talking to the Court” when he entered the

courtroom, and “that conversation maybe lasted . . . a good ten minutes, and [he] couldn’t hear or

understand . . . what’s being said.” The court then handed down his sentence without giving him “a

chance to speak or present any witness or anything.” The petitioner explained that he was upset

because he could not hear everything said between counsel and the court, and he felt the conversation

started before he entered the courtroom. The petitioner alleged that his attorney on direct appeal told

him that trial counsel had told the appellate attorney he “was offered a lesser included charge or

something,” but the petitioner was never presented with an offer. The petitioner stated he wished

to proceed in his post-conviction claim solely against trial counsel. 
-5-

On cross-examination, the petitioner acknowledged it was the State’s decision as to what an

offer on a plea would be, not counsel’s. However, the petitioner maintained that his attorney on

appeal told him “he had spoken with [trial counsel] and [trial counsel] stated that [the petitioner] had

been offered a lesser charge and probation and [the petitioner] refused it.” Asked whether he knew

that the State had offered him a plea on the charge of rape, the petitioner said he was “just now

hearing it.” The petitioner admitted he was shown a copy of the statement he made to the police but

said he never received a copy of the victim’s statement. 

The petitioner acknowledged that Jackson testified at his trial but said counsel had not

prepared her to testify. The petitioner maintained he was not aware that counsel had tried

unsuccessfully to locate Jackson before trial, but he admitted she had moved from the address

originally given to counsel. The petitioner acknowledged that counsel asked the medical expert

about whether activities other than sexual intercourse could cause a ruptured hymen but said “he

didn’t offer to say anything else to the jury.” The petitioner admitted that he told the court it was his

decision not to testify, but qualified that it “was [his] decision with [trial counsel’s] advice.” The

petitioner conceded that at trial he told the court he was satisfied with trial counsel’s representation.

He explained, however, trial counsel had told him those questions were part of the “procedure before

they bring [his] witness on.” On redirect examination, the petitioner stated he would have testified

at trial had he known his two other witnesses were not going to be called to testify. 

The post-conviction court questioned the petitioner about how he was prejudiced if he

received the minimum sentence. The petitioner responded he “could have had a chance to discuss

the percentage.” The court explained that the percentage of service was not negotiable and asked

if the petitioner wanted a new sentencing hearing. The petitioner conceded he did not want the case

to be remanded for resentencing. The court also questioned the petitioner about why he thought he

was not present for part of the sentencing hearing. The petitioner explained that he was waiting in

the lockup area outside the courtroom, the door opened, and he saw trial counsel inside the

courtroom having a discussion. The petitioner admitted that he could not hear what counsel was

saying or discern to whom he was talking. He acknowledged that it was “possible” counsel was

talking about someone else’s case because he usually had more than one client at a time. The

petitioner acknowledged that he was in the courtroom when the judge announced his sentence. 

Travis Smith, the petitioner’s nephew, testified that the petitioner talked to him about being

a witness at his trial. Smith explained he was dating the victim’s friend, April Davis, at the time of

the alleged incident. Smith recalled that, on the day of the alleged incident, he called the petitioner

at a hotel and asked for a ride to pick up his girlfriend. The petitioner told Smith he could not pick

him up because he was at a hotel. 

Smith recalled that he went with the petitioner to trial counsel’s office, and counsel “got to

questioning about April. He asked me did I know her last name and I told him I didn’t. We got into

some miscommunication and I left.” Smith elaborated that “[a]fter he asked me her last name and

I told him I didn’t know it. He told me that I was -- in a way I was full of shit.” Smith responded

to counsel “[t]hat he can’t be cursing at me and disrespecting me,” and he left the office. When
-6-

asked if the petitioner tried to keep him from leaving counsel’s office, Smith answered, “No. No.

What he said is that he didn’t feel like I would be the right person to put on the stand. So my uncle

took me back to the house.” Smith said he never received a subpoena to be at the petitioner’s trial.

On cross-examination, Smith stated he did not know what day it was he called the petitioner

at the hotel and asked for a ride. On redirect examination, he said that “April called me like two days

later and said they was taking him to court for raping a young lady, but I didn’t know what had went

on.” He elaborated that the call from April Davis came two days after he had called the petitioner

at the hotel. 

Trial counsel testified that he talked to the petitioner about his case “on numerous occasions.”

