07/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 31, 2021
GABRIEL BUCHANON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 277379 Don W. Poole, Judge
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No. E2019-01989-CCA-R3-PC
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The Petitioner, Gabriel Buchanon, was found guilty by a jury of three counts of
aggravated rape and one count of aggravated burglary, and he received an effective
twenty-three-year sentence. After this court affirmed the Petitioner’s convictions on
direct appeal, he filed a petition for post-conviction relief contending that trial counsel
was ineffective. Following a hearing, the post-conviction court denied the petition, and
the Petitioner appeals. We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.
Donna Miller, Chattanooga, Tennessee, for the appellant, Gabriel Buchanon.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Neal Pinkston, District Attorney General; and AnCharlene Davis,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Trial
The underlying case arose in April 2005, when the Petitioner and his uncle,
Thaddeus Reid, burglarized a Hamilton County residence and raped the fifteen-year-old
victim, whom they encountered inside. State v. Gabriel Eugene Buchanon, No. E2018-
00430-CCA-R3-CD, 2009 WL 482743, at *1 (Tenn. Crim. App. Feb. 26, 2009), perm.
app. denied (Tenn. Aug. 24, 2009). Unaware of the Petitioner’s involvement initially,
law enforcement investigated and prosecuted Mr. Reid first. See id. at *4; see also State
v. Thaddeus Eugene Reid, No. E2007-01056-CCA-R3-CD, 2008 WL 3875436, at *1
(Tenn. Crim. App. Aug. 21, 2008). However, law enforcement investigated and
prosecuted the Petitioner once his familial relationship with Mr. Reid and their shared
residency in the area where the crimes occurred were discovered. See Gabriel Eugene
Buchanon, 2009 WL 482743, at *5. The victim positively identified the Petitioner by his
voice, id. at *3, and, according to the search warrant affidavit in the record, law
enforcement sought a search warrant to obtain a sample of the Petitioner’s blood
approximately one year after the offenses occurred. In addition to citing the victim’s
voice identification of the Petitioner, the search warrant alleged that Mr. Reid and an
accomplice were captured on a gas station’s surveillance video stealing a vehicle fifteen
hours after the offenses occurred and that law enforcement identified the Petitioner as the
accomplice in the video. Law enforcement matched the DNA derived from the
Petitioner’s blood sample to a DNA profile found on a towel used in the offenses. Id.
Mr. Reid pleaded guilty to aggravated burglary at the beginning of his trial, and a jury
convicted him of three counts of aggravated rape. See Thaddeus Eugene Reid, 2008 WL
3875436, at *2. In a separate trial, the Petitioner was convicted by a jury of three counts
of aggravated rape and one count of aggravated burglary. Gabriel Eugene Buchanon,
2009 WL 482743, at *1.
The evidence presented at the Petitioner’s trial showed that the victim’s mother
left her home for work at about 8:00 or 8:15 a.m. on April 20, 2005. Id. While the
victim’s mother was at work, the victim called her to inform her that someone broke into
their home and raped the victim. Id. The victim’s mother arrived at their home seven or
ten minutes later, and she found the victim on the staircase crying, very nervous, and with
a knot on her head and a bruise. Id. The victim’s mother noticed that the back door was
kicked in, that an entire stereo system, jewelry, and the victim’s bedspread were missing,
that the victim’s towel was on the bed, and that a mirror leaned against the wall in the
victim’s bedroom was turned in a different direction than it usually was. Id. The victim
told her that someone broke in their home through their back door and raped her. Id. The
victim’s mother reported the victim’s descriptions of the perpetrators that “one of them
was wearing camouflage” and that “the other was wearing an orange shirt.” Id. at *2. On
cross-examination, the victim’s mother acknowledged that her daughter could not
remember whether the men had hair at that time, but she explained that the victim gave
better descriptions of the men later. Id. The victim’s mother took the victim to the
hospital and then to a rape crisis center, where the victim was examined. Id.
The victim testified that at approximately 11:20 a.m., she was bathing her dog in
the upstairs bathroom when she heard someone knock on a door. Id. She went
downstairs, the knocking stopped, and she heard knocking on her neighbor’s door. Id.
