Joseph Newton v. State of Tennessee

11/29/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 12, 2017 Session

JOSEPH NEWTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2010-D-2957 Seth W. Norman, Judge
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No. M2016-02240-CCA-R3-PC
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A jury convicted the Petitioner, Joseph Newton, of rape, and he was sentenced to serve
eight years in prison. In his motion for a new trial, the Petitioner alleged that he was
denied his constitutional right to the effective assistance of his trial counsel. The trial
court denied the motion, and this court affirmed the Petitioner’s conviction on appeal.
The Petitioner filed a timely post-conviction petition, alleging ineffective assistance of
counsel at the motion for a new trial and on appeal, and the post-conviction court denied
his petition. On appeal, he asserts that his counsel were deficient in bringing claims
against trial counsel prematurely, in failing to call witnesses and investigate, and in
omitting issues on direct appeal. He contends he is entitled to relief based on cumulative
error. After a thorough review of the record, we conclude that the Petitioner did not
receive the ineffective assistance of his counsel, and we affirm the post-conviction
court’s judgment.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

John M. Ballard, Nashville, Tennessee, for the appellant, Joseph Newton.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn Funk, District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.
 OPINION

FACTUAL AND PROCEDURAL HISTORY

Trial

The Petitioner was tried and convicted of raping the victim after she entered his
taxicab seeking a ride home because she was too intoxicated to drive. The Petitioner
initially denied having any knowledge of the victim. DNA evidence established that the
Petitioner was the rapist.

At trial, the victim testified that she was very intoxicated on the evening of the
rape, that the employees of a bar where she had been drinking put her into a taxi when the
bar closed around 3:00 a.m., and that the driver of the taxi, the Petitioner, drove her to an
isolated location and raped her. The victim was able to escape the taxi after the rape, and
she fled to a nearby area that was well-lit. She summoned the police and was taken to the
hospital, where medical personnel collected physical evidence and treated her for any
potential infections that may have been transmitted to her during the rape. Trial counsel
cross-examined her regarding a statement she made at the hospital that her attacker was a
medium-skinned African American man with a foreign accent and a statement she made
a few days later describing him as light-skinned. She agreed that the Petitioner, who was
an immigrant from Ghana, was not light-skinned.

An employee of the bar where the victim had been drinking confirmed that she
was extremely intoxicated and that he procured a taxi for her. He testified that the taxi
which ultimately took the victim was not summoned via telephone. Instead, he exited the
building with the victim and hailed the taxi from across the street. Because of a prior
experience with a violent taxi driver, the employee noted the taxi’s number. He was able
to tell police that the taxi was Allied taxicab number 70, 71, or 77.

Police collected DNA evidence from the drivers of these three taxis. Detective
Robert Carrigan testified that he went to a gas station to interview the Petitioner and
another taxi driver who was under suspicion. He asked the Petitioner about the case and
showed the Petitioner a photograph of the victim. The Petitioner “denied ever having
seen her, ever met her, denied ever giving her a ride, ever picking her up in the
Hillsboro/21st Avenue area.” Detective Carrigan confirmed that the Petitioner denied
being acquainted with the victim or having had any sexual contact with her. Detective
Carrigan proceeded to collect DNA evidence from both the drivers at the gas station.
Trial counsel cross-examined Detective Carrigan and other witnesses about the chain of
custody of the evidence, implying that the Petitioner’s DNA sample had been switched
with the other sample which was collected simultaneously.
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 The Petitioner was the driver of Allied taxi number 70, and his DNA matched the
sperm recovered from the victim. An expert in serology testified that the probability of
an individual other than the defendant having the same DNA profile was greater than the
world population.

The victim was presented with two photographic lineups prior to the time that
suspicion had settled on the Petitioner. Neither contained a photograph of the Petitioner,
and the victim did not make an identification from either lineup. After the results of the
DNA testing came back to police, the victim was shown a photographic lineup including
the Petitioner’s picture. She was not told that there had been a match to the recovered
DNA. She identified the Petitioner as her assailant, stating that she was seventy percent
sure he was the rapist. She testified that she meant she was “pretty darn sure.”

During opening statements, trial counsel asked the jury to keep an open mind
because they would hear the Petitioner testify to his version of events. At the close of the
State’s proof, the Petitioner elected not to testify. In closing argument, trial counsel
conceded that the victim had been raped and that consent was not an issue. He argued
that there was very little incriminating evidence aside from the DNA and that the DNA
samples could have been switched.

The Petitioner was charged with rape by force or coercion in count one and with
rape of a person who was mentally incapacitated or physically helpless in count two. The
jury convicted the Petitioner of rape in count one and of the lesser-included offense of
assault by provocative contact in count two, and the two counts were merged into a single
conviction.

