State of Tennessee v. Robert S. Barnes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
June 5, 2007 Session

STATE OF TENNESSEE v. ROBERT S. BARNES

Direct Appeal from the Circuit Court for Lauderdale County
No. 7426 Joseph H. Walker III, Judge

No. W2006-00578-CCA-R3-PC - Filed September 4, 2007

Following a jury trial, the petitioner, Robert S. Barnes, was convicted of reckless endangerment,
attempted rape, robbery, aggravated burglary, and assault. For his convictions, the petitioner was
sentenced as a career offender to an effective sentence of forty-five years for the felony convictions,
plus consecutive sentences of eleven months and twenty-nine days for each of the two misdemeanor
convictions. On direct appeal, this court affirmed the judgments of the trial court. State v. Robert
Sanford Barnes, No. W2003-02967-CCA-R3-CD, 2005 WL 331376 (Tenn. Crim. App., at Jackson,
Feb. 11, 2005). The petitioner filed a timely petition for post-conviction relief which the post-
conviction court subsequently denied after an evidentiary hearing. The petitioner now appeals. In
this appeal, the petitioner contends that his trial counsel was ineffective. Following a thorough
review of the record and the applicable law, we affirm the judgment of the post-conviction court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.
GLENN , JJ., joined.

Ryan B. Feeney, Selmer, Tennessee, for the appellant, Robert S. Barnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey Brewer-Walker, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Background

On direct appeal, this court summarized the relevant facts of the case as follows:

Norris Patricia Wheeler testified that she is Mrs. Verness Johnson’s sister, and, in
July 2001, she lived about seven miles away from the Johnsons’ house. She said that
Mrs. Johnson is seventy-eight years old. Wheeler testified that, on July 23, 2001,
“sometime after lunch,” Mrs. Johnson called “crying and screaming” that she had
been raped and her husband had been injured. During this conversation, Mrs.
Johnson told her that she was afraid to call 911 because the attacker threatened to kill
her and her husband if she called the police. Wheeler said that, immediately after she
spoke with Mrs. Johnson, she called 911, and then she and a friend went over to the
Johnsons’ house.

Wheeler testified that, when she arrived at the Johnsons’ house, the police and
paramedics were already at the house. She stated that paramedics were putting Mr.
Johnson into an ambulance while the police were questioning Mrs. Johnson. Wheeler
stated that, after the police were finished questioning Mrs. Johnson, she then drove
Mrs. Johnson to the hospital where Mr. Johnson was being treated. On
cross-examination, Wheeler testified that, during her initial conversation with Mrs.
Johnson, Mrs. Johnson only identified her attacker as “a colored man.”

Rita Burnett, an officer with the Ripley Police Department, testified that she was one
of the first officers to arrive at the Johnsons’ house on July 23, 2001. She said that
she arrived within minutes of Wheeler’s 911 call. Officer Burnett recalled that two
other officers, Lieutenant Steve Sanders and Officer Richard Tidwell, both arrived
at the same time she did. The officer testified that, when she arrived, “[M]r. Johnson
was on the floor . . . Mrs. Johnson was screaming that he was dead and to get some
help for him, and that someone had forced his way in, beaten her husband and d[one]
things [to] her.” Officer Burnett stated that Mrs. Johnson was clothed and was
“hysterical.” She said that she began trying to calm Mrs. Johnson down, while
Officer Tidwell, a part-time paramedic, assisted Mr. Johnson.

Officer Burnett said that she gathered, from the crime scene, Mrs. Johnson’s
underwear, jeans, blouse, and two wash cloths used by Mrs. Johnson to “wash up,”
and she gave all of those items to Lieutenant Sanders as evidence. The Officer
stated:

[Mrs. Johnson] said that the [Defendant] had come in and just started
beating [Mr. Johnson]. And then [the Defendant] had this fork and
he was telling [Mrs. Johnson] to get in the room. And when she got
in the room, [the Defendant] made her take her clothes off and get on
the bed. Then [the Defendant] got on top of [Mrs. Johnson]. And
[Mrs. Johnson] said that she asked [the Defendant] not to rape her,
and he said that he wasn’t. And he was humping on her and sucking
on her breasts. And then [Mrs. Johnson] said that she believed that
[the Defendant] must have gotten relieved because she felt something
squirt all over her.

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Officer Burnett said that Mrs. Johnson also told her that the Defendant went through
Mr. Johnson’s pockets, and then he asked Mrs. Johnson if she had any money. Mrs.
Johnson said that the Defendant used a metal fork in his attack of the couple. The
officer testified that she went to the hospital with Mrs. Johnson, and she witnessed
Dr. Murray perform Mrs. Johnson’s rape kit. Officer Burnett said that Mrs. Johnson’s
rape kit took about fifteen minutes to perform, and she recalled that Mrs. Johnson
was still very upset during the examination.