As she went back upstairs, she heard a loud noise originating from downstairs. Id. She
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made her way downstairs and was approached on the stairs by a man she later identified
as Mr. Thaddeus Reid. Id. At the time of the incident, she did not know Mr. Reid or the
Petitioner. Id.
According to the victim, Mr. Reid put his hands on her face, told her that he was
not going to hurt her, laid her on her bed, and “‘told her to be quiet, not to talk so loud.’”
Id. Mr. Reid tried to pull off her shirt and shorts, and when the victim said, “‘I thought
you weren’t going to hurt me,’” he told her to shut up. Id. Mr. Reid tried to take off her
shirt and shorts again and began to get angry. Id. She testified that she gave a false name
and stated that she was twelve or thirteen years old. Id. A couple minutes later, another
man came upstairs and “‘did the same thing to her, which was have sexual contact with
her.’” Id. She testified, “‘They both raped me, beat me with a gun, everything that you
can possibly think of when somebody gets raped.’” She explained that both men
penetrated her anally, vaginally, and orally, and at one point, the men raped her at the
same time. Id.
The victim testified that Mr. Reid had a gun. Id. at *3. She explained that Mr.
Reid asked the other assailant for a gun to hit her with while he was raping her because
she was being loud. Id. She was hit “‘a lot of times’” and the men told her, “‘Shut up,’”
and, “‘I’m not going to hurt you, be quiet, open your legs, do this, do that.’” Id. After
the attack, the men wiped her body down with household solution from the bathroom. Id.
The men placed the victim’s towel on her head, and the second man said, “‘Don’t kill
her, just make her count to a certain number.’” The victim counted, and the men left,
taking her clothing and bedspread with them. Id. The victim testified that the attack
lasted “‘about 30 minutes, 45 minutes’” and took place in her bedroom. Id.
The victim called her mother, and she was taken to the hospital and a rape crisis
center. Id. The victim testified, “‘I had the inside of my vagina messed up and I had
bruises all on my face.’” Id. She testified that she had “‘a knot or something inside her
ear where she can’t hear.’” She had bruises on her knee, but “her face suffered the most
visible damage.” Id. She also stated that her “‘rectum part’ was ‘really messed up,’” and
she said her “‘vagina and behind were bruised in the inside, blood, blood everywhere.’”
Id.
The victim testified that she saw Mr. Reid in the mirror during the rape, and she
later identified him in a photographic lineup. Id. She described Mr. Reid as looking
“‘very different’” than the second man. She described the second man as “‘kind of
heavyset, he had hair.’” Id. She explained, “‘You couldn’t tell his face because he had a
towel on, but you could see his hair and his neck, like he had braids or something.’” Id.
She stated that the Petitioner matched her description of the second man, but “‘he didn’t
have the facial hair anymore.’” She testified that Detective Ralph Kenneth Freeman
played an audio recording of the Petitioner’s voice for her, and she stated that “‘it
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sounded just like’” the second man. Id. She identified the towel that was used to cover
her head. Id.
On cross-examination, the victim admitted that she was unable to identify the
Petitioner in a photographic lineup. Id. When defense counsel questioned her about
inconsistencies between her testimony and statements previously given to law
enforcement, the victim testified, “‘It’s just the day a law enforcement officer tape
recorded me, it was so much going through my head and I told him what I could
remember and what I couldn’t remember.’” Id. She testified that “‘she had flashbacks
all the time,’” and “‘it’s getting clearer.’” Id.
The victim conceded that when she identified the Petitioner’s voice, the officer
played only one voice for her rather than a “‘lineup’” of voices. Id. at *4. She admitted
that she heard the voice recording approximately one year after the rape occurred and that
the officer told her prior to listening to the recording that she would hear the voice of
someone believed to be involved in the crimes. Id. The victim testified, “‘When I heard
the tape, I remember[ed] his voice. I knew exactly how he sounded.’” Id. She also
testified on cross-examination that Mr. Reid’s blood was found on her arm, but she did
not recall seeing any cuts or blood on the Petitioner. Id.
