IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 19, 2015

DEERIC MCAFEE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Knox County

No. 101445 Mary Beth Leibowitz, Judge

No. E2014-01829-CCA-R3-PC – Filed July 16, 2015

The petitioner, Deeric McAfee, filed in the Knox County Criminal Court a petition for 

post-conviction relief from his convictions of second degree murder and reckless 

endangerment. The petitioner alleged that his trial counsel was ineffective. The postconviction court denied the petition, and the petitioner appeals. Upon review, we affirm 

the judgment of the post-conviction court. 

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

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which D. KELLY 

THOMAS, JR., and ROBERT H. MONTGOMERY,JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Deeric McAfee. 

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant 

Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, 

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

OPINION

I. Factual Background

On direct appeal, this court summarized the proof adduced at trial as follows:

On February 19, 2008, the Knox County Grand Jury 

indicted the [petitioner] for the premeditated first degree 

murder of Tray Sherman and for the reckless endangerment 

of Timothy Flack, Jr. At trial, Roberta Flack testified that in 

2007, she worked as a secretary and was addicted to cocaine. 
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In October 2007, Flack lived in a residence at 1511 

Connecticut Avenue with her three minor children, the 

youngest of whom, Timothy Flack, Jr., was four years old. 

Her cousin, Anna Street, also lived with her. Flack stated that 

twenty-three-year-old Sherman was her boyfriend and that he 

occasionally stayed with her. However, she noted that their 

relationship was not exclusive. Flack acknowledged that she 

kept drugs in the house, that she used drugs with Sherman, 

and that Sherman sold drugs. Flack said that the [petitioner] 

had previously been to her house with her cousin, Precious 

Pruitt, and that he lived with his grandmother and other 

family members on the next street.

Flack said that on October 8, 2007, Sherman and his 

friend, Robert Davis, came to her house around 6:30 p.m. or 

7:00 p.m. Sherman was driving his green Suburban, and he 

parked in the driveway. When he arrived, Moneek Logan 

was on the porch with Timothy and Logan‟s niece. Street, 

Diez Debro, and Flack were in the kitchen. Sherman came 

into the kitchen, upset and scared, and told Flack that he had a 

confrontation at a store down the street with Treece Hamilton, 

who was the [petitioner‟s] cousin. He said that Hamilton was 

injured during the confrontation. Flack said that Hamilton 

had been her friend and that Hamilton and Sherman had 

previously argued because of jealousy.

Later, Flack and Sherman left the house, intending to 

go to the store for cigarettes and to take Davis home. As they 

stepped outside, Flack saw the [petitioner] sitting on the 

porch with his head down. She asked what was wrong, the 

[petitioner] replied that nothing was wrong, and he got up as 

if to leave. Flack and Davis walked toward Sherman‟s truck. 

The [petitioner] and Sherman stood at the edge of the 

driveway near the sidewalk and started talking. They did not 

argue and smoked marijuana together. Flack and Davis 

repeatedly told Sherman that they needed to leave. 

Eventually, when Sherman ended the conversation and turned 

to walk toward his truck, Flack saw a flash from a gun. 

Sherman began to run, and Flack heard a couple more 

gunshots. Flack said that Davis ran away, but she did not 

know in which direction. The [petitioner] ran toward the park 
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across the street from Flack‟s house, in the direction of the 

[petitioner‟s] grandmother‟s house.

Flack told Logan, who was still on the porch with the 

children, to take the children inside the house. Logan 

complied. Flack looked for Sherman and found him lying in 

an alley around the corner from the house. Flack tried to talk 

to Sherman. Street came to the alley and started performing 

CPR on Sherman. Flack heard blood rattling in Sherman‟s 

lungs and told Street to stop. Flack called 911. Before police 

arrived, Flack removed $20 in cash and cocaine from 

Sherman‟s pocket. She gave the items to Street and told her 

to get rid of them. Flack said that either the police or 

paramedics removed Sherman‟s white t-shirt while trying to 

resuscitate him. Flack stated that Sherman did not have a gun 

that night.

Flack said that, after midnight, she spoke to 

Investigator Still. She identified the [petitioner] as the 

shooter, but did not disclose that she had taken drugs from 

Sherman‟s pocket. She stated that she later saw bullet holes 

in her house and that the holes were not there prior to the 

incident.

Flack said that after the shooting, she received calls 

and “dirty looks” from the [petitioner‟s] friends and family 

and that she feared for her family. Accordingly, she moved 

away from Knoxville.