The officer said that she was also present when Mrs. Johnson was shown a
photographic line-up at the hospital, at 5:55 p.m. on the day of the incident, and
asked to identify her attacker. She said that the police had the name of a suspect, and
they included a picture of him in the line-up. The officer said that, before showing
Mrs. Johnson the line-up, Mrs. Johnson said that she knew that her attacker’s name
was “Robert B. something” because he had been to the Johnsons’ house earlier the
day of the attack looking for work, and Mr. Johnson had written his name down at
that time. Officer Burnett said that the names of the individuals pictured in the
line-up were on the back of the line-up page, but Mrs. Johnson was not shown these
names before she identified the Defendant. Officer Burnett explained that Mrs.
Johnson took her time with the lineup “[b]ecause she said she didn’t want to make
a mistake,” and, after taking her time, Mrs. Johnson identified the Defendant as her
attacker. The officer said that the Defendant had a “lazy eye” as a distinguishing
physical characteristic. Officer Burnett testified that no one made any suggestion to
Mrs. Johnson about which person to identify. Officer Burnett then identified the
Defendant in court as the man Mrs. Johnson picked out of the photo line-up.

Mrs. Johnson testified that, in July of 2001, she and Mr. Johnson maintained
residences in both Jackson and Ripley, Tennessee, and they split their time between
the two homes. She recalled that, on July 23, 2001, she and Mr. Johnson drove from
Jackson to their home in Ripley, planning to spend the week there. She said that Mr.
Johnson drove them in his truck and that, at that time, he did not have any problems
driving, breathing, or otherwise. Mrs. Johnson testified that, upon arriving at their
home in Ripley, they began unloading the car. She said that Mr. Johnson finished
unloading his things first, and then he sat down at the kitchen table. Mrs. Johnson
explained that she was about to go get another load from the car when she heard a
knock at the door. She said that the side carport door of their home has both a
wooden door and a storm door, and she usually locks both, but on that day she only
locked the interior wooden door. She stated that, when she opened the wooden door,
she noticed that the Defendant had wedged his foot between the two doors. She
testified that the Defendant had a metal fork with him, and kept this fork with him
throughout the entire incident. She said that the Defendant “grabbed” her, and she
began screaming. Mr. Johnson “jumped up from the table” to protect her, and then
the Defendant grabbed Mr. Johnson. She testified that the Defendant choked Mr.
Johnson, and Mr. Johnson fell to the ground. Mrs. Johnson explained that she

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begged the Defendant to quit, and offered him money. She said that the Defendant
began dragging Mr. Johnson to the back bedroom, and, because she was concerned
that Mr. Johnson would be further injured, she helped the Defendant drag Mr.
Johnson. She stated that she thought Mr. Johnson was dying. She stated that the
Defendant would not let her help Mr. Johnson, telling her that Mr. Johnson was not
hurt and she “better be quiet, shut up.”

Mrs. Johnson testified that the Defendant took her into her bedroom and made her
lie down on the bed. She explained:

[The Defendant] made me get up on my bed . . . [and he] tried to
make me take my clothes off. And I don't remember, I was so scared
and frightened, I don't remember taking my clothes off at all. I know
I took part of my-one of my arms out of my bra . . . and he nursed my
breasts, but he never did go up in me.

Mrs. Johnson stated that she told the Defendant she had an incurable sexually
transmitted disease. Mrs. Johnson testified that she had seen the Defendant once
before, when he came looking for work. She said that “when [she and Mr. Johnson]
got to Ripley” the Defendant approached Mr. Johnson and asked for work, and Mr.
Johnson told him that he would let the Defendant know if he had any work for him
in the future. She said that, after the incident, as the Defendant was leaving her house,
the Defendant demanded the twenty dollars she had previously offered to him. She
said that the Defendant also searched Mr. Johnson's pockets. Mrs. Johnson stated
that she did not give the Defendant permission to enter her house or to touch her.
Mrs. Johnson identified the photographic line-up from which she had previously
identified the Defendant as her attacker, and she again identified the Defendant as her
attacker.

Cheryl Manns testified that she is the custodian of records at the Lauderdale County
Baptist Memorial Hospital. Manns produced and testified about Mrs. Johnson's
medical records from the night of July 23, 2001. She said that, according to the
hospital records, Mrs. Johnson arrived at the hospital at 3:20 p.m., and, at 3:39 p.m.,
Mrs. Johnson was admitted and treated by Dr. Murray. She said that Mrs. Johnson
was experiencing pain on the right and left side of her chest. Manns said that,
according to the records, Mrs. Johnson’s daughter signed the records because, due
to Mrs. Johnson’s condition at the time of admission, she was unable to sign. The
records indicated that Mrs. Johnson suffered from an “alleged sexual assault.”
Manns also testified about Mr. Johnson’s medical records from that evening, and she
stated that he was diagnosed with “asphyxiation, strangulation injury, and new right
hemiparesis.” She testified that the records indicated that Mr. Johnson had a
one-inch long laceration on his forehead and suffered shortness of breath.