East Ridge Police Department Detective Julius Johnson responded to a call
reporting an aggravated rape and aggravated burglary on April 20, 2005, and he
processed the crime scene. Id. He identified stains on the carpet to the left of the bed, at
the head of the bed, and at the foot of the bed, and he collected portions of the carpet for
analysis. Id. He found a pair of panties on the floor at the foot of the bed, and he
collected a rape kit and a pair of socks from the rape crisis center. Id. He sent the
evidence to the Tennessee Bureau of Investigation (“TBI”) for analysis. Id. Detective
Johnson subsequently received a report from the TBI and obtained a search warrant for a
sample of Mr. Reid’s blood. Id. He obtained the blood and forwarded a sample to the
TBI for testing. Id. He received another report from the TBI that led him to obtain
warrants on Mr. Reid. Id. He was unaware of the Petitioner’s involvement at the time he
began prosecuting Mr. Reid. Id.
Chattanooga Police Department Detective Ralph Kenneth Freeman testified that
he first suspected the Petitioner was involved in the crimes when he realized Mr. Reid
was the Petitioner’s uncle and that they shared an address. Id. Detective Freeman knew
the Petitioner’s mother lived at that address and that the Petitioner’s brother lived in the
area of Chattanooga where the crimes occurred. Id. Detective Freeman testified that he
met the victim in April 2006. Id. He showed the victim a photographic lineup including
the Petitioner, but the victim was unable to identify him in the lineup. Id. According to
Detective Freeman, the victim said the second man had a distinctive voice, so he “‘played
a tape of [the Petitioner’s voice] and she identified him as the person.’” Detective
Freeman obtained a warrant to collect a sample of the Petitioner’s blood, and he sent the
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sample collected from the Petitioner to the TBI. Id. On cross-examination, Detective
Freeman admitted that he only played the Petitioner’s voice to the victim and did not
present it in a lineup of voices. Id. He denied telling the victim before playing the
recording that the voice belonged to a suspect. Id. He testified, “‘When she was asked
about this distinctive voice, then that’s when I wanted her to listen to the tape, to see if
she could identify this distinctive voice, that was going to be it.’” Id.
Sexual Assault Crisis and Resource Center Nurse Ardyce Rudolfo testified that
she examined the victim on April 20, 2005, approximately six hours after the rape
occurred. Id. The victim reported that she had been raped orally, vaginally, and anally
by two men. Id. Nurse Rudolfo testified that the victim told her that “‘the first person
was the one she met on the stairs with camouflage pants and she was able to see his face
some. The second person she identified by his voice and by the fact that she could see
gray pants a couple of times.’” Id. The victim said that she could distinguish the two
men by their voices but that her face was covered, and she was told not to look at them.
Id. According to Nurse Rudolfo, the victim’s injuries included “‘a bruise approximately
one inch by one and a half inches under the left eye, and a bruise under the right side of
the chin that was about [a] half inch to three-quarters of an inch’”; a three and a half by
three inch purple abrasion on the left side of the victim’s face; “‘a three and a half by two
inch bruise under the right side of the chin’”; a two inch purple bruise on her left leg; two
crescent-shaped lacerations on the right side of the victim’s neck; abrasions all around the
victim’s labia minora; a “‘very bright red’” coloration on the opening of the victim’s
vaginal area; eight tears along the posterior fourchette; and tears and abrasions around the
sphincter of the anus. Id. at *5-6. Nurse Rudolfo testified, “‘[T]here was blood in the
rectal folds[,] which is unusual to find.’” Id. at *6. Nurse Rudolfo performed a rape kit
and concluded that the victim was raped anally, vaginally, and orally. Id. at *6.
TBI Agent Charles Hardy examined the forensic evidence in the victim’s case. Id.
The swab of the victim’s mouth, anus, and vagina produced no indication of the presence
of semen, and he did not find any presence of semen from the toilet paper sample or the
victim’s panties. Id. The swab taken from the victim’s breast produced no DNA
evidence. Id. Agent Hardy discovered that the victim’s socks tested positive for human
blood, and an analysis of the DNA showed that Mr. Reid was a major contributor and the
victim was a minor contributor. Id. A swab of blood found on the victim’s arm produced
a DNA profile that matched Mr. Reid. Id.
Agent Hardy also tested a towel used to wrap the victim’s head during the offense.