Asked whether the State made an offer to a charge less than rape, counsel responded that it “probably

happened because there were so many times that thing was set for trial. But [the petitioner] did not

want to hear that he would be found guilty. He . . . wanted a trial.” Counsel noted that his file

showed the State had made an offer of nine years at some point. Counsel said that had the State

offered a lesser sentence, he “would have certainly conveyed it” to the petitioner. 

When asked if he spoke to the three witnesses requested by the petitioner, trial counsel

explained “there wasn’t any way for [him] to put much credence” in Smith’s testimony because

Smith did not know his girlfriend’s last name, and he could not testify to anything that would

disprove the allegations against the petitioner. Counsel said that Smith “was going to testify that he

had spoken to his uncle and his uncle was at a motel,” but “that’s what Miss Jackson testified to.

The problem with that was that it was a different date entirely than when the rape was supposed to

have occurred.” Counsel stated that Jackson testified for the defense at trial, and the petitioner’s

“main complaint is that I told him to bring her in.” Counsel recalled he had another person waiting

in the witness room as a potential rebuttal witness, “but apparently what he had told me wasn’t going

to work. . . . So there wasn’t anyway I could use him.” 

Trial counsel testified that he extensively cross-examined the doctor about “what could have

caused the lack of hym[e]nal ring.” With regard to the jury instructions, counsel recalled that the

court charged several lesser-included offenses and there was some discussion with the court about

additional charges. However, the court declined to give the additional charges. Counsel talked “at

length” with the petitioner about whether he should testify. Counsel stated that the petitioner’s

defense was that he would not have had time to pick the victim up, drive to a motel, have sex with

the victim, and drive her home in the time frame she alleged. Counsel brought out inconsistencies

in the victim’s statement and tried to show that “she was not telling the truth . . . or maybe telling

the truth as she thought it, but that it wasn’t [the petitioner].” Counsel maintained that he gave the

petitioner a copy of his statement and they reviewed the medical report in counsel’s office. Counsel

did not think he received the victim’s statement until after she testified as provided for by the Jencks

Act. 

With regard to the sentencing hearing, counsel stated that the State agreed to an eight-year

sentence as long as the petitioner did not seek suspension of his sentence. Counsel said he knew
-7-

from his experiences in the trial judge’s courtroom and the facts of the case that the petitioner would

not be sentenced to less than ten years and “there was no way in this world that he was going to get

a suspended sentence.” Counsel thought the petitioner “got a great deal.” Counsel acknowledged

he talked to the trial judge before the petitioner entered the courtroom. He said that the petitioner

was then 

brought out and I said, Judge, we have the sentencing hearing, and the State’s got a

recommendation. The Judge asked what was the recommendation. The State said

eight years. And the Judge said, well, if that’s what you all want to do. . . . I’m

going to go ahead, and we’ll accept the sentence and sentence him for eight years. 

On cross-examination, trial counsel testified that when Travis Smith came to his office with

the petitioner, he probably said to Smith “how in the hell can you testify when you don’t even know

the girl’s name.” Counsel said that “afterwards, I guarantee you I explained to [the petitioner] there

wasn’t any sense in using him. He couldn’t help us.” Counsel recalled that he talked to Jackson

before she took the stand but did not remember whether he was ever able to locate Davis. Counsel

did not see a motion for discovery in his file but explained, “I don’t ever have any trouble with the

State giving me what I’m entitled to.” Counsel said he went over everything he received from the

State with the petitioner. 

When asked if he discussed trial tactics with the petitioner, trial counsel responded, “Based

on my trial experience, it’s better that you not lock yourself into a certain theory . . . because the

State’s got to go first and . . . they may have messed up[, but] I went over with him . . . his theory.”

Counsel could not specifically recall whether the State made an offer prior to trial but said, “I will

swear on the lives of my grandchildren that if there was an offer made, and if I told [appellate

counsel] he turned down a lesser crime, it was done, and he turned it down.” Asked about the

petitioner’s decision not to testify, counsel said:

[T]here he was without a record. I’m trying to get his theory out about the time

situation . . . I didn’t have anybody to examine or put on proof other than Mr. Smith

about that. I would never have advised him, you better not take the stand. That’s not

what I do. I gave him his choices and he made that choice. 

