IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 28, 2015

ERICA HARRIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 102607 Bobby R. McGee, Judge

No. E2014-01893-CCA-R3-PC – Filed July 16, 2015

Petitioner, Erica Harris, filed a petition seeking post-conviction relief from her conviction 

for the sale and delivery of 0.5 grams or more of cocaine. Petitioner alleges that she 

received ineffective assistance of counsel. Specifically, she alleges that trial counsel 

failed to communicate to her a plea offer that had been formally made to prior counsel 

and that he dissuaded her from testifying on her own behalf at trial. After a hearing, the 

post-conviction court dismissed her petition. Upon thorough review of the record and 

applicable authorities, we affirm the decision of the post-conviction court.

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

TIMOTHY L. EASTER, delivered the opinion of the Court, in which ROBERT W.

WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Erica Harris

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

Attorney General; Randall E. Nichols, District Attorney General; and Philip Morton, 

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

OPINION

Factual and Procedural Background

This is an appeal from the Knox County Criminal Court‟s denial of Petitioner‟s 

petition for post-conviction relief.
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On March 9, 2011, Petitioner was convicted by a Knox County jury of the sale and 

delivery of 0.5 grams or more of cocaine. The trial court merged her convictions and 

sentenced her to serve seventeen years‟ incarceration. On appeal, this Court affirmed 

Petitioner‟s conviction and sentence. State v. Erica Harris, No. E2012-01107-CCA-R3-

CD, 2013 WL 1190826, at *3 (Tenn. Crim. App. Mar. 25, 2013), perm. app. denied

(Tenn. Aug. 14, 2013).

Trial

Petitioner‟s conviction arose from a controlled drug purchase on August 24, 2009.

The purchase involved a confidential informant named Francis Brady. Ms. Brady 

testified that she was familiar with Petitioner and two of her sons. Ms. Brady testified 

that the plan was for her to go to Petitioner‟s residence on August 24 and purchase crack 

cocaine from “just whoever was in the residence.” Id. at *1. Ms. Brady asked Petitioner 

for $100 worth of crack cocaine. Petitioner went to the kitchen and brought out a DVD 

case with cocaine rocks on it. She told Ms. Brady that the cocaine belonged to her son. 

Petitioner attempted to call her son to see if she could give the cocaine to Ms. Brady. 

When her son did not answer the phone, she agreed to let Ms. Brady have the drugs. Ms. 

Brady said that Petitioner gave her a “bread wrapper” to put the cocaine in, and Ms. 

Brady gave Petitioner the $100 of buy money. Id. 

Ms. Brady was fitted with a recording device. An audio recording of the 

transaction—which this Court described as “largely unintelligible”—was admitted into 

evidence and played for the jury. Id. The voices on the recording “are barely audible 

over the static associated with the equipment being hidden inside Ms. Brady‟s clothing 

and the very loud barking of a dog throughout a great deal of the transaction”; however, a 

woman‟s voice can be heard identifying herself as “Erica.” Id. at *5. Ms. Brady 

identified Petitioner as the person she interacted with during the recorded transaction.

Officer Michael Geddings of the Knoxville Police Department supervised Ms. 

Brady in her role as a confidential informant. Ms. Brady told Officer Geddings that she 

had previously purchased drugs from Petitioner‟s son while Petitioner was present in the 

residence. Officer Geddings monitored the August 24, 2009 transaction from a vehicle 

parked outside of the residence. Ms. Brady turned over the rock-like substance she 

purchased, which was determined to be 0.9 grams of crack cocaine. Petitioner‟s 

residence was 597 feet from Green Magnet Elementary School.

On September 15, 2009, Officer Geddings and Officer Joshua Schaffer executed a 

search warrant at Petitioner‟s residence. During the search, Petitioner made a statement 

to Officer Schaffer that “the crack she had sold . . . was her son‟s and that her son was the 

one that obtained the crack cocaine and that if he was not there on that occasions [sic] she 

sold.” Id. at *2.
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Petitioner and trial counsel engaged in a Momon colloquy on the record. 