Id. A blood stain found on the towel tested positive for three DNA profiles. Id. The
major contributor was an unknown male, and minor contributors were Mr. Reid and the
victim. Id. When the towel was first tested, Agent Hardy only had Mr. Reid and the
victim’s DNA profiles to compare, but the next year he received a blood sample from the
Petitioner. Id. He found that the Petitioner’s DNA profile matched the third DNA profile
recovered from the towel. Id. He testified that “‘the probability of an unrelated
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individual having the same DNA profile from either the African-American, Caucasian,
Southeastern Hispanic or Southwest Hispanic populations, exceeds the current world
population.’” Id.
The jury convicted the Petitioner of three counts of aggravated rape and one count
of aggravated burglary. The trial court sentenced the Petitioner to an effective sentence
of twenty-three years of confinement. On appeal, this court affirmed the Petitioner’s
convictions. Id. at *9.
Post-Conviction Proceedings
The Petitioner filed a pro se petition for post-conviction relief contending that he
received ineffective assistance of counsel. As it relates to the issues raised on appeal, the
Petitioner claimed in his petition that trial counsel was ineffective because he failed to
meet and confer with the Petitioner; fully investigate the evidence against him by
interviewing the victim and exploring alternative explanations for the presence of his
DNA on a towel left at the crime scene; request a continuance based on a lack of
communication with the Petitioner and the Petitioner’s expectation that additional
evidence would be offered by the defense at trial; present photographs from the gas
station surveillance video showing that the Petitioner was clean-shaven and did not have
cornrows as stated by the victim; obtain during discovery the victim’s statement and the
Petitioner’s voice exemplar; file pretrial motions to suppress the voice identification and
DNA evidence derived from his blood draw; and consult with a voice expert. The post-
conviction court held a hearing in August 2019, nearly twelve years after the Petitioner’s
trial and ten years after the Petitioner filed his pro se petition. In its written order denying
the Petitioner relief, the post-conviction court attributed the delay to several continuances
either requested by or agreed to by the Petitioner. Trial counsel, Mr. Reid, and the
Petitioner testified at the hearing.
The Petitioner’s trial transcript, Mr. Reid’s trial transcript, the opinion issued by a
panel of this court in the Petitioner’s direct appeal, the search warrant and accompanying
affidavit, trial counsel’s fee application, and an audio recording of the Petitioner’s
hearing testimony were admitted as exhibits to the post-conviction hearing. The search
warrant, issued on April 13, 2006, permitted law enforcement to seize a blood sample
“sufficient for making serological and DNA comparison with the evidence recovered
from the victim.” The affidavit supporting the warrant reflects the following:
I, Detective Ken Freeman, hereby affirm that I am a sworn police officer
and investigator with the City of Chattanooga Police Department, charged
with the duty to assist Detective Julius Johnson, East Ridge Police
Department, to investigate a rape which occurred on April 20, 2005. The
rape is alleged to have occurred at [the victim’s address in] Hamilton
County Tennessee.
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On April 20, 2005 around twelve (12) noon, a female juvenile was raped at
gunpoint by two African American adult males. During the course of the
rape, both adult males left apparent biological (DNA) evidence at [the
victim’s residence.]
The female juvenile has identified one suspect, Thaddeus Eugene Reid, by
a photo lineup as one of the individuals who raped her vaginally and anally.
Thaddeus Eugene Reid was later positively identified as the source of one
DNA specimen that was located at [the victim’s residence.] A second DNA
source was also located at [the victim’s residence] and has been determined
by the Tennessee Bureau of Investigation not to be from the person(s) of
Thaddeus Eugene Reid or the female juvenile. Thaddeus Reid was arrested
on three counts of aggravated rape and aggravated burglary in June 2005.
The female juvenile described several physical attributes of the second
suspect who is unidentified at present. These include: an African American
male, short and stocky and wearing braids or cornrows in his hair.
The female juvenile also heard the second unidentified suspect speak
during the course of the rape. He said things to include “We won’t hurt
you” and “Don’t tie her up, make her count.”
Fifteen hours after the rape, at approximately three (3) am, Thaddeus
Eugene Reid and a second unidentified suspect stole a Green Subaru
automobile from the Exxon gas Station on Shallowford Road, Chattanooga,
Hamilton County, Tennessee. This automobile theft occurred on April 21,
2005. These actions were recorded on close circuit video as well as by still
photographs.
Your affiant has reviewed the still photographs of the automobile theft and
positively identified the second unidentified suspect as Gabriel Eugene
Buchanon.