Counsel testified that he fully addressed the inconsistencies in the victim’s statement and that

her injuries were not conclusively caused by the alleged rape in his closing argument. When asked

if he considered hiring his own expert, counsel responded, “I don’t know for what. The only thing

that he could have testified to was the expert -- expertise -- the only expert we had was the expertise

of the doctor who was certainly testifying in our favor.” Counsel said he discussed the sentencing

agreement with the petitioner – that he “wouldn’t just bring a guy out and say, okay, here you are,

take it to eight years and go.” 

At the conclusion of the hearing, the post-conviction court entered a written order denying

the petitioner post-conviction relief. The court resolved conflicting testimony in favor of trial
-8-

counsel and concluded that the petitioner failed to carry his burden of proof as to any of his claims.

 

ANALYSIS

Standard of Review

Post-conviction relief “shall be granted when the conviction or sentence is void or voidable

because of the abridgment of any right guaranteed by the Constitution of Tennessee or the

Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the

burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann. §

40-30-110(f) (2006). When an evidentiary hearing is held in the post-conviction setting, the findings

of fact made by the court are conclusive on appeal unless the evidence preponderates against them.

See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate

court will not reweigh the evidence and will instead defer to the trial court’s findings as to the

credibility of witnesses or the weight of their testimony. Id. However, review of a trial court’s

application of the law to the facts of the case is de novo, with no presumption of correctness. See

Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and

possible prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo

review by the appellate court. See Wiley, 183 S.W.3d at 325; State v. Burns, 6 S.W.3d 453, 461

(Tenn. 1999).

Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of both the

United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In

order to determine the competence of counsel, Tennessee courts have applied standards developed

in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that

the same standard for determining ineffective assistance of counsel that is applied in federal cases

also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which is widely accepted as the appropriate

standard for all claims of a convicted petitioner that counsel’s assistance was defective. The standard

is firmly grounded in the belief that counsel plays a role that is “critical to the ability of the

adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standard

is a two-prong test:

First, the defendant 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 defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.
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Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient

performance” in the first prong of the test in the following way:

In any case presenting an ineffectiveness claim, the performance inquiry must be

whether counsel’s assistance was reasonable considering all the circumstances. . . .

No particular set of detailed rules for counsel’s conduct can satisfactorily take

account of the variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.” House v. State,

44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a

reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been

different”). To satisfy the prejudice requirement of Strickland when alleging that counsel was

ineffective for failing to offer testimony from a favorable witness, the post-conviction 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.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996)

(citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)).

The reviewing court must indulge a strong presumption that the conduct of counsel falls

within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct.

at 2066, and may not second-guess the tactical and strategic choices made by trial counsel unless

those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the defense does not alone support

the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn.

Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect

representation. See Denton, 945 S.W.2d at 796. As explained in Burns, 6 S.W.3d at 462, “[c]onduct

that is unreasonable under the facts of one case may be perfectly reasonable under the facts of

another.”

On appeal, the petitioner argues that this court should grant post-conviction relief because

he received ineffective assistance of counsel at trial. He claims trial counsel was ineffective for a

number of reasons.

First, the petitioner argues that counsel was ineffective for failing to investigate the case fully,

including interviewing and subpoenaing possible defense witnesses. In this regard, the post-
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conviction court noted counsel’s testimony that he did not think Travis Smith would make a good

witness or have anything to offer that would refute the guilt of the petitioner. The court found that

counsel’s decision not to have Smith testify was a legitimate trial tactic and strategy decision

especially in light of the “vague testimony offered byTravis Smith in the post-conviction evidentiary

hearing.” The court observed that Dorothy Jackson testified at trial and “offered somewhat vague

testimony that she last had sex with Petitioner at the hotel in question on Labor Day weekend of

1999.” The post-conviction court also noted that the petitioner failed to call April Davis as a

witness at the hearing; therefore, it was unknown whether her testimony would have been helpful

to the petitioner. 

Upon review, we agree that counsel’s decision to not call Smith as a witness was a legitimate

trial tactic, which this court will not second-guess. See Hellard, 629 S.W.2d at 9. In regard to

Jackson, the petitioner has failed to show how he was prejudiced because she testified at trial, and

he did not explain how her testimony would have been different had counsel spoken with her earlier.