Petitioner did not testify on her own behalf. 

Petitioner presented the testimony of her son, Tramell Harris. Mr. Harris testified 

that he lived with Petitioner, her husband, and his siblings. He admitted selling cocaine 

out of Petitioner‟s residence, and he pleaded guilty in juvenile court to possession of 

cocaine. Mr. Harris stated that his aunt, Petitioner‟s sister, stayed with the family in 

August of 2009 and that she used and sold cocaine. Mr. Harris stated that his mother did 

not sell cocaine. Mr. Harris conceded that during the September 15, 2009 search, cocaine 

was found in Petitioner‟s closet but explained that he placed it there. Mr. Harris was not 

home during the August 24, 2009 transaction and did not know whether Petitioner sold 

drugs to Ms. Brady on that occasion.

In rebuttal, the State called Petitioner‟s sister, Andrea Johnson Drury, and recalled 

Ms. Brady. Ms. Drury denied any involvement in the sale of cocaine. Ms. Brady denied 

having purchased drugs from Ms. Drury and again identified Petitioner as the person 

from whom she purchased cocaine. 

Post-Conviction Hearing

On November 12, 2013, Petitioner filed a pro se petition for post-conviction relief. 

Counsel was appointed, and an amended petition was filed on February 26, 2014. 

Petitioner alleged that she received ineffective assistance of counsel because trial counsel 

failed to communicate to her a plea offer that had been formally made to prior counsel 

and because he dissuaded her from testifying on her own behalf at trial. An evidentiary 

hearing was held on August 28, 2014.

Petitioner testified that she was initially represented by the Public Defender‟s 

Office. Upon learning the identity of the confidential informant, who the State intended 

to call as a witness, the public defender advised Petitioner that he had to withdraw from 

her case because of a conflict of interest. Before withdrawing, the public defender 

informed Petitioner that the State had offered her an eight-year sentence but that he could 

not discuss it with her further. The trial court granted the public defender‟s motion to 

withdraw and appointed trial counsel.

Petitioner met with trial counsel and discussed her case. Petitioner remembered 

discussing with trial counsel a plea offer where she would serve fifteen years. Trial 

counsel explained to Petitioner that if she were convicted at trial, she could serve between 

fifteen and twenty years and that her sentence would have to be served at 100 percent 

because the offense occurred within a school zone. Petitioner wanted probation, but trial 
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counsel explained that she would not receive a probationary sentence. Petitioner told trial 

counsel that she would rather have a trial than accept the fifteen-year offer. 

Petitioner did not ask trial counsel about the prior eight-year offer. Petitioner 

denied that she would have rejected any offer that included a prison sentence. Petitioner 

testified that she would have “of course” accepted an offer resolving all of her charges in 

three different cases with concurrent sentences of twelve years, eight of which would 

have to be served at 100 percent.

Trial counsel informed Petitioner that the State was planning to call a confidential 

informant to identify her as the person who sold cocaine. Petitioner‟s defense was that 

she was not involved in the transaction and that it was, in fact, her sister who sold cocaine 

to the confidential informant. Petitioner said that the cocaine belonged to her son. Trial 

counsel advised her that if she testified, the State would “bring up the gun thing”—that a 

gun was found during the search of her residence. Petitioner testified that she had no 

prior felony convictions; her only prior conviction was for driving under the influence. 

After discussing with trial counsel whether she should testify, Petitioner made the 

decision not to testify the day of trial. Petitioner did not know her sister would be called 

to testify in rebuttal.

Further at the post-conviction hearing, Petitioner testified that on the day of the 

incident, she was present at her residence but was not involved in the drug transaction. 