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Dr. Darrell Murray testified that he was working in the emergency room at the
Lauderdale County Baptist Memorial Hospital on the evening of July 23, 2001, and
he recalled treating Mrs. Johnson. Dr. Murray said that Mrs. Johnson came to the
hospital because of an alleged rape, and he conducted a “rape kit” on Mrs. Johnson.
He testified that Mrs. Johnson's physical exam revealed that the alleged assault did
not result in penetration, and on the rape kit he indicated that there was attempted
penetration of the vagina. He said that the swabs taken during a rape kit examination
are sent to a laboratory for microscopic examination to detect the presence of sperm.

Special Agent Lawrence James, a special agent and forensic scientist with the
Tennessee Bureau of Investigation (“TBI”), testified as an expert witness on DNA
analysis. Agent James testified that, during this investigation, he analyzed the panties,
blue jeans, blouse, two wash cloths, the rape kit, and swabs taken from the victim,
which were all submitted to the TBI crime lab for testing. He noted that the rape kit
victim information sheet stated that the victim had no consensual sexual activity in
the seventy-two hours preceding the incident on July 23, 2001. Agent James testified
that the tests conducted revealed the presence of sperm, and he matched the
Defendant’s DNA to DNA present on Mrs. Johnson’s blue jeans. The agent said he
was unable to get a DNA profile from the sperm sample found on the vaginal swabs
because the sample was too small. The agent said that he did not examine or test the
other items because the DNA match from the jeans was sufficient to determine from
whom the sperm originated.

Samantha Wolfe testified that she works at the Jackson-Madison County General
Hospital as the custodian of records, and she testified about Mr. Johnson's medical
records. Wolfe said that, according to the records, Mr. Johnson was diagnosed with
“acute left hemisphere cerebrovascular accident secondary to internal carotid
occlusion.” The records also indicated that Mr. Johnson was diagnosed with
“chronic aspiration syndrome, secondary to [the above condition]. . . .” The records
indicated that Mr. Johnson received intensive neurological care, but continued to
suffer from dense right hemiparesis. Wolfe testified that the transfer form from the
Ripley hospital indicated that Mr. Johnson had suffered a twenty minute loss of
consciousness, resulting from strangulation, and that his symptoms were
“unobtainable from [Mr. Johnson] due to a dense aphasia.” Wolfe continued, noting
several more descriptions of neurological damage and injuries to the neck and area
of the carotid artery, all of which were caused by strangulation.

Elaine Matthews, the Johnsons’ daughter, testified that, before the incident in July
2001, she frequently visited her parents, in Jackson and in Ripley, and her father was
an active man. Matthews testified that, on July 23, 2001, she drove to Ripley
immediately after receiving a call from her mother about the attack. She testified that
her mother told her that “Robert B.” attacked her and that Mr. Johnson knew him.

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Lieutenant Steve Sanders, an investigator for the Ripley Police Department, testified
that, when he arrived, he found Mrs. Johnson screaming that her husband was dying.
He said that he followed Mrs. Johnson down the hall to locate Mr. Johnson, and he
found Mr. Johnson lying on his back on the bedroom floor, gasping for breath. The
lieutenant stated that, when Mrs. Johnson was more calm, she told the officers what
happened, and told the officers that she knew the man who had attacked her as
“Robert B.” Lieutenant Sanders recalled that Mr. Johnson was in “serious condition”
and had red marks on his neck and a laceration on his forehead.

Lieutenant Sanders said that he knew of two men by the name of “Robert B.” in the
area, one of whom was the Defendant. He said that the Defendant lived within a
quarter mile of the Johnson’s house, and he decided to place the Defendant’s picture
in a photographic line-up with several other men to show to Mrs. Johnson. The
lieutenant said that he placed the names of the individuals on the back of the line-up,
and he showed it to Mrs. Johnson, with the name-side down. He said that she
carefully reviewed the photographs and then identified the Defendant as the man who
attacked her. Lieutenant Sanders testified that he searched for the Defendant, both in
and out of Tennessee, and he ultimately located the Defendant in Tampa, Florida. He
explained that, after locating the Defendant, he obtained a blood sample that he
submitted to the TBI for comparison to the sperm found on Mrs. Johnson’s blue
jeans. He said that he received a report from the TBI crime lab indicating that the
Defendant's DNA matched DNA found on Mrs. Johnson’s blue jeans.