On cross-examination, Flack acknowledged that she 

was on probation for a “bad check” charge in Ohio. She said 

that she gave the cocaine she took from Sherman to Street and 

that Street hid it between her breasts. Flack acknowledged 

that Sherman occasionally carried a gun but maintained that 

he was not carrying a gun on the night of the shooting.

Flack stated that Sherman was about 6 feet tall and 

weighed approximately 240 pounds. She said that Hamilton 

was approximately 5 feet tall and weighed more than 150 

pounds. Flack stated that Hamilton was known to carry a 

knife and guns. When Sherman arrived at Flack‟s house, he 
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told her that he hit Hamilton after she threatened him and 

reached into her purse. Flack said that when she and 

Sherman came outside the house, the [petitioner] called 

Sherman over to him to talk. Flack stated that she thought the 

men were “talkin[g] about the confrontation, but it was no 

upset.” She said that the [petitioner] was wearing a long tshirt, and Flack thought that the [petitioner] took the gun from 

his pants pocket or from his belt. She saw the gun in the 

[petitioner‟s] hand after the shooting. Flack said that 

although the [petitioner] had been at her house many times, 

he had never caused trouble until that night.

Moneek Logan testified that she and Flack were 

friends and that on the night of October 8, 2007, she was at 

Flack‟s house. Logan said that sometime after 6:30 p.m., she 

was sitting on the porch, and Sherman and Flack were inside 

the house. Later, they came outside, and Flack walked 

toward Sherman‟s truck. Logan went into the house, got a 

beer, and went back outside. She saw Sherman and the 

[petitioner] . . . calmly talking. When Logan turned around, 

she heard shots fired. She saw the [petitioner] run toward the 

porch and Sherman run toward the back of the house. She 

said that she never saw a gun.

On cross-examination, Logan stated that after the 

shooting, she left the house and went to the alley where 

Sherman was lying. She saw Flack try to revive him, but he 

was already dead. She said that she did not see Flack go 

through Sherman‟s pockets.

Knoxville Police Investigator Steve Still testified that 

he arrived at the scene at approximately 9:03 p.m. on October 

8, 2007. He spoke with people on the scene and learned that 

the [petitioner] was the shooter. After about an hour, 

Investigator Still went to the hospital and saw Sherman‟s 

body. Investigator Still saw a gunshot wound to the back of 

Sherman‟s left torso.

Investigator Still said that based upon his 

investigation, he concluded that the shooter was standing near 

the sidewalk and fired toward the direction of the house. 
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Flack specifically told Investigator Still that Sherman did not 

have a gun, and no other witness reported Sherman having a 

gun.

Investigator Still said that when he looked at 

Sherman‟s shirt, he saw a bullet hole surrounded by 

gunpowder burns, which indicated the shot was fired at close 

range.

On cross-examination, Investigator Still said that he 

had seen a police report documenting the incident between 

Sherman and Hamilton. He said that Hamilton had an injury 

to her face or nose. He stated that he did not know if the 

[petitioner], who was related to Hamilton, knew of the 

altercation before going to Flack‟s house.

Knoxville Police Crime Scene Officer Gerald Smith 

testified that at 9:20 p.m. on October 8, 2007, he reported to 

the scene of a shooting at 1511 Connecticut Avenue. Upon 

arrival, he learned that paramedics had already taken Sherman 

to the hospital. Officer Smith was informed that Sherman 

was discovered lying in an alley behind the residence. 

Officer Smith went to the alley and found a size XXXL white 

t-shirt that had a bullet hole in it and was stained with blood. 

Gunpowder was surrounding the bullet hole in the t-shirt, 

which indicated that the gun had been fired at close range. 

Officer Smith said that police never recovered a weapon in 

connection with the case.

Officer Smith testified that bullets had struck the front 

of the house. Specifically, a bullet hole was located between 

a window and the right side of the house and another was 

found in a down spout at the corner of the house. The 

location of the bullet holes indicated that the shots were fired 

toward the front of the house. Officer Smith stated that he did 

not find any cartridge casings at the scene, which suggested 

that the weapon involved was likely a revolver.

Officer Smith said that after examining the crime 

scene, he went to the University of Tennessee Medical Center 

emergency room trauma bay where he learned that Sherman 
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had been pronounced dead. In the emergency room, Officer 

Smith took photographs of the bullet entrance wound, which 

was located on Sherman‟s left side near the back. Officer 

Smith accompanied Sherman‟s body to the Forensic Center 

where the Knox County Medical Examiner performed 

autopsies. After the autopsy, Officer Smith recovered the 

bullet that struck Sherman.