Petitioner said that Ms. Brady, whom she did not know well, stopped by her residence 

that day, and Petitioner introduced Ms. Brady to her husband, with whom Petitioner was 

leaving to go to the store. Ms. Brady told Petitioner, “I need some for a hundred,” and 

asked for one of Petitioner‟s sons. Petitioner offered to call her son, but he did not 

answer the phone. Petitioner‟s sister, who was also at the residence, came downstairs 

carrying a CD case with crack cocaine on it. Ms. Brady grabbed the cocaine, and 

Petitioner‟s sister gave her a piece of a bread bag to wrap it in. Ms. Brady then placed a 

folded up $100 bill on top of the CD case.

Petitioner denied selling cocaine to Ms. Brady on several prior occasions. She 

said that Ms. Brady always bought cocaine from her sister. Petitioner explained that in 

August 2009, she and her sister looked alike but that, by the time of trial, her sister had 

gained weight. Petitioner admitted that she sold cocaine when she lived in Chattanooga.

Trial counsel testified that he had practiced law for eight years, primarily criminal 

defense, and that he had tried about 20 jury trials. Trial counsel was appointed to

represent Petitioner on her three drug cases, including the one at issue, after her prior 

counsel withdrew. Petitioner‟s original attorney mailed trial counsel Petitioner‟s rather 

large file. Included in the file was a printed email from the prosecutor making a formal 

plea bargain offer to settle Petitioner‟s outstanding cases. The State was willing to 
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reduce the Class A felony school zone cases to Class B felony school zone cases in 

exchange for concurrent twelve-year sentences, eight of which would be required to serve 

at 100 percent. The email indicated that the offer would expire if not accepted before 

pre-trial motions were heard. Trial counsel remembered the sense of urgency in relation 

to the offer because of the expiration date and testified that he “must have” discussed it 

with Petitioner. 

Trial counsel testified that he met with Petitioner and discussed the facts and 

circumstances of her case. Petitioner “was adamant that she did not commit the offense”

and that she would not “accept any penitentiary sentence.” Trial counsel made clear to 

her that the State was not going to offer probation, that any offer would include going to 

prison. Trial counsel did not specifically recall a fifteen-year offer, but explained that it 

was not unusual to receive a later, less-favorable offer closer to trial. On crossexamination, when asked if he went over the eight-year offer with Petitioner, trial counsel 

responded “It‟s my belief and recollection that I did, yes.” 

In preparing for trial, trial counsel and Petitioner discussed the quality of the audio 

recording, the confidential informant‟s potential testimony, and possible challenges to the 

map indicating that the offense occurred in a school zone. Trial counsel interviewed

Petitioner‟s son, who was willing to testify that he and his aunt, not his mother, were the 

ones who sold drugs out of that residence. Based on this statement, the poor quality of 

the audio recording, and Petitioner‟s claim of innocence, trial counsel believed the State‟s 

case “was not as strong as it could be.” Trial counsel‟s main concern was the 

confidential informant‟s identification of Petitioner. Trial counsel explained that his 

theory was not that the confidential informant was intentionally lying, but that she was 

mistaken because of the strong resemblance between Petitioner and her sister. Trial 

counsel believed the case, though not a “slam dunk,” was at least “winnable.”

Trial counsel initially planned for Petitioner to testify at trial. However, trial 

counsel changed his mind when the trial court ruled prior to trial that the Petitioner‟s 

statement regarding past sales of cocaine would be admissible if she testified that she did 

not previously sell cocaine. The statement was nonetheless admitted into evidence 

during the State‟s case-in-chief as an admission of guilt in relation to this particular drug 

sale. Additionally, Petitioner‟s testimony could potentially open the door to evidence of 

other crimes she had committed being admitted under Rule 404(b) to prove her identity. 

Trial counsel did not recall Petitioner being charged with possession of a gun or the court

ruling that evidence of a gun would be admissible if the Petitioner testified. Trial counsel 

explained that the only potential benefit of Petitioner‟s testimony would be to deny 

culpability, which the jury would likely assume was her position given the fact that they 

were having a trial. Petitioner seemed to agree with his advice and decided not to testify. 