The Defendant testified that his most recent address in Ripley, Tennessee was on
Chickasaw Street, and he has not resided with his grandmother at 206 Cleveland,
which is on the Johnsons’ street, since 1993. The Defendant said he did not commit
any of the crimes that he is charged with. He testified that he is five feet and eleven
inches tall and weighs 185 pounds, and, in July of 2001, he was a weightlifter and
weighed 210 pounds. He noted that his most distinguishing physical feature is his
“bad eye.” The Defendant said that he is a handyman and works various odd jobs.
He recalled that, on July 23, 2001, he went to a neighbor’s house to mow the yard
and wash the car. After completing his work there, he went over to Mrs. Johnson’s
house. He testified that, when he arrived at around 11:00 a.m., Mr. Johnson was not
at home, and Mrs. Johnson was standing between the doors. He said that he asked if
she had any work for him to do, and she told him no but invited him in. The
Defendant testified that he informed Mrs. Johnson that he needed money. Mrs.
Johnson told the Defendant that he was dirty, and he explained that he had been
doing yard work for his neighbor. The Defendant testified that he had been to the
Johnsons’ several times prior to this day, and he and Mrs. Johnson “would always
talk and things like that.” He said, “[Mrs. Johnson] would always touch me on the
arm, touch me on the hand.” He explained that he did not think Mrs. Johnson
intended anything sexual in these actions at first, but he later realized that she “had
a special liking for [him].”

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 The Defendant testified that he “always” asked Mrs. Johnson for money, and on that
day, he again asked Mrs. Johnson for money. He said that she responded that he
“never pay[s][her] back.” He said that they continued talking and “one thing led to
another.” He said that Mrs. Johnson carried some money into the bedroom and placed
it on the bed, and she took her clothes off. He testified that he did not want to have
intercourse with her, but when she “touched [his] private spot” over his pants, he
became physically aroused and removed himself from his pants. He stated that he
requested that she perform fellatio on him, which she declined, but she “held it, and
was playing with it.” He said that, when he climaxed, his semen must have fallen
onto her pants. The Defendant testified that, afterwards, he asked her for money, and
she gave him twenty-three dollars. He said that Mrs. Johnson went into the
bathroom, where he said he heard the water start running, and returned with a wet
soapy towel and wiped him off. He estimated that, at this point, it was approximately
11:25 a.m. The Defendant denied threatening Mrs. Johnson or wielding a fork. He
said that he never nursed Mrs. Johnson’s breasts. He testified that he left the house
at approximately 11:45 a.m.

The Defendant testified that, after leaving the Johnsons’ house, he began to walk
down Cleveland street, where Michael Bates, who happened to be driving by,
stopped and gave him a ride to meet with his probation officer and his parole officer.
The Defendant testified that he did not return to the Johnsons’ house after the prior
visit. He said that he had known the Johnsons for approximately fourteen years,
having done work for Mr. Johnson’s uncle and having met Mrs. Johnson
approximately fourteen or fifteen times.

Robert Madden testified that the Defendant came to his office for an appointment on
July 23, 2001, and he produced a report sheet to support this. He said that he was
unable to locate the time sheet, but he believed the Defendant came to his office
sometime before lunch, estimating that it was mid-morning, around 10:00 or 10:30
a.m. On cross-examination, Madden testified that he could not be sure what time the
Defendant came to his office.

Austin Thompson, Jr., testified that he was aware of the incident that occurred at the
Johnsons’ house in 2001, but he did not remember the specific day that it occurred.
He said that he remembered that the Defendant came to his house to do yard work.
On cross-examination, Thompson admitted that he did not know whether he saw the
Defendant on July 23, 2001.

Barnes, 2005 WL 331376, at *1-6.

II. Post-Conviction Hearing

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 At the post-conviction hearing, the petitioner’s pretrial counsel testified that she worked as
an assistant public defender and was appointed to represent the petitioner in general sessions court.
According to pretrial counsel, there was a two year delay between the time the petitioner had
committed the criminal offenses and the time he was charged. Pretrial counsel explained:

[W]hen the case originally occurred and [law enforcement] were investigating, [the
petitioner] left Lauderdale County and I believe went to the state of Florida, and was
down there for period of time . . . . [W]hen he came back to Lauderdale County I
think is when the case picked up and they further prosecuted it.

Pretrial counsel testified that at the time of the preliminary hearing, the victim, Mrs. Johnson, had
difficulty identifying the petitioner as the person who attacked her. The case was nevertheless bound
over to the grand jury. After the petitioner was indicted, pretrial counsel withdrew whereupon the
district public defender (trial counsel) took over the petitioner’s case. Pretrial counsel noted that
although the victim had difficulty identifying the petitioner at the preliminary hearing, both she and
trial counsel were aware that the victim had made a positive photographic identification of the
petitioner soon after she was attacked. Pretrial counsel noted that at the time of her representation
of the petitioner, his identity was an issue. However, pretrial counsel left the decision to file a
motion to suppress the photographic lineup with trial counsel.

Pretrial counsel testified that on May 18, 2003, after the preliminary hearing, the petitioner
wrote a letter of complaint and sent the letter to the Board of Professional Responsibility. In the
letter, the petitioner asserted that his constitutional rights were being violated as the sheriff’s
department was repeatedly pulling him out of jail in an effort to get him to make a statement.
Pretrial counsel stated that once the petitioner invoked his right to have an attorney present, the
petitioner was no longer approached by the sheriff’s department. Pretrial counsel said that at no time
did the petitioner express displeasure with her representation or ask her to withdraw as his attorney.
Pretrial counsel could not recall whether she discussed sentencing with the petitioner as he had yet
to be indicted by the grand jury at the time of her representation.