Sentencing and Motion for a New Trial

At the sentencing hearing, the Petitioner testified that he was “100 percent”
innocent and that he had been unable to defend himself against the charges because he
was never told when the alleged rape occurred. He testified that he listened to the
testimony at trial, including that of the victim, but that he had no idea what day the victim
was raped. He agreed that he had told police that he did not know the victim, that he had
never seen her, and that she had never been in his taxi. He argued that the victim had at
one point described him as light-skinned. The trial court, finding that the Petitioner was
dishonest and unremorseful in his testimony, denied alternative sentencing and sentenced
the Petitioner to serve eight years in prison.

The Petitioner retained two new attorneys, one of whom represented him after
sentencing and through the hearing on the motion for a new trial (“successor counsel”)
and one of whom also represented him on appeal (“appellate counsel”). New counsel
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procured an order allowing further testing of the DNA evidence through an independent
agency. At the motion for a new trial, the Petitioner challenged the sufficiency of the
evidence and his sentence. He also asserted that trial counsel had been ineffective in
announcing to the jury during opening statements that the Petitioner would testify, in
pursuing a strategy of mistaken identity rather than consent, and in conceding elements of
the crime in closing arguments.

Trial counsel testified at the hearing on the motion for a new trial that he knew that
the State would introduce DNA evidence that the Petitioner was the perpetrator. Trial
counsel had frequent contact with the Petitioner prior to trial, and “[t]he defense shifted
weekly from not there, to it was consensual, to even she attacked him.” Trial counsel had
advised the Petitioner that the best defense strategy was to claim that the victim had
consented, and trial counsel prepared to cross-examine the victim extensively.

On the day of trial, the Petitioner, against trial counsel’s advice, insisted both that
he would testify and that his testimony would be that the State was mistaken about his
identity and that he was not the rapist. Trial counsel “had to scrap whatever consent
defense [he] had crafted” because it would have been difficult to pursue a strategy at odds
with his client’s anticipated testimony. Trial counsel agreed that a consent defense would
also have been difficult to establish because Detective Carrigan had recorded the
interview in which the Petitioner denied having any knowledge of the victim, having had
the victim in his taxi, or having had sex with the victim. Trial counsel recalled that in the
recording, “upon providing the swab, [the Petitioner] said, well, if it turns out to be me,
maybe I gave her a ride.” Trial counsel agreed that the victim was a strong witness and
that the fact that she called the police immediately after the crime at 3:00 or 4:00 a.m.
from an apartment complex she had reached on foot appeared inconsistent with consent.
Trial counsel testified that it was the Petitioner’s choice not to testify. He did not think
that testimony from the Petitioner would have helped the defense.

The Petitioner did not testify at the motion for a new trial. The trial court found
that “everything that [trial counsel] did was effective in this matter.” On appeal, the
Petitioner raised only the ineffective assistance of counsel claims, and this court denied
relief. State v. Joseph Newton, No. M2014-00603-CCA-R3-CD, 2015 WL 1543386, at
*8 (Tenn. Crim. App. Apr. 2, 2015), perm. app. denied (Tenn. July 17, 2015).

Post-Conviction

The Petitioner filed a post-conviction petition, alleging various deficiencies at all
stages of his representation. In particular, the Petitioner alleged that successor counsel
prematurely brought claims of ineffective assistance of counsel, that he should have been
called to testify at the motion for a new trial, that his attorneys failed to present an alibi
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witness, that appellate counsel was deficient in failing to raise various issues, and that he
was entitled to relief for cumulative error.

At the hearing, successor counsel testified that he spoke to the Petitioner about the
various issues that could be raised on appeal. The Petitioner wanted to pursue an
ineffective assistance of counsel claim. Successor counsel testified that he had a lengthy
period of time to prepare for the hearing and that he felt he could adequately raise an
ineffective assistance of counsel claim on direct appeal because he was able to fully
review the record, investigate and present evidence, and essentially treat the hearing on
the motion for a new trial as a post-conviction hearing. Successor counsel discussed with
the Petitioner whether or not the Petitioner should testify at the motion hearing, and the
Petitioner made the choice not to testify. Successor counsel noted that the primary
alleged deficiency was that trial counsel had rashly promised the jury that the Petitioner
would testify, and successor counsel did not believe that the Petitioner’s testimony would
have had any bearing on that subject. The Petitioner never told successor counsel that he
had been prevented from testifying at trial, and successor counsel’s review of the record
revealed that the Petitioner had been thoroughly advised of his rights when he decided
not to testify.