There is also some indication in the record that the reason counsel did not talk to Jackson before trial

was because she had moved from the address the petitioner had given counsel, which militates

against deficiency on the part of counsel. With regard to counsel’s failure to call Davis at trial, the

petitioner has failed to show prejudice because he did not present her as a witness at the evidentiary

hearing. See Denton, 945 S.W.2d at 802-03. We also note that the record indicates counsel had two

witnesses ready to call in surrebuttal, but the State did not put on any rebuttal proof. The petitioner

has failed to prove this claim by clear and convincing evidence.

Second, the petitioner argues that counsel failed to request discovery from the State and

provide him a copy of the discovery. The petitioner originally testified that counsel told him there

was no discovery in his case, but he later admitted he received a copy of the statement he gave to the

police. We note that the petitioner did not elucidate in his brief what specific item of discovery

counsel could have, but did not, obtain. However, we glean from the petitioner’s testimony at the

evidentiary hearing that his contention is that he did not receive the victim’s statement or medical

records. 

With regard to discovery, trial counsel testified that he gave the petitioner a copy of his

statement and they reviewed the medical report together. Counsel said that he went over everything

he received from the State with the petitioner. Counsel acknowledged he did not file a formal

discovery motion but explained that he obtained discovery without having to file a motion. The

post-conviction court resolved the conflicting testimony in favor of trial counsel. 

Accrediting trial counsel’s testimony that he reviewed the medical report with the petitioner,

the petitioner’s remaining contention is that he did not receive a copy of the victim’s statement prior

to trial. In addressing this contention, we note that statements made by state witnesses are not

discoverable under Tennessee Rule of Criminal Procedure 16(2). See also Tenn. R. Crim. P. 26.2

(Tennessee’s version of the Jencks Act, outlining the procedure for obtaining a witness’s statement

after the witness testifies at trial); State v. Taylor, 771 S.W.2d 387, 394 (Tenn. 1989) (holding that

there is “no constitutional requirement that the State provide witnesses’ statements prior to trial. The
-11-

rule is clear that the State has no obligation to produce statements of a witness until the conclusion

of the witness’[s] testimony on direct examination.”). As such, there was no deficiency on the part

of counsel for failing to “discover” the victim’s statement prior to trial. 

Third, the petitioner argues that counsel did not meaningfully discuss defenses and trial

tactics with him, including possible settlement of the charges. At the hearing, counsel testified he

met with the petitioner on a number of occasions to talk about his case. Counsel said that the

petitioner’s defense was that “he would not have had time to do what [the victim] claimed, pick her

up, take her to the motel, have sex with her, and then get her back home in the time frame [the

victim] was saying.” Counsel testified that he discussed the petitioner’s theory with him but said he

does not like to “lock [himself] into a certain theory” until after the State presents its case. In

addressing prejudice, the post-conviction court found it most telling that the petitioner did not

identify what defense or trial tactic counsel should have raised, leaving the court to speculate as to

whether there was a defense or tactic available to the petitioner. Accrediting trial counsel’s

testimony as the post-conviction court did implicitly, we conclude that the petitioner has failed to

prove deficiency or prejudice.

With regard to possible settlement of the charges, the petitioner testified that he told trial

counsel he was willing to plead to a lesser-included offense. He claimed his attorney on appeal said

trial counsel had told him there had been an offer on a lesser charge. Trial counsel testified that the

petitioner received a nine-year settlement offer for a guilty plea to rape, but he did not accept it.

Counsel said that had the State offered a lesser sentence, he “would have certainly conveyed it” to

the petitioner. According to counsel, the petitioner wanted a trial. Counsel stated that if he told the

appellate attorney there was an offer on a lesser charge, then it was true and the petitioner turned it

down. We note that the petitioner did not offer testimony from his appellate attorney at the

evidentiary hearing in support of his claim. The post-conviction court accredited trial counsel’s

testimony. As such, the petitioner has failed to prove that counsel was ineffective with regard to

possible settlement of the charges. 

Fourth, the petitioner argues that counsel did not “adequately discuss . . . the pros and cons

of taking the stand in his own defense.” The petitioner testified that he chose not testify at trial

because counsel told him “that he did not want [him] to take the stand in [his] own defense. He was

going to utilize [his] witness.” Counsel testified that he talked “at length” with the petitioner about

whether he should testify. When asked about the petitioner’s decision not to testify, counsel said that

he would have never advised him not to take the stand but would have given him his options and let

him make the choice. 