Trial counsel testified that he had been the district public defender since 1990. He undertook
representation of the petitioner some time after the petitioner’s preliminary hearing. Trial counsel
stated that he was familiar with the victim’s testimony at the preliminary hearing. Although he was
aware of the victim’s difficulty in identifying the petitioner at the preliminary hearing, he did not file
a motion to suppress the victim’s identification of the petitioner from the photographic lineup
because the identification was made shortly after the victim was attacked and there was no indication
that the photographic lineup was unduly suggestive. However, trial counsel noted that he utilized
the victim’s testimony from the preliminary hearing in effort to impeach her identification of the
petitioner at trial.

According to trial counsel, the petitioner admitted to being at the victim’s home on the day
the crimes took place. As a result, the defense theory at trial was not identity. Trial counsel
explained: “It was basically that [the petitioner] had gone [to the victim’s home] earlier in the day,

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had left, and what we attempted to do was show that [the petitioner] didn’t go back during the time
frame that was alleged by [the victim].”

Trial counsel testified that he met with the petitioner at least six times and that this defense
strategy was discussed with the petitioner prior to trial. Trial counsel did not recall whether he
discussed sentencing issues with the petitioner but asserted that such discussion was normally part
of his representation. Trial counsel explained:

I would have met with [the petitioner] and told him what’s he’s charged with
and the range of punishment for each of those charges. And that happened to be, I
believe, four Class B felonies and one Class C felony. And each Class B felony –
and they had given us notice that he was a career offender. Each Class B felony
would carry up to 30 years. I would have told him that.

. . . I have no specific recall. But I would have gone over with him the statute
that deals with consecutive versus concurrent sentences.

However, trial counsel did recall discussing the petitioner’s status as a career offender, stating:

[I]t was my opinion, and we discussed this, that there was a problem with the State’s
notice of [the petitioner] being a career offender, which I addressed to the Court
during sentencing and also on appeal. Evidently . . . the Court didn’t agree with my
feelings on that, but we discussed that in detail.

Trial counsel testified that the petitioner was ultimately convicted of three Class C felonies
and two misdemeanors and received an effective sentence of forty-seven years at sixty percent.
Although he did not specifically tell the petitioner that he would face up to forty-seven years, he told
the petitioner that he was looking at thirty years for each B felony charged in the indictment. Trial
counsel denied telling the petitioner he would not get a sentence greater than fifteen years total. Trial
counsel said:

No, I never assured him, because I don’t make promises. Now, I might have
told him . . . after his convictions . . . I think that [he] probably won’t get more than
15 years here or 16 or 17 years. But I didn’t tell him at any time that he would only
get 15 years.

Trial counsel stated that he and the petitioner did not discuss the petitioner’s willingness to pursue
plea negotiations with the state because “[t]here was never a plea offer.” Trial counsel also noted
that he was surprised when the trial court ordered the defendant to serve his sentences consecutively
rather than concurrently.

Trial counsel testified that he met with the petitioner a number of times. During these
meetings, the petitioner told him of his whereabouts the day of the crimes and provided names of

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witnesses who could corroborate his story. Trial counsel stated that he contacted or attempted to
contact these potential witnesses. He recalled that the petitioner gave him the name of Kendrick Lee.
According to the petitioner, Mr. Lee gave him a ride to a convenience store where the petitioner
cashed a check around the time the crimes occurred. However, Mr. Lee could not be located though
trial counsel attempted to contact him several times. On one occasion, he spoke with Mr. Lee’s
parents concerning his whereabouts and he was told that Mr. Lee had gone to Indiana and could not
be reached. Trial counsel also recalled that either Eilene Palmer or Ms. Cannon1 would have
testified that the petitioner mowed her yard the morning of the crimes. Although trial counsel could
not remember the details, he recalled that one of the two women was deceased.

Trial counsel testified that some of the potential witnesses listed by the petitioner could not
be reached, or they were not material to the petitioner’s defense. However, other witnesses testified
on behalf of the petitioner. According to trial counsel, the petitioner’s probation officer, Robert
Madden, testified that the petitioner went to see him the day of the crimes. Another witness, Austin
Thompson, testified that the petitioner worked on his yard on the day of the crimes. Trial counsel
reiterated that the petitioner’s identity was irrelevant because the petitioner admitted that he had been
at the victim’s house the day the crimes took place. Trial counsel noted that he did not know the
petitioner was going to testify until right before the petitioner took the stand.

Trial counsel testified that he hired a private forensic laboratory to analyze the TBI’s DNA
analysis, which connected the petitioner to the crime. Trial counsel explained:

I had a referral concerning a DNA expert who works in the Arkansas forensic
laboratory, who does private work. His name is Kermit Channel. I called him and
talked to him, and he told me to get the report from the TBI concerning their DNA
analysis, which I did.