Successor counsel testified that the Petitioner continued to assert his innocence
throughout his representation but that the Petitioner did so under two inconsistent
theories: mistaken identity and consent. He testified that the victim left the bar at around
3:00 a.m. and that there was only a lapse of around forty-five minutes to an hour before
she called police to report the crime, making the Petitioner’s claim that they had driven to
his house, engaged in consensual sex, and driven back toward the Green Hills area
improbable.

The Petitioner told successor counsel that Mr. Francis Kobri could give favorable
testimony on his behalf, and successor counsel interviewed Mr. Kobri. The motion for a
new trial did not allege that trial counsel was deficient in failing to discover Mr. Kobri
because the Petitioner did not tell successor counsel about Mr. Kobri until “way later in
the process.” Successor counsel determined that Mr. Kobri’s statements were not
credible. Mr. Kobri claimed that he had seen the Petitioner with the victim at around
11:00 p.m. on the night of the rape at the house that Mr. Kobri and the Petitioner shared
in another part of town. Evidence at trial had established that the victim was with her
friends and her sister at that time and that she first encountered the Petitioner around 3:00
a.m. when a bar employee placed her into his taxi. Furthermore, the statements were
inconsistent with the Petitioner’s continued claims of mistaken identity.

Mr. Kobri testified at the post-conviction hearing that in November 2009, when
the rape occurred, he was living with the Petitioner and generally worked from 4:00 p.m.
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to 2:00 a.m. He testified that after returning home from work around 3:00 a.m. on the
night of the rape, he saw the Petitioner and the victim together at his home. About fifteen
minutes later, the Petitioner asked to borrow Mr. Kobri’s car, despite the fact that the
Petitioner’s taxi was at the home. Mr. Kobri acknowledged that he had attended the
Petitioner’s 2012 trial and sentencing hearing without volunteering this information. He
also acknowledged that he had initially stated to successor counsel that he saw the
Petitioner with the victim much earlier in the evening. He explained that he initially did
not remember the time because years had passed between the 2009 rape and the 2014
hearing on the motion for a new trial but that, in preparation for the 2016 hearing,
“[w]hen I tried to remember and I tried to see, that’s why I said it can be this time as
well.”

The Petitioner testified that successor counsel made the decision to pursue the
ineffective assistance of counsel claim on direct appeal. The Petitioner asserted that he
told successor counsel that he had wanted to testify at trial and that trial counsel had
prevented him from testifying. He claimed that trial counsel told him that he would be
able to testify at another stage of the proceeding. The Petitioner did not tell successor
counsel that he wanted to testify at the motion hearing but told him that trial counsel’s
testimony was not accurate.

The Petitioner stated that if he had testified at either the trial or the hearing on the
motion for a new trial, he would have maintained that the victim consented to sexual
intercourse. He acknowledged having told Detective Carrigan that he had never seen the
victim or had sex with her but claimed that he did not “pay[] attention” to the victim’s
photograph because he had never raped anyone in his taxi. According to the Petitioner,
the victim did not want to go home when she got into the taxi but wanted to go to his
house, which was a ten- to twelve-minute drive, in order “to pass the time.” He
acknowledged that his testimony at the sentencing hearing was inconsistent with a claim
that the victim consented, and he acknowledged that he did not mention Mr. Kobri’s
anticipated testimony at the sentencing hearing. The Petitioner claimed he told trial
counsel to summon Mr. Kobri as a witness.

The post-conviction court denied relief. The post-conviction court found that
successor counsel was not ineffective for presenting claims hinged on ineffective
assistance of counsel because he was able to adequately prepare for the hearing and to
present evidence to support the Petitioner’s ineffective assistance of counsel claims.

Likewise, the post-conviction court declined to find that successor counsel was
ineffective for not presenting the Petitioner’s testimony at the hearing on the motion for a
new trial. The post-conviction court credited trial counsel’s and successor counsel’s
testimony that the Petitioner chose not to testify at trial and at the hearing on the motion
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for a new trial. The court found that the Petitioner’s proffered testimony that he was
prevented from testifying at trial would have contradicted his sworn statements made
pursuant to Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), on reh'g (Mar. 30, 2000),
and would not have led to a different result if they had been introduced at the hearing on
the motion for a new trial. The post-conviction court found that the Petitioner urged trial
counsel to pursue a defense of mistaken identity and not consent and that the Petitioner’s
claims regarding consent were simply not credible. The post-conviction court found that
successor counsel was not deficient in refusing to present the testimony of Mr. Kobri
because elements of Mr. Kobri’s testimony were vague, inconsistent, and “ma[de] little
sense,” and because the post-conviction court credited trial counsel’s and successor
counsel’s testimony that the Petitioner’s theory of his alleged innocence was constantly
changing.