Your affiant has identified Gabriel Eugene Buchanon by a Hamilton
County booking photo as an African American male standing
approximately 5’ 09” inches and weighing approximately 250 lbs. Gabriel
Eugene Buchanon is also known to wear his hair in braids or cornrows.
Your affiant knows Thaddeus Eugene Reid to be the maternal uncle of
Gabriel Eugene Buchanon.
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On April 12, 2006, your affiant was present with the female juvenile victim
when she heard a voice recording of Gabriel Eugene Buchanon. The female
juvenile victim positively identified the voice she heard as the voice of the
second unidentified suspect who raped her on April 20, 2005.
The record reflects that the Petitioner’s blood was drawn on April 16, 2006, pursuant to
the warrant being executed.
Trial counsel stated that he met with the Petitioner on several occasions to discuss
the case with him while he was incarcerated. Trial counsel’s fee application reflects
meetings with the Petitioner for 1.30 hours on November 20, 2006, 1.70 hours on
February 19, 2007, 0.20 hour on February 20, 2007, and 0.30 hour on March 28, 2007.
However, the Petitioner was released on bond prior to trial, and trial counsel encountered
difficulties meeting with him once that occurred. Trial counsel explained that he and his
staff made documented efforts to meet with the Petitioner starting in June of 2007
through his trial date. According to trial counsel, his office tried to communicate with the
Petitioner and the Petitioner’s family to convince the Petitioner to go to trial counsel’s
office for a meeting. Trial counsel stated, “We made appointments for him, we got
confirmation he was going to be there, and then he wouldn’t show.” Trial counsel
testified that he spoke with the Petitioner’s family to advise them of changes to the
Petitioner’s court dates. Trial counsel explained that he called the Petitioner on June 11,
2007, concerning an upcoming trial date, but the Petitioner did not answer. Trial
counsel’s fee application reflects his attempt to call the Petitioner. Later, he called the
Petitioner’s mother to have her inform the Petitioner of a court date that had been moved
to the next day, and when trial counsel spoke to her again, he advised her that the
Petitioner needed to be there. Trial counsel’s fee application reflects that he had a
telephone conference with the Petitioner for 0.10 hour on June 12, 2007, and he had
conferences with the Petitioner for 0.80 hour on June 25, 2007, for 1.30 hours on July 9,
2007, and 0.80 hour on September 11, 2007. The fee application also shows that trial
counsel held a telephone conference with Levi Buchanon on December 8, 2006, met with
Lewis Buchanon on December 18, 2006, and held telephone conferences with the
Petitioner’s mother on January 15, 2007, and June 11, 2007.
Trial counsel testified that the Petitioner was arrested for the offenses more than a
year after they occurred and after Mr. Reid had already been convicted at trial. Trial
counsel stated that he did not attend Mr. Reid’s trial and that he did not believe the
Petitioner had been charged at the time Mr. Reid was tried. Trial counsel testified that he
reviewed Mr. Reid’s trial testimony, and he recalled that Mr. Reid testified at his own
trial that his accomplice was someone other than the Petitioner, a man named “Black.”
Trial counsel stated that he tried to meet with Mr. Reid while he was incarcerated after
his trial but that Mr. Reid would not approve his visit. On cross-examination, trial
counsel testified that he spoke with Mr. Reid’s attorney prior to trial and met with her and
the district attorney prosecuting the Petitioner’s case. Trial counsel sought to meet with
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the victim prior to trial, but the victim’s mother would not let him talk to her. On cross-
examination, trial counsel testified that he was familiar with the victim’s testimony from
Mr. Reid’s trial and that he knew what her testimony would be at the Petitioner’s trial
based on that familiarity.
Trial counsel discussed the possibility of an alibi defense with the Petitioner, but
trial counsel did not recall that the Petitioner ever provided him information that he could
present as an alibi. Trial counsel testified that he would have filed a notice if the
Petitioner gave him information about an alibi. He believed that the Petitioner or his
family would have told him about an alibi had there been one. He explained, “The level
of disinterest that [the Petitioner] displayed in his case, once he went out on bond, is
beyond anything that I have ever experienced in my legal career. He’d just tell me he
wasn’t there, you need to handle the case.”