Trial counsel again discussed with Petitioner whether she should testify after the State 
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rested its case-in-chief, and Petitioner stated during the Momon colloquy that it was her 

decision not to testify.

Trial counsel recalled that Petitioner‟s sister, Ms. Drury, testified as a rebuttal 

witness for the State that she did not sell cocaine. The prosecutor had Ms. Brady enter 

the room while Ms. Drury was testifying; Ms. Drury denied knowing Ms. Brady and Ms. 

Brady denied knowing Ms. Drury. Ms. Brady affirmatively testified that she purchased 

drugs from Petitioner, not Ms. Drury. Trial counsel explained “that was the point at 

which we lost the trial for certain.” Trial counsel did not discuss with Petitioner the 

option of her testifying in rebuttal.

With regard to Petitioner‟s claim about the plea offer, there was an exchange on 

the record prior to trial, but Petitioner and trial counsel disagreed as to which plea offer 

was being discussed. The transcript of the trial was included in the record on appeal and 

relates that the following exchange occurred:

[Prosecutor]: . . . [Y]our Honor, we want the record to be clear that the 

State, I understand it became an issue this morning, the State made 

an offer to [Petitioner] to previous counsel and apparently that offer 

was not communicated to [Petitioner] by previous counsel. [Trial 

counsel] has had an opportunity to review that offer, and it was 

communicated to her this morning. It‟s the State‟s position that 

she‟s elected not to take that offer. I‟m not going into details of it 

but we don‟t want it to become an issue later on.

[Trial Court]: All right. . . . Has she rejected the offer?

[Trial Counsel]: Yes, your Honor.

[Trial Court]: Very well.

[Prosecutor]: I‟d like -- I‟d like for her to speak that. I don‟t want [trial 

counsel] to do that for her.

. . . . 

[Trial Court]: [Petitioner], do you reject the plea offer that was offered --

that your lawyer told you about this morning?

[Petitioner]: Yes.
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At the post-conviction hearing, Petitioner testified that she understood that this exchange 

was in reference to the fifteen-year offer. On direct examination, trial counsel stated that 

the exchange was in reference to the later, less-favorable offer, though he could not

specifically recall whether that was a fifteen-year offer. Then, during cross-examination, 

trial counsel stated that he understood the exchange to be in reference to the eight-year 

offer contained in the email he had received from Petitioner‟s previous counsel.

At the conclusion of the testimony and argument, the post-conviction court stated 

its findings of fact and conclusions of law from the bench. With regard to the plea offer, 

the post-conviction court found that Petitioner “failed to establish by clear and 

convincing evidence that any plea offer was made but not communicated to her.” The 

post-conviction court noted that Petitioner testified that the only offer she would have 

accepted was one that involved probation and that there was no evidence of a 

probationary offer being made. The post-conviction court found that “the plea offers 

were communicated to [Petitioner] and that she did reject them and intended to reject 

them because she was not going to agree to go to prison, maintaining that she was 

innocent.” The post-conviction court further noted, “The purpose of this procedure, 

post[-]conviction relief, is not to give the defendant a second chance to make a decision 

differently than she made it at the time of the trial.”

With regard to Petitioner not testifying at trial, the post-conviction court found that 

trial counsel discussed the decision with Petitioner “at some length.” The post-conviction 

court noted that “there was a strong disadvantage, which is if she took the stand to 

testify[,] the State would obviously be able to cross[-]examine her, and if she denied 

engaging in the sale of drugs those were circumstances which would open the door and 

allow in the evidence of other drug sales.” The post-conviction court found that trial 

counsel gave “careful consideration . . . to the disadvantages of her testifying as opposed 

to the advantages” and made a “legitimate,” “tactical decision” in advising Petitioner not 

to testify.

The post-conviction court denied Petitioner‟s petition for post-conviction relief. 

Petitioner filed a timely notice of appeal.

Analysis

Post-conviction relief is available for any conviction or sentence that is “void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to 

prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations 

by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 

152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or 
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substantial doubt about the correctness of the conclusions drawn from the evidence.” 