The post-conviction court found that there was no prejudice in appellate counsel’s
failure to raise sufficiency of the evidence or sentencing on appeal because the issues did
not have merit. The post-conviction court found that trial counsel’s closing argument
was a matter of strategy and accordingly concluded that there was no prejudice arising
from appellate counsel’s failure to cite to case law regarding any errors in closing
argument. The post-conviction court denied relief.

ANALYSIS

On appeal, the Petitioner asserts that: (1) raising the issue of ineffective assistance
of trial counsel prior to post-conviction constituted ineffective assistance of counsel; (2)
successor counsel was ineffective in failing to call him to testify at the motion for a new
trial; (2) trial counsel and successor counsel were ineffective in failing to present an alibi
witness; (4) appellate counsel was deficient in failing to raise the issues of sufficiency of
the evidence, denial of probation at sentencing, and trial counsel’s alleged errors in
closing argument; and (5) the Petitioner is entitled to relief based on cumulative error.

I. Ineffective Assistance of Counsel

The Post-Conviction Procedure Act provides for relief when a petitioner’s
“conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103. The burden of proving allegations of fact by clear and convincing
evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-
conviction court’s findings of fact are binding on the appellate court unless the evidence
preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).
Accordingly, the reviewing court defers to the post-conviction court’s findings regarding
the credibility of witness, the weight and value of witness testimony, and the resolution of
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factual issues. Id. Questions of law and mixed questions of law and fact are reviewed de
novo. Id. Each element of a claim of ineffective assistance of counsel is a mixed
question of fact and law reviewed de novo. Id.

The Petitioner asserts that his conviction is void because he was denied his right to
the effective assistance of counsel. Under the Sixth Amendment to the United States
Constitution and article I, section 9 of the Tennessee Constitution, the accused is
guaranteed the right to effective assistance of counsel. Moore v. State, 485 S.W.3d 411,
418 (Tenn. 2016). To prevail on a claim that he was denied his constitutional right to
effective assistance of counsel, a petitioner must prove both that counsel’s performance
was deficient and that the deficient performance caused prejudice to the defense.
Kendrick, 454 S.W.3d at 457 (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). A claim may be denied for failure to establish either deficiency or prejudice,
and the reviewing court need not address both components if a petitioner has failed to
establish one. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

“Establishing deficient performance requires showing ‘that counsel’s
representation fell below an objective standard of reasonableness,’ which standard is
measured by ‘professional norms’ prevailing at the time of the representation.” Garcia v.
State, 425 S.W.3d 248, 256-57 (Tenn. 2013) (quoting Strickland, 466 U.S. at 688). So
long as counsel’s representation was “‘within the range of competence demanded of
attorneys in criminal cases,’” counsel will not be deemed to have performed deficiently.
Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975)). Deficient performance requires a showing of errors so serious
that “‘counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Id. (quoting Strickland, 466 U.S. at 687).

The reviewing court should not second-guess strategic choices or measure
counsel’s performance by “‘20-20 hindsight.’” Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). In reviewing
counsel’s professional decisions, a “‘fair assessment … 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.’” Goad, 938 S.W.2d at 369 (quoting Strickland, 466 U.S. at 689). Strategic
decisions based on a thorough investigation of law and relevant facts are virtually
unchallengeable. Felts, 354 S.W.3d at 277. However, deference is only given to
strategic decisions which “are informed ones based upon adequate preparation.” Moore,
485 S.W.3d at 419.

In determining prejudice, the reviewing court must decide if there is “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.’” Calvert v. State, 342 S.W.3d 477, 486 (Tenn.
2011) (quoting Strickland, 466 U.S. at 694). A reasonable probability is “‘a probability
sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at
694).

A. Raising Ineffective Assistance of Counsel on Direct Review

The Petitioner asserts that successor counsel performed deficiently when he raised
the ineffective assistance of trial counsel claims at the motion for a new trial. The
Petitioner contends that prematurely raising these claims was “fraught with peril” and
that because successor counsel called trial counsel to testify, successor counsel was not
able to ask leading questions on cross-examination.

We begin by observing that this court has indeed stated that raising a claim of
ineffective assistance of counsel on direct appeal is “fraught with peril.” Thompson v.
State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997) (quoting State v. Jimmy L. Sluder,
No. C.C.A. 1236, 1990 WL 26552, at *7 (Tenn. Crim. App. Mar. 14, 1990)). The danger
of raising a claim of ineffective assistance of counsel on direct review arises “because of
the significant of amount of development and factfinding such an issue entails.”
Kendricks v. State, 13 S.W.3d 401, 404-05 (Tenn. Crim. App. 1999). When the issue is
raised on direct appeal, appellants risk having the issue resolved without the opportunity
to prove their allegations in an evidentiary hearing. Thompson, 958 S.W.2d at 162.