On cross-examination, Officer Smith stated that during 

his investigation, he found nothing to indicate that Sherman 

had a gun. Therefore, no gunshot residue test was performed 

on Sherman. He stated that the bullet recovered during the 

autopsy was a medium caliber, such as .32, .380, or 9 

millimeter.

Knoxville Police Officer Edward Todd testified that at 

approximately 6:00 p.m. on October 10, he and Investigator 

Still met at the scene to perform a follow-up investigation. 

He stated that they were unable to find the bullets that were 

shot into the front of the house.

On October 9, 2007, Dr. Darinka Mileusnic-Polchan, 

the Chief Medical Examiner for Knox and Anderson 

Counties, performed an autopsy on Sherman. She determined 

that the manner of Sherman‟s death was homicide and that 

the cause of Sherman‟s death was a single gunshot wound to 

the chest area. Dr. Mileusnic-Polchan testified that the bullet 

entered the left side of the chest between the ninth and tenth 

ribs, perforated the left lung, damaged the diaphragm, tore the 

aorta and the esophagus, and damaged the liver and the right 

lung. The bullet caused extensive internal bleeding. Dr. 

Mileusnic-Polchan found a small caliber bullet in the 

accumulated blood in the chest cavity. She found gunshot 

residue indicating that the bullet was fired from “extremely 

close range.” She stated that the only thing she could 

definitively say about the position of the shooter was that the 

muzzle of the gun was pointing toward Sherman‟s left side or 

back and slightly upward. Dr. Mileusnic-Polchan said that 

the victim would have been able to move for a short time 

after the wound was inflicted. Sherman‟s blood tested 

positive for cocaine.
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On cross-examination, Dr. Mileusnic-Polchan said that 

Sherman was 5 feet, 9 inches tall and weighed 225 pounds. 

The bullet traveled “slightly back to front, left to right, and 

slightly upward.”

The State rested its case-in-chief.

Anna Street testified on behalf of the [petitioner]. 

Street confirmed that in 2007, she was living with Flack on 

Connecticut Avenue. She stated that Flack was a liar, a thief, 

and a junkie.

Street stated that on October 8, 2007, Flack, Sherman, 

and Davis were in Flack‟s kitchen, snorting cocaine and 

talking about an incident that happened earlier. Afterward, 

they went outside. The children were in the kitchen, and 

Street went to the front bedroom, which faced the front porch. 

Street said she looked out the window and saw the 

[petitioner] walking down Connecticut Avenue toward 

Flack‟s house. Street could not see what transpired outside, 

but she heard three gunshots that sounded like they were 

being fired from two different guns. Street looked out the 

back window and saw Sherman running down the driveway 

beside the house. Sherman was holding himself, had a gun in 

his hand, and fell in the alley behind the house. She saw

Flack approach Sherman, grab the gun, and take drugs from 

his pocket. Flack “got rid of” the gun then began yelling for 

help. Street went outside, and Flack asked her to help. Street 

began performing CPR. Street said that Flack asked her to 

hide the drugs and that she told Flack she did not want them. 

Street admitted that she did not tell the police about seeing 

Flack remove the gun from Sherman‟s hand.

On cross-examination, Street said that she ran errands 

during the day of October 8, 2007, and that she got to Flack‟s 

house around 6:00 or 6:30 p.m. She stated that Logan could 

have taken Timothy outside at some point, acknowledging 

that she was not watching Timothy‟s every move. Street said 

that she did not know where Flack hid Sherman‟s gun. Street 

stated that she told Investigator Still that Sherman had hit 
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Hamilton hard and that Hamilton had to go to the hospital. 

Street said that during her statement, she lied to police about 

Timothy being outside at the time of the shooting and about 

seeing no one with a gun, maintaining that she lied because 

she did not want to be involved and because Flack had 

threatened her.

Nicole (“Treece”) Hamilton testified that the 

[petitioner] was her younger cousin and that he was eighteen 

years old at the time of the incident. She said that on October 

8, 2007, she was standing outside Burnside Market with a 

friend when Sherman drove up, jumped out of the car, and hit 

her left eye. She said the eye came out of the socket. There 

was no bleeding, but the tear pocket burst and “ran water.” 

Thereafter, she was taken to Fort Sanders Hospital, then she 

was transferred to the University of Tennessee Medical 

Center. She stated that she did not remember anything after 

she left Fort Sanders until she woke in the hospital a day or 

two later. She said that she remained in the hospital for 

almost two weeks. She stated that she was legally blind in 

her left eye and was going blind in her right eye. Hamilton 

denied ever threatening Sherman, noting that he was a large 

man.