. . . Mr. Channel [was] to look at their analysis . . . and see if he could detect
anywhere from their lab work that they may have made a mistake in connecting [the
petitioner’s] DNA to the DNA that they found on the [victim’s] blue jeans.

. . . [H]is conclusions [were] that there was no mistake . . . .

Trial counsel stated that he did not call Mr. Channel as an expert witness because Mr. Channel’s
findings confirmed the state’s conclusion that the petitioner’s DNA was found on the victim’s
clothes. Trial counsel said he was not surprised by Mr. Channel’s findings because the petitioner
admitted to having sexual contact with the victim which resulted in sperm being produced at the
crime scene.

The petitioner testified that his pretrial counsel did not represent him properly because she
failed to file a motion to dismiss the charges against him when the victim could not identify him as

1
No first name is provided in the record.

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her assailant at the preliminary hearing. The petitioner stated that he complained about pretrial’s
representation in a letter addressed to the Board of Professional Responsibility. The petitioner
testified that he only met with trial counsel three times prior to his trial. The petitioner complained
that he informed trial counsel that the victim made mistakes in identifying him as her assailant, but
yet, trial counsel failed to develop an adequate defense strategy. The petitioner said he believed that
a detective coerced the victim into identifying him at the photographic lineup.

The petitioner testified that his trial counsel should have explained to the jury the erroneous
DNA test results. The petitioner stated:

That right there could have changed things. They already took one DNA test
from me that said negative in prison. Then they come back and took another DNA
test. It said negative, and they took an ink pen and marked through it and wrote in
positive. I asked [trial counsel] how come he don’t show that to the jury . . . . If it
said negative, why did they mark through it with an ink pen and wrote positive?

The petitioner recalled that trial counsel told him to be patient, however, the petitioner recounted that
“I jumped up myself and said something, and Your Honor told me to sit down. I jumped up again,
trying to explain to them this [report] right here can show the jury that I didn’t do this.” The
petitioner then recounted that he jumped up several times at trial and punched trial counsel to let him
know to address the lies the witnesses were telling. He stated “I done everything but kicked him.
I punched, said ‘[trial counsel]’ she lying now. You caught her in a lie now. Now catch her. Put
perjury charges on her.”

The petitioner testified that he gave a list of potential witnesses to trial counsel. However,
trial counsel failed to investigate some of these witnesses. The petitioner explained that his aunt,
Eilene Palmer, would have testified that he did not live in the area where the crimes occurred. He
said:

Well, they saying that I was living on Cleveland Street, which is right down the street
from where . . . [the crime] happened at. But I wasn’t living on Cleveland Street.
Last time I lived on Cleveland street was in 1994. I just got out of prison. I did
eight years. I got out in 2001. I was living with my Aunt Eilene. Me and my Aunt
Eilene had a altercation, and [I was taken] out to 19 to Roland and Martha Lee’s
house, and I was living in their trailer. The next day is when this went on.

According to the petitioner, trial counsel told him that Eilene Palmer was dead, but the petitioner
later discovered she was not dead. The petitioner insisted that Eilene Plamer would have verified
that he was living “at least 15, 20 miles away” from the crime scene. However, the petitioner
admitted that he told the jury that he went over to the victim’s house.

The petitioner testified that he was unsatisfied with the representation of counsel at trial but
did not inform the court there was problem. He explained:

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 I had got up so much the judge told me . . . if I get up again or make any other
outburst, they’re going to have the trial without me. And I know I was doomed then.
So I had to sit there and bite that bullet. I had got up . . . six times a day, so that lets
you know there was problem.

The petitioner asserted that trial counsel did not explain consecutive sentencing and told him that
he “wasn’t going to get no more than 10 to 15 years.” The petitioner further asserted that he would
have instructed trial counsel to make plea offer had he known there was a possibility of getting 47
years.

In a written order, the post-conviction court denied relief. The court accredited the testimony
of trial counsel and noted that “[s]ome statements of the [p]etitioner at this hearing were beyond
belief.” After specifically addressing the petitioner’s allegations, the court found that the petitioner
failed to prove his allegations by clear and convincing evidence.

III. Analysis

In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the
allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless
the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings, such as
findings concerning the credibility of witnesses and the weight and value given their testimony, is
de novo with a presumption that the findings are correct. See id. Our review of the post-conviction
court’s legal conclusions and application of law to facts is de novo without a presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

In order to establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense rendering the outcome unreliable or fundamentally unfair. See Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient
performance is shown if counsel’s conduct fell below an objective standard of reasonableness under
prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn.1975) (establishing that representation should be within the range of competence
demanded of attorneys in criminal cases). A fair assessment of counsel’s performance, “requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or
tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell
below a reasonable standard, the petitioner must also prove prejudice. Prejudice is shown if, but for

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counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding
would have been different. Strickland, 466 U.S. at 694. Both deficient performance and prejudice
must be established to prove ineffective assistance of counsel. Id. at 697. If either element of
ineffective assistance of counsel has not been established, a court need not address the other element.
Id. In considering claims of ineffective assistance of counsel, “[w]e address not what is prudent or
appropriate, but only what is constitutionally compelled.” United States v. Cronic, 466 U.S. 648,
665 n.38 (1984).