Furthermore, once a claim of ineffective assistance of trial counsel has been
raised, the issue will be considered previously determined in a subsequent post-
conviction action. See T.C.A. § 40-30-106(h) (“A ground for relief is previously
determined if a court of competent jurisdiction has ruled on the merits after a full and fair
hearing.”); John Earl Scales v. State, No. M2003-01753-CCA-R3-PC, 2004 WL
1562542, at *6-7 (Tenn. Crim. App. July 13, 2004); Russell Lane Overby v. State, No.
W2001-01247-CCA-R3-PC, 2002 WL 818250, at *2 (Tenn. Crim. App. Apr. 26, 2002).
A claim of ineffective assistance of counsel is generally a single ground for relief for the
purposes of post-conviction review. Cone v. State, 927 S.W.2d 579, 581-82 (Tenn. Crim.
App. 1995). Accordingly, even when a claim of ineffective assistance of counsel is based
on new factual allegations, the issue will be considered previously determined if a prior
court made a ruling on the claim. Id. “‘The fact that such violation may be proved by
multiple acts or omissions does not change the fact that there remains only one ground
for relief.’” Thompson, 958 S.W.2d at 161 (quoting Frank McCray v. State, No. 01C01-
9108-CR-00255, 1992 WL 217780, at *5 (Tenn. Crim. App. Sept. 11, 1992)). In a post-
conviction hearing, due process guarantees a petitioner only “the opportunity to be heard
at a meaningful time and in a meaningful manner.” Stokes v. State, 146 S.W.3d 56, 61
(Tenn. 2004). “A full and fair hearing has occurred where the petitioner is afforded the
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opportunity to call witnesses and otherwise present evidence, regardless of whether the
petitioner actually introduced any evidence.” T.C.A. § 40-30-106(h).

A petitioner whose claims of ineffective assistance of trial counsel have been
determined on direct review may nevertheless raise claims of ineffective assistance of
counsel which pertain to purported deficiencies on the part of successor or appellate
counsel. Russell Lane Overby, 2002 WL 818250, at *2. “[A]llegations regarding the
ineffectiveness of appellate counsel, when trial and appellate counsel are different, are
not waived under the Post-Conviction Act when those allegations are not presented on
direct appeal.” John Earl Scales v. State, No. M2001-00310-CCA-R3-PC, 2002 WL
1949697, at *2 (Tenn. Crim. App. Aug. 23, 2002); see State v. Michael E. Fischer, No.
M2011-02196-CCA-R3-CD, 2012 WL 5378037, at *5 (Tenn. Crim. App. Nov. 1, 2012);
Ronald Yates v. State, No. W2008-02067-CCA-R3-PC, 2009 WL 4505436, at *3 (Tenn.
Crim. App. Dec. 3, 2009); Jeremy Crosby v. State, No. M2007-00611-CCA-R3-PC, 2008
WL 1850805, at *3 (Tenn. Crim. App. Apr. 25, 2008).

In this case, the Petitioner claims that successor counsel was ineffective in raising
claims regarding ineffective assistance of trial counsel prior to post-conviction review.
This court has previously allowed petitioners to present proof on similar claims. Ronald
Yates v. State, No. W2012-02455-CCA-R3-PC, 2014 WL 295834, at *14 (Tenn. Crim.
App. Jan. 27, 2014) (noting that “an ineffectiveness claim may be raised in a conviction
appeal and that if the claim is raised ineffectively, the issue may be addressed in a
subsequent post-conviction petition.”); Bryan R. Milam v. State, No. M2012-01981-
CCA-R3-PC, 2014 WL 133212, at *23-24 (Tenn. Crim. App. Jan. 15, 2014) (concluding
that appellate counsel was deficient in failing to pursue a claim of ineffective assistance
of trial counsel which had been raised at the motion for a new trial but finding no
prejudice); Laraiel Winton v. State, No. E2011-00762-CCA-R3-PC, 2012 WL 273759, at
*5-6 (Tenn. Crim. App. Jan. 31, 2012) (concluding that failure to pursue certain claims of
deficiency in trial counsel’s performance did not constitute ineffective assistance of
successor counsel); Nelson Troglin v. State, No. E2010-01838-CCA-R3-PC, 2011 WL
4790943, at *16-17 (Tenn. Crim. App. Oct. 11, 2011) (considering whether “appellate
counsel was ineffective in raising the issue of ineffective assistance of counsel” and
concluding that there was no deficiency and no prejudice due to lack of merit in the
underlying issue).