Robert Dwight Wade testified that in October 2007, he 

lived about a block away from the [petitioner]. At around 

7:00 or 8:00 p.m. on October 8, 2007, the [petitioner] called 

Wade and asked him to go to the basketball court. Wade told 

the [petitioner] that he could not go because he was “on 

punishment.” He told the [petitioner] that they could play 

basketball at Wade‟s house, but the [petitioner] never came to 

Wade‟s house that night.

Robert Davis testified that he was with Sherman on 

October 8, 2007. He stated that he saw Sherman hit Hamilton 

in front of the Burnside Market. Davis said that Sherman 

always carried a gun and that he had a black .38 revolver with 

him that day, wearing it against his hip and concealing it with 

his shirt. Following the altercation, Davis and Sherman went 

to Flack‟s house. Upon arriving, they went inside and snorted 

cocaine. After a while, Sherman agreed to take Davis home, 
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and they went outside. Davis did not notice the [petitioner] 

approach the house, but he later saw him speaking with 

Sherman at the curb. Their conversation was not loud. Next, 

Davis heard gunshots and saw the [petitioner] running away. 

Davis could not recall the direction in which the [petitioner] 

ran. After the shots, Sherman ran behind the house into the 

alley, still carrying his gun.

Davis testified that Flack told him to not let the 

[petitioner] “„get away with this,‟” saying that he needed to 

tell the police that Sherman did not have a gun. Davis said 

that he complied and lied when he gave his statement. He 

changed his story one or two weeks before trial when he told 

the State that he had lied in his statement. Davis admitted 

that he was on probation and had numerous prior convictions.

The twenty-one-year-old [petitioner] testified that he . . 

. had never been arrested before this incident and that he had 

been to Flack‟s house many times. He stated that he knew of 

Sherman; specifically, he knew Sherman was a drug dealer 

and, therefore, believed Sherman carried a gun.

On October 8, 2007, the [petitioner] had been at a 

junkyard with a cousin. He returned to his grandmother‟s 

house around 7:00 or 8:00 p.m. The [petitioner] said that he 

did not learn of anything happening to Hamilton that day. At 

home, the [petitioner] changed clothes and called Wade about 

playing basketball. After the call, the [petitioner] began 

walking toward Wade‟s house. The [petitioner] said that he 

had to walk past Flack‟s house to get to Wade‟s house. The 

[petitioner] said that he was wearing a t-shirt, a pair of

basketball shorts, and another pair of shorts. He 

acknowledged that he was carrying a .38 caliber revolver for 

protection.

As the [petitioner] passed Flack‟s house, Sherman and 

Davis came out of Flack‟s house. Flack said “hey” to the 

[petitioner], and Davis asked him for a cigarette. The 

[petitioner] approached and gave Davis the cigarette. 

Sherman walked over to the [petitioner] and started talking to 

him. The [petitioner] said that Sherman was acting “hyper.” 
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Sherman told the [petitioner] “about him hittin[g] some bitch 

in the eye.” Later in the conversation, Sherman revealed that 

the person he hit was Hamilton. The [petitioner] told 

Sherman to not disrespect his cousin. Sherman continued 

speaking of Hamilton in derogatory terms. The [petitioner] 

said that he was feeling shaky and scared because Sherman 

had hit his cousin, Sherman was much bigger than the 

[petitioner], and Sherman had a reputation for carrying a gun. 

The [petitioner] said that Sherman took out some cocaine and 

snorted it. The [petitioner] again asked Sherman to refrain 

from disrespecting his cousin. Sherman responded, “I don‟t 

really give a f[***] about s[***] „cause I keep my heater.” 

Sherman lifted his shirt and showed the [petitioner] his gun 

which was tucked into his waistband. Sherman then told the 

[petitioner] to “go get [his] whole family,” and he reached for 

his gun. The [petitioner] then grabbed his own gun and shot 

Sherman. The [petitioner] said that after he was shot, 

Sherman turned and fired at the [petitioner], and the 

[petitioner] heard another gunshot. He shot backwards 

toward Sherman and ran in the direction of his grandmother‟s 

house.

As he ran, the [petitioner] threw his gun into a 

dumpster by the “Rec Center.” He said that he did not want 

to keep the gun because he knew he had shot Sherman. The 

[petitioner] did not know until later that Sherman was dead. 