On appeal, the petitioner contends that he received the ineffective assistance of his trial
counsel. In particular, the petitioner first claims that trial counsel was ineffective for failing to
challenge the victim’s identification of the petitioner from a photographic lineup. The petitioner
submits that without this identification “the issue of the identity of the assailant would have been
much more difficult to establish.”

In denying this particular claim, the post-conviction court accredited the testimony of trial
counsel and found the following:

[Trial counsel] was not deficient in handling any issue with regard to identity.
The [petitioner] maintained that he was at the scene of the crimes, which was
confirmed by DNA. The [petitioner] maintained that his actions were not a crime,
but consensual sex. He denied the other crimes. [The petitioner] told [trial counsel]
that the victims knew him and [the petitioner] never gave his [trial counsel] reason
to file a motion to suppress the photo identification.

Upon review, it is abundantly clear that the record does not preponderate against the post-
conviction court’s findings. Notwithstanding the victim’s photographic identification of the
petitioner, there was ample proof, including the petitioner’s own testimony, which placed the
petitioner at the victim’s house and connected him to the crimes. Accordingly, we conclude that the
petitioner has failed to show either deficient performance by counsel or resulting prejudice, and the
issue is without merit.

The petitioner next claims that trial counsel failed to diligently pursue investigation of
potential alibi witnesses such as Kendrick Lee and Eilene Palmer. However, the petitioner failed to
present these witnesses at the evidentiary hearing. In order for a petitioner to establish he was
prejudiced by his attorney’s failure to discover, interview, or present a witness at trial, the petitioner
must have this witness testify at the post-conviction hearing. See Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). “It is elementary that neither a trial judge nor an appellate court can
speculate or guess on the question of whether further investigation would have revealed a witness
or what that witness’ testimony might have been if introduced by defense counsel.” Id. As such,
the petitioner’s failure to call these potential alibi witnesses at the post-conviction hearing precludes
our review of this issue. In addition, the record reflects that trial counsel diligently pursued
investigation of all potential defense witnesses and certain witnesses could not be located or were
not relevant to the petitioner’s defense. Furthermore, the petitioner’s claim would ignore his own

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testimony that he visited the victim’s home and at such time had consensual sexual contact with the
victim. Given petitioner’s testimony at trial, we fail to see how trial counsel was deficient in not
pursuing an unworkable alternative theory of mistaken identity and alibi. Clearly, the petitioner has
failed to prove counsel’s performance was deficient and that there is a reasonable probability that,
but for counsel’s alleged error, the outcome of the proceeding would have been different. The issue
is without merit.

The petitioner next claims that counsel was ineffective by failing to investigate a check the
petitioner alleges he received from Ms. Cannon and cashed on the day of the crimes. Specifically,
the petitioner asserts that “the date and time stamp placed on the check by the bank would have
established the petitioner’s whereabouts with certainty at a particular time and could have helped
buttress the other testimony as to the petitioner’s course of actions on that day, all serving to
establish his alibi at the time of the crime.” In our view, the petitioner’s argument is once again
misplaced. The petitioner offered no proof at the evidentiary hearing to support this claim. In
contrast, however, trial counsel testified that he contemplated investigating the check but did not
because the time frame in which the petitioner allegedly cashed the check did not correlate to the
time of the crimes. We note that the post-conviction court accredited the testimony of trial counsel
and found that he was “not deficient in handling any issue regarding identity.” Furthermore, as
previously noted, the petitioner testified that he was at the crime scene, and his testimony was
corroborated by the victim’s testimony as well as DNA evidence. As such, we conclude that the trial
court properly found that the petitioner failed to prove this allegation by clear and convincing proof
and is not entitled to relief.

The petitioner next claims that trial counsel was ineffective in failing to object to the
admission of the DNA test report connecting the petitioner to the crime scene because the report
indicated a “negative result,” thus rendering the report inadmissible. However, the record of the
petitioner’s trial reflects that trial counsel effectively raised this inconsistency. When questioned by
trial counsel, Special Agent Lawrence James explained that he found the presence of sperm after he
conducted a second test; therefore, he marked out the initial “negative” finding and marked the
finding “positive.” Also, the record shows that the petitioner relied on the DNA report to support
his testimony that he had consensual sexual contact with the victim earlier in the day and it was
someone else who later attacked the victim. When asked why his DNA profile matched the sperm
found on the victim’s pants, the petitioner responded:

[The report] got the “Exhibit R. Barnes,” which stands for Robert Barnes,
which would be me. Now they said also that they found it in the blue jeans. Now,
if they found it in the blue jeans, then that would be making me tell the truth, because
if I’m standing up and ejaculate, it would drop down into the [victim’s] pants.