The post-conviction court did not accredit the petitioner’s testimony that counsel promised

to call two other witnesses, which was his alleged reason for not testifying. The court noted that the

petitioner did not identify any improper influence, demands, or misrepresentations on the part of

counsel leading him not to testify, nor did he testify at the evidentiary hearing as to what his

testimony would have been. The court concluded that the petitioner did not carry his burden in
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showing any deficiency on the part of counsel with regard to his decision not to testify or any

resulting prejudice. After review, we agree with the post-conviction court’s conclusion.

Fifth, the petitioner contends that counsel failed to adequately argue his case. Specifically,

he argues that counsel did not attack inconsistencies in the victim’s statements, highlight the

insufficiency of the medical evidence of rape, or point out problems with the State’s proof. We note

that it is not entirely clear whether the petitioner is aggrieved with counsel’s performance during

cross-examination of the witnesses or closing argument. Addressing cross-examination, the

transcript of the trial shows that counsel thoroughly cross-examined the victim and the medical

expert. We discern no deficiency in counsel’s performance in this regard. 

Turning to closing argument, counsel testified that he fully addressed the inconsistencies in

the victim’s statement and that the victim’s injuries were not conclusively caused by forcible sexual

intercourse. We note that the record on appeal does not contain the closing arguments, hindering

our review of this issue. The petitioner has provided no proof that counsel did not sufficiently argue

his case other than his allegations – allegations that were directly contradicted by counsel. He has,

therefore, failed to carry his burden of proving that counsel performed deficiently. The petitioner

has also failed to show that there is a reasonable probability that the outcome of his case would have

been different had counsel provided even more argument to the jury. 

As an aside to this issue, the petitioner mentions that counsel never suggested hiring his own

expert. We need not belabor this issue because the petitioner offered nothing to support that such

action constitutes deficient performance in this case. He has not shown what another expert would

have testified to and how that testimony would have changed the outcome of his case.

Sixth, the petitioner asserts that counsel failed to request jury instructions on lesser-included

offenses. The record shows that the court instructed the jury on rape, sexual battery, and assault.

The record also reflectsthat counsel requested additional charges, but the court declined to give any.

At the evidentiary hearing, counsel testified that the court charged several lesser-included offenses

and that the lesser-included charges that were given were to the petitioner’s advantage. Counsel

surmised that the court could have charged aggravated sexual battery but said that would have been

to the State’s benefit. The petitioner’s argument on this issue consists of “[counsel] also never

pushed the Court to place in the jury charge any lesser included offenses.” The post-conviction court

concluded that the petitioner “failed to show either deficient performance or prejudice.” We agree

with the post-conviction court’s conclusion. 

 

The petitioner lastly argues that counsel was ineffective at the sentencing hearing for “not

having [him] present during said hearing and not seeking probation during this hearing.” Initially,

we note that the petitioner’s proof in this regard consists of his speculation that the sentencing

hearing started without him because counsel was speaking with the trial judge when he entered the

courtroom. However, the petitioner admitted that he was present when his sentence was pronounced.

Counsel agreed that he talked to the trial judge before the petitioner was brought into the courtroom

but said that the petitioner was present during sentencing. The testimony at the evidentiary hearing
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indicates that the petitioner was sentenced pursuant to a consent agreement with the State, meaning

the actual sentencing hearing was, in all likelihood, very abbreviated. We note that a transcript of

the sentencing hearing was not included in the record for our review. After review, we are unable

to conclude that trial counsel performed deficiently or that any alleged deficiency caused the

petitioner prejudice.

With regard to counsel not seeking probation, trial counsel testified that he discussed the

sentencing consent agreement with the petitioner and discussed with him that the State agreed to an

eight-year sentence if he did not seek suspension of his sentence. Counsel testified that based on his

experiences in the trial judge’s courtroom and the facts of the case, the petitioner would not be

sentenced to less than ten years and “there was no way in this world that he was going to get a

suspended sentence.” The record shows that the petitioner received the minimum sentence for his

convictions and that his ability to get the minimum sentence could have been compromised had he

sought probation. At the evidentiary hearing, the petitioner told the post-conviction court that he did

not want his case remanded for resentencing. As such, the petitioner has failed to prove either

deficiency or prejudice. 

CONCLUSION

We conclude that the petitioner has failed to demonstrate, by clear and convincing evidence,

that he was denied the effective assistance of trial counsel. Accordingly, we affirm the

post-conviction court’s denial of the petition. 

___________________________________ 

ALAN E. GLENN, JUDGE