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

Both the Sixth Amendment to the Constitution of the United States and Article I, 

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective 

assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a 

petitioner must demonstrate that counsel‟s representation fell below the range of 

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 

936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466 

U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient 

and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408 

(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a 

claim of ineffective assistance of counsel, “failure to prove either deficient performance 

or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 

960 S.W.2d at 580. “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 

U.S. at 697).

The test for deficient performance is whether counsel‟s acts or omissions fell 

below an objective standard of reasonableness under prevailing professional norms. 

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the 

questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629 

S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s 

conduct falls within the wide range of reasonable professional assistance.” State v. 

Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to 

perfect representation, only constitutionally adequate representation. Denton v. State, 

945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of 

ineffective assistance of counsel, „we address not what is prudent or appropriate, but only 

what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting 

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use 

hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 

347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have 

produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. 

App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does 

not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d 

508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to 

the tactical decisions of trial counsel is dependent upon a showing that the decisions were 

made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. 

App. 1992).
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Even if the petitioner shows that counsel‟s representation was deficient, the 

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain 

relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s 

unprofessional errors, the result of the proceeding would have been different.” Burns, 6 

S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be 

“sufficient to undermine confidence in the outcome.” Id. 

Whether a petitioner has been denied the effective assistance of counsel presents a 

mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the 

post-conviction court‟s findings of fact “under a de novo standard, accompanied with a 

presumption that those findings are correct unless the preponderance of the evidence is 

otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 

13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh 

or re-evaluate the evidence presented or substitute our own inferences for those drawn by 

the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the 

weight and value to be given to testimony, and the factual issues raised by the evidence

are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing 

Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law 

and application of the law to the facts are reviewed under a purely de novo standard, with 

no presumption of correctness. Fields, 40 S.W.3d at 458. 

Petitioner argues that trial counsel failed to communicate to her a formal plea offer 

made to her previous attorney about which trial counsel had knowledge. A defendant is 

entitled to effective representation during plea negotiations as well as during trial. 

Missouri v. Frye, -- U.S. --, 132 S.Ct. 1399, 1407-09 (2012); see also Hill v. Lockhart, 

474 U.S. 52, 58-59, (1985). “[A]s a general rule, defense counsel has the duty to 

communicate formal offers from the prosecution to accept a plea on terms and conditions 

that may be favorable to the accused.” Frye, 132 S.Ct. at 1408. “A fair trial does not 

correct trial counsel‟s deficient performance in failing to convey a plea offer because of 

„the reality that criminal justice today is for the most part a system of pleas, not a system 

of trials.‟” Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (quoting Lafler v. Cooper, 

-- U.S. --, 132 S.Ct. 1376, 1381 (2012)). In order to establish prejudice, there must be a 

reasonable probability that the petitioner would have accepted the plea offer had it been 

properly conveyed. State v. Garrison, 40 S.W.3d 426, 431 (Tenn. 2000). 

Petitioner has not shown by clear and convincing evidence either that trial counsel 

failed to communicate a more favorable offer to her or that she would have accepted it 

had it been properly conveyed. Petitioner testified that she was informed by her previous 

attorney about an offer that included serving eight years just before he withdrew from her 

case, but she did not ask trial counsel about the offer. Trial counsel testified that the 

email officially communicating the offer from the prosecutor was contained within the 

case file he received from Petitioner‟s previous attorney. The email “stood out” to him
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because of the offer‟s expiration date. Trial counsel testified that he recalled a sense of 

urgency related to the offer and stated he “must have” discussed it with Petitioner. Trial 

counsel testified that Petitioner was adamant that she would not accept a plea offer that 

included jail time and that she maintained her innocence. Given this testimony, the postconviction court discredited the Petitioner‟s testimony that she would have accepted an 

offer that included eight years of prison time. Additionally, prior to trial, the Petitioner 

officially rejected on the record an offer made “to previous counsel and apparently . . . 

not communicated to [Petitioner] by previous counsel.” From the evidence, it appears 

that this exchange was in reference to the offer contained in the email from the prosecutor 

to the public defender who originally represented Petitioner. Petitioner has failed to show 

by clear and convincing evidence either deficient performance on the part of trial counsel 

for failing to communicate a formal plea offer to her or prejudice in that she would have 

accepted the plea offer had it been properly conveyed. Petitioner is not entitled to relief 

on this basis.