While the Petitioner notes that matters regarding ineffective assistance of trial
counsel are better litigated on post-conviction review, where a petitioner will be allowed
to present evidence at a hearing, he makes no concrete allegations regarding how raising
the issues on direct review deprived him of a meaningful opportunity to present his
claims. The post-conviction court found that successor counsel had ample opportunity to
review the record, investigate allegations of deficient performance, investigate potential
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witnesses, and call witnesses to present evidence in support of the claim of ineffective
assistance of counsel. The Petitioner has not demonstrated that the mere act of raising the
claims prior to post-conviction was, in this case, deficient or prejudicial.

The Petitioner’s claim that he was denied the opportunity to ask trial counsel
leading questions on cross-examination is waived for failure to provide argument or
citations in his brief. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported
by argument, citation to authorities, or appropriate references to the record will be treated
as waived in this court.”). The Petitioner never cites to a single instance of evidence he
was unable to introduce, nor does he argue that he suffered any prejudice from these
unspecified omissions of evidence. The Petitioner also argues in his brief that successor
counsel was somehow at fault for not representing him on appeal. Clearly, however, the
Petitioner could not have received the ineffective assistance of an attorney who was not,
at the time, his attorney.

Accordingly, we conclude that the Petitioner has not demonstrated that the choice
to raise the ineffective assistance of trial counsel claims on direct appeal was deficient or
prejudicial.

B. Failure to Present Petitioner’s Testimony at the Hearing
on the Motion for a New Trial

The Petitioner faults successor counsel for failing to call him to testify at the
hearing on the motion for a new trial, alleging that his testimony would have established
that trial counsel performed deficiently by preventing him from testifying at trial. The
Petitioner also contends that his testimony would have established that trial counsel
should have pursued a theory of consent.

Successor counsel stated that he discussed the possibility of testifying with the
Petitioner and that the Petitioner chose not to do so. The Petitioner never alleged to
successor counsel that he had been denied his right to testify at trial. Instead, the
ineffective assistance of counsel claim centered around trial counsel’s choice to inform
the jury that the Petitioner would testify when there was still some doubt on the subject.
Successor counsel believed the Petitioner’s testimony would not have been relevant to
this claim, since the record established that trial counsel did make a statement that the
Petitioner would testify and that the Petitioner ultimately did not testify. The Petitioner
testified that he was prevented from testifying at trial and that he wanted to pursue a
theory of consent but was prevented from doing so by his attorney.

The post-conviction court made credibility findings and determined that the
Petitioner had made a knowing and voluntary choice not to testify both at the trial and at
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the hearing on the motion for a new trial. The court noted that the Petitioner’s testimony
that he was prevented from testifying at trial would have contradicted his sworn
statements that he was choosing not to testify. Moreover, the post-conviction court
generally credited successor counsel’s testimony, and successor counsel testified that the
Petitioner never told him that he was prevented from testifying at trial. The post-
conviction court also found that the Petitioner had insisted to trial counsel that “it was a
case of mistaken identity” and that the evidence undermined a defense of consent. We
are bound by the post-conviction court’s credibility determinations so long as the
evidence does not preponderate against them. Kendrick, 454 S.W.3d at 457. The post-
conviction court determined that the Petitioner made the choice not to testify at the
motion hearing, and he has accordingly failed to show deficiency. The post-conviction
court also determined that the Petitioner’s testimony at the hearing would not have
established that he was prevented from testifying at trial or that consent would have been
a reasonable defense. Accordingly, he has also failed to establish prejudice.

C. Failure to Investigate

The Petitioner alleges that trial counsel and successor counsel were deficient in
failing to uncover and present the testimony of Mr. Kobri. We note initially that any such
claim against trial counsel is waived for failure to present it to the post-conviction court.
T.C.A. § 40-30-106(g) (“A ground for relief is waived if the petitioner personally or
through an attorney failed to present it for determination in any proceeding before a court
of competent jurisdiction in which the ground could have been presented.”); T.C.A. § 40-
30-110(f); Butler v. State, 789 S.W.2d 898, 902 (Tenn. 1990) (concluding that issue not
presented to the post-conviction court was waived). It is likewise previously determined
because once a Petitioner has brought ineffective assistance of counsel claims against
trial counsel, those claims “cannot be relitigated in a post-conviction proceeding, even
though the petitioner may not have made the same allegations on direct appeal that he
now makes in his post-conviction petition.” Ronald Yates, 2009 WL 4505436, at *3; see
also T.C.A. § 40-30-106(h).