He stated that he drew his gun in self[-]defense because 

Sherman drew his gun and the [petitioner] feared Sherman 

would kill him.

On cross-examination, the [petitioner] conceded that 

he did not dispute that Sherman‟s gunshot wound was 

inflicted at close range. The [petitioner] also conceded that 

he shot toward the house at least one other time. He 

acknowledged that he did not turn himself into the police 

until two days after the shooting and after speaking with his 

grandmother and an attorney. The [petitioner] said that he 

obtained the revolver in July 2007. He agreed that Sherman‟s 

“disrespecting” Hamilton angered him. The [petitioner] 

maintained that he had fired a gun only one time prior to 
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October 8, 2007. The [petitioner] asserted that there were no 

children on the front porch of Flack‟s house.

State v. Deeric McAfee, No. E2010-01730-CCA-R3-CD, 2013 WL 794330, at *1-7 

(Tenn. Crim. App. at Knoxville, Mar. 4, 2013) (footnote omitted). The jury convicted the 

petitioner of second degree murder and reckless endangerment, for which he received a 

total effective sentence of twenty years. Id. 

Thereafter, the petitioner filed a petition for post-conviction relief. He alleged that 

his trial counsel was ineffective by failing to request a hearing under Tennessee Rule of 

Evidence 404(a)(2) to allow the introduction of evidence of Sherman‟s prior arrests for 

drug and gun offenses, which evidence the petitioner contends would have corroborated 

his claim that Sherman was the first aggressor. 

At the post-conviction hearing, both parties relied solely upon the arguments of 

counsel and did not put on proof. The petitioner‟s post-conviction counsel noted that at 

trial, trial counsel asked the court to allow the defense to introduce “the fact that there 

were pending felony drug charges against Mr. Sherman who was the victim of the case 

on the theory that that would support Mr. Sherman‟s propensity for violence when selfdefense has been raised in this case and his propensity to be the first aggressor.”1

 Postconviction counsel observed that at the time defense counsel made the request, selfdefense had not yet been raised by the proof. The trial court told counsel that it would 

address the issue after self-defense had been raised. Trial counsel, however, did not raise 

the issue after defense witnesses presented proof supporting the theory of self-defense. 

Post-conviction counsel noted that on appeal, trial counsel complained that the trial court 

erred by not allowing him to use the victim‟s prior convictions as character evidence 

pursuant to Rule 404; however, this court deemed the issue waived because it was not 

raised by trial counsel at the appropriate time. Post-conviction counsel asserted that the 

character evidence would have corroborated the petitioner‟s claim that the victim was a 

drug dealer who carried a gun and that the victim was the first aggressor. 

The State responded that the proof at trial reflected that Davis and Street had been 

intimidated by the petitioner or the petitioner‟s family into saying that the victim had a 

gun. The State contended that the proof adduced at trial was inconsistent with the 

petitioner‟s claim of self-defense. The State said that even if trial counsel 

had asked for a 404(b) hearing the Court would have 

disallowed evidence of those pending charges anyway since 

 

1 The record reveals that, in fact, the issue was raised when the State made a motion in limine to prevent trial 

counsel from revealing the victim‟s criminal history prior to the issue of self-defense being raised. 
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the jury knew that Trey Sherman was a drug dealer, that he 

hit women, and that he carried guns and was essentially not 

an upstanding citizen.

The post-conviction court found:

[T]he state argues that the state itself disclosed the [victim‟s 

criminal] history to the jury in the beginning of the case, and 

disclosed the fact that the victim was a drug dealer and that 

drugs had been found on his body. The jury also heard from 

witnesses that a dispute arose between a female relation of the 

[petitioner] and the victim at an earlier time, which is why the 

[petitioner] went armed to the place the victim was staying, 

says how he saw the victim go for a gun and shot him. 

Although no gun was found on the victim (it is also a 

contention that someone got rid of the gun which was denied 

by witnesses, although witnesses did not deny that drugs were 

removed from the [victim‟s] body.) Additionally, proof 

showed that the victim did not argue with or attempt to 

approach the [petitioner] who was calm and the [petitioner] 

pulled his gun and gave chase as the victim was running 

away. The victim was shot in the back, multiple shots were 

fired where many people were assembled including children, 

and the [petitioner] subsequently fled and hid the weapon.

The jury was given all this information and a selfdefense charge and the [petitioner] received a lesser included 

conviction of second degree murder from them. There is 

nothing to show that the standard[s for effective 

representation] were violated or in anyway inhibited the 

[petitioner‟s] right to a fair trial. Counsel was clearly an 

effective attorney in this case.