Petitioner also contends that trial counsel was ineffective for advising her not to 

testify on her own behalf. She asserts that, without her testimony to rebut that of the 

confidential informant, Ms. Brady‟s “damaging testimony was left unchallenged by any 

eyewitness who was present at the time of the transaction.” A defendant in a criminal 

case has a fundamental right to testify on her own behalf at trial, which must be 

personally waived by the defendant. Momon, 18 S.W.3d at 161. This Court has 

identified the following five factors that “would tend to indicate ineffective assistance” in 

a case where trial counsel fails to call the defendant to testify:

(1) only the victim and the defendant were present when the offense was 

committed;

(2) only the defendant could present a “full version of her theory of the 

facts”;

(3) the defendant‟s testimony could not be impeached by prior criminal 

convictions;

(4) the defendant could give an account of the relationship with the victim; 

and

(5) the attorney had let in objectionable, prejudicial testimony with the 

intention of clarifying it with the testimony of the defendant.

State v. Zimmerman, 823 S.W.2d 220, 227 (Tenn. Crim. App. 1991) (quoting State v. 

Dorothy Renate Gfeller, No. 87-59-III, 1987 WL 14328, at *5 (Tenn. Crim. App. July 24, 
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1987)); see also Candance Carol Bush v. State, No. M2014-00824-CCA-R3-PC, 2015 

WL 2127982, at *12 (Tenn. Crim. App. May 5, 2015).

In this case, the post-conviction court found that trial counsel discussed with 

Petitioner “at some length” the advantages and the disadvantages of her testifying. Even 

though Petitioner‟s statement about prior drug sales was admitted during the State‟s casein-chief, see Erica Harris, 2013 WL 1190826, at *4 (upholding admission of the 

statement), there remained a risk that the State would use this evidence to impeach her if 

she testified and denied selling drugs. Trial counsel called Petitioner‟s son to present the 

“full version of her theory of the facts,” namely that he and his aunt, not Petitioner, were 

the ones who sold cocaine. Trial counsel testified that there was very little benefit to 

Petitioner testifying other than to deny culpability. According to Petitioner‟s account, she 

and the confidential informant were not the only people present during the transaction.

However, Petitioner‟s sister testified for the State, denying any involvement. Trial 

counsel elected not to call Petitioner‟s husband after determining he would not have 

made a good witness.1 There is no indication that trial counsel “let in objectionable, 

prejudicial testimony with the intention of clarifying it with the testimony of” Petitioner 

or that he made any unfulfilled promises to the jury that Petitioner would testify. See 

Zimmerman, 823S.W.2d at 227. Finally, Petitioner engaged in a Momon colloquy during 

trial; Petitioner has not claimed that the waiver of her right to testify was unknowingly or 

involuntarily made. Therefore, Petitioner has not established that trial counsel was 

ineffective for failing to call her as a witness to testify on her own behalf.2 Petitioner is 

not entitled to relief.

Conclusion

Based on the foregoing, we affirm the judgment of the post-conviction court.

_________________________________

TIMOTHY L. EASTER, JUDGE

 

1 Because Petitioner‟s husband did not testify at the post-conviction hearing, we cannot speculate 

as to what his testimony would have been. Petitioner did not raise the failure to call her husband as a 

witness as a ground for post-conviction relief, but if she had, the burden would have been on her to 

produce him as a witness at the hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

2 Because Petitioner has failed to establish deficient performance, we need not address whether 

trial counsel‟s performance prejudiced the defense. Goad, 938 S.W.2d at 370.