As the claim pertains to successor counsel, the evidence showed that successor
counsel pursued the Petitioner’s claims that Mr. Kobri could present exculpatory
evidence by contacting and interviewing Mr. Kobri. During his interview with Mr.
Kobri, successor counsel discovered that Mr. Kobri’s version of events fundamentally
lacked credibility. Mr. Kobri’s statement was inconsistent with the timeline of events
confirmed by the other evidence at trial because Mr. Kobri claimed to have seen the
victim and the Petitioner together at 11:00 p.m., whereas other evidence indicated that the
victim was with friends until close to 3:00 a.m., when the bar employee hailed the
Petitioner’s taxi, Allied taxicab number 70, to take her home. Mr. Kobri’s memory
miraculously improved with the passing of two years between the motion hearing and the
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post-conviction hearing, when he suddenly recalled that he had seen the victim and the
Petitioner, whose trial he had attended, at 3:00 a.m. rather than 11:00 p.m. The post-
conviction court found that Mr. Kobri’s testimony was vague and inconsistent.
Furthermore, the post-conviction court credited the testimony of trial counsel and
successor counsel that the Petitioner frequently insisted that the charges were the result of
mistaken identity, rendering Mr. Kobri’s testimony that the Petitioner was with the victim
unhelpful. Although the Petitioner describes it as “unfortunate” that the post-conviction
court was the only trier of fact to weigh Mr. Kobri’s credibility, the record amply
supports the post-conviction court’s implicit finding that Mr. Kobri was untruthful.
Successor counsel made a reasonable strategic decision not to present testimony that
lacked credibility, that was inconsistent with the Petitioner’s claim of mistaken identity,
and that did not contradict the State’s timeline of events. The Petitioner has accordingly
failed to show any deficiency.

D. Ineffective Assistance of Counsel on Direct Appeal

The Petitioner contends that appellate counsel was deficient in failing to raise
sufficiency of the evidence and sentencing on appeal and failing to sufficiently brief the
claim that trial counsel’s closing argument constituted ineffective assistance of counsel.
“Appellate counsel are not constitutionally required to raise every conceivable issue on
appeal,” and the choice of which issues to raise rests within appellate counsel’s
discretion. Carpenter, 126 S.W.3d at 887. “Generally, the determination of which issues
to present on appeal is a matter which addresses itself to the professional judgment and
sound discretion of appellate counsel.” Campbell v. State, 904 S.W.2d 594, 597 (Tenn.
1995). A reviewing court gives “considerable deference” to appellate counsel’s judgment
regarding which issues to raise, so long as the choices are within the “range of
competence required of attorneys in criminal cases.” Carpenter, 126 S.W.3d at 887.
When a claim of ineffective assistance of counsel is premised on the failure to raise an
issue, the reviewing court should address the merits of the issue. See id. “Obviously, if
an issue has no merit or is weak, then appellate counsel’s performance will not be
deficient if counsel fails to raise it.” Id. The strength of the omitted issue also has
bearing on whether failure to raise the issue resulted in prejudice. Id. The reviewing
court may consider the following factors in determining whether omitting an issue on
appeal was deficient:

1) Were the omitted issues “significant and obvious”?
2) Was there arguably contrary authority on the omitted issues?
3) Were the omitted issues clearly stronger than those presented?
4) Were the omitted issues objected to at trial?
5) Were the trial court’s rulings subject to deference on appeal?

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 6) Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
7) What was appellate counsel’s level of experience and expertise?
8) Did the petitioner and appellate counsel meet and go over possible
issues?
9) Is there evidence that counsel reviewed all the facts?
10) Were the omitted issues dealt with in other assignments of error?
11) Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?

Id. at 888 (noting that the final factor reaches the ultimate issue of deficiency). Because
the Petitioner failed to call appellate counsel to testify at the post-conviction hearing, he
has failed to present evidence relevant to several of these factors, including appellate
counsel’s reasoning for omitting the issues.

1. Sufficiency of the Evidence

Appellate counsel did not raise sufficiency of the evidence on appeal. The post-
conviction court found that there was no prejudice because the evidence was sufficient to
sustain the verdict. Had the issue been raised, the reviewing court would have examined
the evidence in the light most favorable to the State to determine whether any rational
trier of fact could have found the elements of the crime beyond a reasonable doubt. State
v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013). On post-conviction review, the Petitioner
presented no evidence or argument that the proof at trial failed to establish any particular
element of the crime. Clearly, this omitted issue was not stronger than those actually
presented, nor was it unreasonable to omit it. See Carpenter, 126 S.W.3d at 888.
Considering that the conviction was supported by the overwhelming evidence that the
victim was raped, that DNA evidence linked the Petitioner to the rape, that the victim was
able to identify the Petitioner, and that the Petitioner’s taxi number matched that given by
a witness, appellate counsel’s strategic decision not to raise the issue was not deficient or
prejudicial.