On appeal, the petitioner challenges this ruling. 

II. Analysis
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To be successful in a claim for post-conviction relief, a petitioner must prove the 

factual allegations contained in the post-conviction petition by clear and convincing 

evidence. See Tenn. Code Ann. ' 40-30-110(f). “„Clear and convincing evidence means 

evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn. 

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded 

their testimony, and the factual questions raised by the evidence adduced at trial are to be 

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are 

entitled to substantial deference on appeal unless the evidence preponderates against 

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. 

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction 

court‟s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s 

conclusions of law purely de novo. Id. 

When a petitioner seeks post-conviction relief on the basis of ineffective 

assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s 

performance was deficient and that the deficiency prejudiced the defense.” Goad v. 

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s 

performance was below “the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the 

petitioner 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.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the test, a 

failure to prove either deficiency or prejudice provides a 

sufficient basis to deny relief on the ineffective assistance 

claim. Indeed, a court need not address the components in 

any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
- 14 -

The petitioner alleges that trial counsel should have pursued the admission of the 

victim‟s prior criminal arrests to corroborate his claim that the victim carried a gun and 

was the first aggressor. As this court noted on direct appeal:

Generally, “[e]vidence of a person‟s character or a trait 

of character is not admissible for the purpose of proving 

action in conformity with the character or trait on a particular 

occasion.” Tenn. R. Evid. 404(a); see also Tenn. R. Evid. 

404(b). Nevertheless, if a defendant raises a claim of selfdefense, then Tennessee Rule of Evidence 404(a)(2) “permits 

the defendant to offer proof of the victim‟s „pertinent‟ 

character for violent behavior to help establish that the victim 

was the aggressor.” Neil P. Cohen et al. Tennessee Law of 

Evidence ' 4.04[5][c] (LEXIS publishing, 6th ed. 2011). 

However, pursuant to Tennessee Rule of Evidence 405(a), 

this substantive evidence may be established only by 

reputation or opinion and specific acts may be inquired into 

only on cross-examination. Id. Evidence of the victim‟s 

character, when used solely to corroborate the defendant‟s 

claim that the victim was the first aggressor, may be admitted 

during the direct testimony of a witness. See State v. Ruane, 

912 S.W.2d 766, 779 (Tenn. Crim. App. 1995); State v. Hill, 

885 S.W.2d 357, 361 n.1 (Tenn. Crim. App. 1994); State v. 

Furlough, 797 S.W.2d 631, 649 (Tenn. Crim. App. 1990). . . . 

McAfee, No. E2010-01730-CCA-R3-CD, 2013 WL 794330, at *1-7.

We note that in his brief, the petitioner argues that evidence of the victim‟s 

“felony drug convictions . . . would have corroborated the defense contention that the 

victim had a reputation as a violent, dangerous person, who may have reasonably been 

seen as an imminent threat to the Petitioner at the time the incident occurred.” However, 

the petitioner did not adduce proof at the post-conviction hearing, such as testimony by a 

knowledgeable witness, a judgment of conviction, or an arrest warrant, which would have 

revealed the exact nature of the victim‟s prior charges. Therefore, it is impossible for this 

court to discern the relevance, if any, of this evidence. See Derek T. Payne v. State, No. 

W2008-02784-CCA-R3-PC, 2010 WL 161493, at *14 (Tenn. Crim. App. at Jackson, Jan. 

15, 2010); Michael Carlton Bailey v. State, No. M1999-01065-CCA-R3-PC, 2001 WL 
- 15 -

935336 at *2 (Tenn. Crim. App. at Nashville, Aug. 17, 2001); see also State v. Copenny, 

888 S.W.2d 450, 454 (Tenn. Crim. App. 1993) (stating that a victim‟s prior convictions 

and arrests for drug use were not relevant to whether the victim carried a gun). 

Moreover, as the post-conviction court noted, the jury heard proof that the victim 

was a drug dealer, that he often carried a weapon, and that he had violently assaulted a 

woman earlier that day. In fact, the petitioner and two defense witnesses testified that the 

victim was carrying a weapon on the night in question. The post-conviction court 

concluded that the petitioner failed to prove that his counsel was deficient or that the 

petitioner suffered prejudice as a result of any alleged deficiency. We can find no proof 

in the record to preponderate against the post-conviction court‟s findings. 

III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court. 

_________________________________ 

NORMA MCGEE OGLE, JUDGE