Trial counsel stated that he was informed by the Petitioner’s family that they
would bring towels from their residence to try to match them to the towel found at the
crime scene when it was introduced as evidence at trial. Trial counsel explained that the
purpose of doing so was to permit one of the family members to testify that the towel
found at the crime scene was from their residence, which would have suggested to the
jury that Mr. Reid took the towel from their residence and would have explained why the
Petitioner’s DNA was found on it. While the trial was ongoing, the Petitioner’s family
brought in a bag of towels, but none of them matched the towel that was left at the crime
scene. Trial counsel did not recall Mr. Reid stating that he took a towel from the
residence where he lived with the Petitioner’s mother. Trial counsel testified that he did
not subpoena Mr. Reid for the Petitioner’s trial because he was “one of the least credible
witnesses that you could imagine putting up there; he was all over the place.”
Trial counsel recalled that the victim reported that her head was covered by a
towel during the incident. He agreed that the identity of the perpetrators was at issue in
the case, and he testified that the voice identification and DNA found on the towel were
the primary pieces of evidence the State had against the Petitioner.
Trial counsel did not recall discussing at the pretrial conference whether he should
remain on the case, but he recalled informing the trial court that he was ready for trial.
Trial counsel recalled discussions that occurred on the day of trial between himself, the
Petitioner, and the trial court regarding trial counsel’s difficulties in meeting with the
Petitioner, but he did not recall if he or the Petitioner initially advised the court of the
problems. Trial counsel did not move to continue the trial and did not ask the trial court
to take the Petitioner into custody. Trial counsel stated that he was prepared for trial and
explained, “[the Petitioner’s] position was always that he was not there. There’s very
little that he could have told me on the eve of trial . . . that would have assisted me in my
preparation.”
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Trial counsel testified that he did not receive prior to trial a copy of the victim’s
statement given to law enforcement. He explained that the State was not obligated to
provide the statement until the victim testified and that, once the victim testified, he
requested the statement and received it, requested a recess to review it, and then cross-
examined the victim based on it. Trial counsel recalled playing an audio recording of the
statement to highlight the victim’s inconsistent statements for the jury. Trial counsel
stated that he knew the statement existed before trial, that although he did not specifically
recall asking for it, he knew he would have done so, and that he probably did not file a
discovery motion to obtain it. He explained that even if he filed a motion for discovery,
the State was not obligated to disclose it before trial. Trial counsel did not recall that the
victim stated the Petitioner had braids or a similar hairstyle, and he did not recall if he
obtained or introduced photographs of the Petitioner taken around the time the offenses
took place. On cross-examination, trial counsel did not recall any discussion related to
the Petitioner’s hairstyle at the time the incident occurred.
Trial counsel recalled that law enforcement used a voice exemplar for the victim
to make an identification of the Petitioner about a year after the crime occurred. Trial
counsel testified that he was sure he listened to the voice exemplar prior to trial, but he
did not have any specific recollection of it. Trial counsel explained that he prepared a
motion to suppress, which he did not file because he reached an agreement with the State
that the exemplar would not be played at trial. Trial counsel stated, “I desperately wanted
the jury not to hear [the Petitioner’s] voice, because when you listen to him speak, it
makes it exceedingly obvious why she would have been so certain about her
identification of his voice.” He stated that the Petitioner had “a unique way of speaking,
a unique way that his mouth forms the words and the sounds come out.” Trial counsel
continued, “[the Petitioner’s voice] kind of comes from the top of the back of his
mouth[,] . . if you heard it, you’d know who you were listening to and you’d know that
you’d heard that voice before. I can still hear his voice in to my head.” On cross-
examination, trial counsel reiterated the strategic importance of ensuring the Petitioner’s
voice was not played during trial.
Regarding the search warrant to obtain a sample of the Petitioner’s blood, trial
counsel agreed that the warrant was supported by the crime’s circumstances, that the
victim stated that the second suspect made several statements to her during the crime,
including, “We won’t hurt you,” “don’t tie her,” and “make her count,” that surveillance
video captured Mr. Reid and a second suspect stealing a vehicle from a gas station fifteen
hours after the crime occurred, that the law enforcement officer reviewed still
photographs from the video and identified the Petitioner as being involved in the theft,
that Mr. Reid is the Petitioner’s uncle, and that the officer had obtained from the victim a
voice identification of the Petitioner. On redirect examination, trial counsel agreed that
the search warrant also detailed that the Petitioner was known to wear his hair in braids or
cornrows and that the victim testified that the second perpetrator wore his hair in braids.