2. Sentencing

Appellate counsel likewise did not raise the denial of alternative sentencing as an
issue on appeal. The trial court denied the Petitioner probation, noting the Petitioner’s
failure to accept responsibility and his lack of remorse. In order to prevail on this issue,
the Petitioner would have to demonstrate a reasonable probability that, but for the failure
to raise the sentencing issue on appeal, the appellate court would have reversed the
sentence of imprisonment. This court reviews the denial of an alternative sentence under
an abuse of discretion standard, accompanied by a presumption of reasonableness, when
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the sentence reflects that the decision was based on the purposes and principles of
sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). While the Petitioner
argues that he was eligible for alternative sentencing and that his lack of criminal history
and the testimony of his friends and family weighed in favor of an alternative sentence,
this argument is merely a quarrel with the trial court’s weighing of the evidence. A trial
court abuses its discretion when it applies an incorrect legal standard, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that causes an injustice to the party complaining. State v. Herron, 461
S.W.3d 890, 904 (Tenn. 2015). The Petitioner has presented no evidence that the trial
court’s sentencing decision was illogical, based on an incorrect legal standard, or based
on a clearly erroneous assessment of proof. Appellate counsel made a reasonable
strategic decision to rely on some issues to the exclusion of others on appeal, and the
Petitioner has demonstrated no deficiency or prejudice.

3. Closing Argument

Finally, the Petitioner faults appellate counsel’s failure to cite legal authority
regarding trial counsel’s concession of elements of the offense in closing argument. On
direct appeal, appellate counsel argued that it was unreasonable for trial counsel to
concede in closing argument that there was a rape and that there was no consent.
Appellate counsel also took issue with trial counsel’s statement that the case “would have
been a loser” absent the DNA evidence. This court concluded that the issue was waived
because there was no argument or citation to authority to support the claim for relief.
Joseph Newton, 2015 WL 1543386, at *8. The post-conviction court found that trial
counsel’s closing argument was a strategic choice and that there was accordingly no
prejudice from failure to brief the issue.

We note that the Petitioner had told trial counsel that he intended to testify that he
was not the perpetrator of the crime and that it was a case of mistaken identity. Trial
counsel was constrained to proceed with this theory. Trial counsel cross-examined
Detective Carrigan and the expert witnesses regarding the collection of the DNA
samples, implying that the Petitioner’s sample may have been mixed up with that of
another taxi driver whose DNA sample was taken at the same time and location.
Proceeding on the theory of the case which the Petitioner had selected, trial counsel
argued in closing that the victim had been raped but that someone else was the
perpetrator.

The facts of the matter are that the State’s evidence was overwhelming and that
trial counsel did not have a rational closing argument to present to the jury. The mistaken
identity defense was contradicted by DNA evidence, by the victim’s identification, and
by the bar employee’s identification of the taxi’s number. The consent defense was not
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credible because it was belied by the Petitioner’s own statement that he had never seen
the victim and because the victim was able to escape and report the crime immediately
after its occurrence. Moreover, trial counsel had to select which theory of the case to
pursue at the beginning of trial, at a time when the Petitioner insisted that he would be
giving testimony supporting mistaken identity. Trial counsel could not credibly change
this strategy for closing argument. The Petitioner has cited to no authority that
“counsel’s concession strategy was unreasonable.” Florida v. Nixon, 543 U.S. 175, 189
(2004). Accordingly, he cannot demonstrate any prejudice in appellate counsel’s lack of
citation to authority in the appellate brief. He is not entitled to relief.

E. Cumulative Error

The Petitioner contends that cumulative acts of deficiency entitle him to relief.
The doctrine of cumulative error recognizes that “there may be multiple errors committed
in trial proceedings, each of which in isolation constitutes mere harmless error, but which
when aggregated, have a cumulative effect on the proceedings so great as to require
reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324
S.W.3d 1, 76 (Tenn. 2010). This court has previously held that a petitioner “who has
failed to show that he received constitutionally deficient representation on any single
issue may not successfully claim that his constitutional right to counsel was violated by
the cumulative effect of counsel’s errors.” Tracy F. Leonard v. State, No. M2006-00654-
CCA-R3-PC, 2007 WL 1946662, at *21 (Tenn. Crim. App. July 5, 2007) (citing cases).
Because the Petitioner has not demonstrated multiple errors, he is not entitled to relief.

CONCLUSION

Because the Petitioner has not demonstrated that he received the ineffective
assistance of counsel, we affirm the judgment of the post-conviction court.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

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