But now I ask you to look at this closely. There was nothing found in her
vagina that said it was mine, but they also said that there was some in the swab.
Now, you going to go back up and look at that where it says that? Because it said

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 that there was some in the swab. So that means either one of two things, that
somebody else was there or somebody came after me.

In other words, the record indicates that the petitioner conceded at trial that he left DNA evidence
at the crime scene. Furthermore, trial counsel testified that he privately retained a defense expert,
who confirmed the veracity and authenticity of the state’s DNA report. In its order, the post-
conviction court found no merit to this allegation. We agree. This allegation fails for lack of proof
and is entirely without merit.

The petitioner next claims that trial counsel was ineffective in failing to advise him on the
possibility of consecutive sentencing. Specifically, the petitioner asserts that trial counsel knew that
the petitioner was eligible for consecutive sentencing, yet he said the petitioner would get between
15 to 17 years if convicted. The petitioner asserts, that if he had known he was subject to a potential
sentence of 140 years,2 he would have insisted on entering into plea negotiations with the state.

At the post-conviction hearing, trial counsel testified that he generally told his clients of the
possible sentences they might receive if convicted. According to trial counsel, he would have told
the petitioner that he faced up to 30 years for each Class B felony charged in the indictment. He also
would have gone over the statute that dealt with consecutive versus concurrent sentences. The post-
conviction court accredited the testimony of trial counsel and found there was no deficiency. We
agree. The record is devoid of evidence to support the petitioner’s claim that trial counsel failed to
tell the petitioner about the possibility of consecutive sentencing. Furthermore, the petitioner has
failed to establish prejudice by clear and convincing evidence, i.e., that but for his attorney’s alleged
failure to inform him of all the potential sentencing consequences, he would have pled guilty and
faced the same potential sentencing consequences. Also, the petitioner failed to present any evidence
of a plea offer by the state. Therefore, we conclude that the petitioner has failed to carry his burden.
The issue is without merit.

Finally, the petitioner claims that the post-conviction court erred when it analyzed his
allegations solely under the standard set forth in Strickland v. Washington without consideration of
the standard enunciated in United States v. Cronic, 466 U.S. 648 (1984).

Upon review, we initially note that this claim the petitioner now raises on appeal was not
made in his petition or argued to the post-conviction court at the evidentiary hearing. As such, this
claim is waived. See Tenn. Code Ann. § 40-30-106(d); State v. Alder, 71 S.W.3d 299, 303 (Tenn.
Crim. App. 2001); State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).

However, notwithstanding waiver, the petitioner’s claim is without merit. In Cronic, the
United States Supreme Court explained that:

2
The petitioner calculates his potential sentence by adding together 30 years for each Class B felony he was
charged with, and 15 years for the Class C felony, and 5 years remaining on a prior sentence.

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 [t]he right to the effective assistance of counsel is thus the right to require the
prosecutor’s case to survive the crucible of meaningful adversarial testing. When a
true adversarial criminal trial has been conducted-even if defense counsel may have
made demonstrable errors-the kind of testing envisioned by the Sixth Amendment
has occurred. But if the process loses its character as a confrontation between
adversaries, the constitutional guarantee is violated.

Cronic, 466 U.S. at 656-657. The Court then noted limited “circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at
658. The Court cited such circumstances as: (1) the complete denial of counsel where the accused
is denied the presence of counsel at a critical stage; (2) where counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing; and (3) where counsel is available to assist the
accused during trial, but the likelihood that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice is appropriate without inquiry into
the actual conduct of the trial. Id. at 659-60.

The Supreme Court later clarified that “[w]hen we spoke in Cronic of the possibility of
presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that
the attorney's failure must be complete. We said ‘if counsel entirely fails to subject the prosecution's
case to meaningful adversarial testing.’” Bell v. Cone, 535 U.S. 685, 696-97 (2002) (quoting Cronic,
466 U.S. at 659) (emphasis added). The Court then explained that if a petitioner’s claims are based
on specific errors rather than a complete failure by counsel to subject the prosecutor’s case to
meaningful adversarial testing, then counsel’s performance is subject to Strickland’s two-prong test
based on performance and prejudice. See id. at 697-98. In this case, the petitioner does not provide
any evidence to support a claim that trial counsel’s errors essentially amounted to a complete denial
of counsel. Therefore, Cronic is inapplicable, and the petitioner is not entitled to relief.

CONCLUSION

The petitioner has failed to meet his burden of proof regarding his claims of ineffective
assistance of counsel and the post-conviction court correctly denied the petition. Therefore, the
judgment of the post-conviction court is affirmed.

___________________________________
J.C. McLIN, JUDGE

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