Trial counsel did not recall whether a photograph of the Petitioner showed that he did not
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have braids or cornrows and instead had a clean-shaven head. Trial counsel did not recall
looking at surveillance video or still photographs from the video, and he did not consult
with a voice expert.
Mr. Reid, the Petitioner’s uncle, testified that he was tried separately from the
Petitioner for the offenses. He agreed that he testified at his trial that the Petitioner was
not involved in the crime and that he provided information to police about who the
perpetrator was. Mr. Reid testified that he knew the other perpetrator as “Black,” that he
did not know Black well, and that they knew each other for at least three months through
their mutual drug use. He testified that he could not identify Black in photographs shown
to him by law enforcement. On cross-examination, he testified that he did not know
where Black lived, did not know anything about him, and just agreed to break into the
victim’s residence with him. Mr. Reid agreed that he testified at his trial that he had
“nothing to do with what happened to” the victim. He did not call the police. He
testified that he knew Black raped the victim but he stopped him by yelling at him. He
stated that he injured himself kicking in the door and was bleeding. Mr. Reid agreed that
photographs of himself and Black were admitted at trial. On cross-examination, Mr. Reid
testified that only he and Black were present at the gas station.
Mr. Reid did not recall what occurred between the crime and the moment he and
Black were captured by the gas station’s surveillance camera. Mr. Reid confirmed that
he and Black broke into the residence to steal property and sell the property to obtain
money for drugs. According to Mr. Reid, he was afraid of Black and looked at him
differently after seeing him rape the victim. However, he acknowledged that he stayed
with Black long enough to sell the property and obtain a portion of the money to buy
drugs. Mr. Reid explained that he was willing to put up with Black’s company to get
high because he was addicted to crack cocaine. In response to the court’s questioning,
Mr. Reid testified that he lived with the Petitioner’s mother right before the incident
happened off and on for probably close to a year. He stated that he stayed with her after
the incident and then moved in with his parents.
Mr. Reid agreed that a towel was taken from the residence where he lived with the
Petitioner’s mother and left at the victim’s home. He denied trying to cover for the
Petitioner. He testified that the Petitioner was clean-shaven at the time of the offenses
and did not have braids or cornrows. Mr. Reid stated that he was not aware of any
attempts made by trial counsel to meet with him and said he would have answered any of
trial counsel’s questions. On cross-examination, Mr. Reid agreed that as family, he and
the Petitioner were “expected to take up for each other.” He testified that he had spoken
to the Petitioner since the Petitioner’s trial while being transported on the bus and while
being held in cells. He denied discussing the case with the Petitioner or the Petitioner’s
mother.
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The Petitioner testified that he was originally tried in the underlying case about ten
years prior to the hearing. He was not present at Mr. Reid’s trial, and he first learned
about the case when law enforcement visited him at his grandfather’s house. The
Petitioner recalled that law enforcement brought him to the police station and drew blood
from him pursuant to a search warrant. On cross-examination, the Petitioner denied
giving consent for law enforcement to draw his blood sample.
The Petitioner testified that trial counsel was appointed to represent him when he
was incarcerated pending trial. According to the Petitioner, trial counsel met with him in
jail two times for approximately three minutes each meeting. The Petitioner testified that
he did not want trial counsel to represent him because trial counsel “talk[ed] crazy to
[him],” which he described as trial counsel telling him, “I know you did something or
something like this or something” and pointing to the Petitioner’s face. On cross-
examination, the Petitioner testified that his negative sentiment toward trial counsel
began while he was incarcerated because trial counsel only visited him a couple of times,
did not give the Petitioner witnesses’ statements, and did not obtain his medical records.
The Petitioner testified that he hired an attorney other than trial counsel to
represent him at a bond hearing, in which his bond was lowered to $350,000. The
Petitioner testified that he made bond the same day, but he did not know how long that
was prior to trial. On cross-examination, the Petitioner testified that he began seeking to
hire another attorney once released on bond because of the difficulty of doing so while
incarcerated. He did not recall whether trial counsel represented him at the bond hearing
or that trial counsel was present during the hearing. The Petitioner testified that he
informed the trial court that he was trying to hire another attorney. He agreed that he was
released on bond for a period of seven months between February 2007 and his September
2007 trial date. Once he was released on bond, the Petitioner recalled that he had been
working somewhere at the time of the offenses and broke his leg working with heavy
equipment. He testified that he had a cast on his leg at the time the crimes occurred and
that he did not realize that until he was out on bond.
The Petitioner testified that he tried to hire another attorney prior to trial and was
in the process of obtaining the money to do so when his trial started. He testified that he
advised the trial court of his dissatisfaction with trial counsel on the morning of trial. He
stated that he was interested in his case but was not interested in trial counsel
representing him and that he discussed his innocence with trial counsel. On redirect
examination and in response to the post-conviction court’s questioning, the Petitioner
testified that he intended to pay the other attorney $18,000 within a week had he been
granted a continuance.
On cross-examination, the Petitioner testified that trial counsel made a couple of
appointments to meet at his office, but the Petitioner told trial counsel that he was trying
to hire another attorney. The Petitioner then testified that trial counsel met with him
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twice in jail for approximately four minutes each meeting and made no appointments to
meet with him once he was released. He testified that trial counsel’s secretary called him
once, but that he told her that he was trying to hire another attorney. The Petitioner
confirmed that he told the trial court why he wanted a continuance, including that trial
counsel did not subpoena his witnesses. According to the Petitioner, he had worked out a
deal with a new attorney and was supposed to ask the trial court for a week’s continuance
of his trial, but he was forced to go to trial that day.
The Petitioner testified that he did not participate in the crimes and that he was not
present at the scene when they occurred. He stated that he did not know when the
incident occurred, but he knew when Mr. Reid was arrested for the crimes. The
Petitioner recalled learning at a later time that he was captured by a gas station’s
surveillance video hours after the incident occurred. The Petitioner acknowledged being
at the gas station with Mr. Reid but stated he was only dropping Mr. Reid off and that he
could not recall if Black was there. The Petitioner testified that he saw a surveillance
video recording from the gas station. He stated that his hair was short and that he had
never had braids in his life. He denied knowing what had occurred at the victim’s
residence when he was at the gas station, and he testified that Mr. Reid never mentioned
anything to him about it. The Petitioner stated that Mr. Reid was on drugs at that time
and that the Petitioner was asked to drop him off at the gas station. On cross-
examination, the Petitioner confirmed that he was dropping Mr. Reid off there, but he
could not recall whether Mr. Reid asked him to do so. Upon further questioning, the
Petitioner clarified that he was dropping Mr. Reid off at the Petitioner’s mother’s
residence, that the gas station is right down the street from there, and that he stopped to
get gas. The Petitioner testified that Mr. Reid exited the vehicle and that the Petitioner
exited the vehicle to pump gas. The Petitioner could not recall whose car he drove at that
time.
The Petitioner testified that he did not know how to determine where he had been
at the time the offense occurred because he did not know when the crime occurred. On
cross-examination, the Petitioner agreed that he presently knew when the crime occurred
and that he could not remember when he broke his leg. He testified that Mr. Reid lived at
the Petitioner’s mother’s residence and that the Petitioner stayed there on and off around
that time.
The Petitioner testified that he asked trial counsel about Mr. Reid and another
witness testifying at his trial, but trial counsel did not call them as witnesses at trial. The
Petitioner stated that he asked trial counsel to obtain medical records regarding his leg
injury, but trial counsel did not obtain those records to his knowledge. According to the
Petitioner, he advised trial counsel about his hairstyle at the time the crimes took place
and discussed with trial counsel the gas station video. The Petitioner testified that trial
counsel had a copy of the video from discovery, that trial counsel showed the video to the
Petitioner, and that trial counsel did not address the video at trial.
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The Petitioner testified that trial counsel did not discuss with him that he had a
distinctive voice or that the victim was only given one voice exemplar when she
identified him. He testified that he realized that only one voice exemplar was used when
one of the State’s trial witnesses testified that he told the victim who the Petitioner was
before playing the audio for her. The Petitioner testified that he informed the court
before trial that trial counsel did not meet with witnesses with whom he asked him to
meet. The Petitioner indicated that he was trying to have his trial continued so he could
investigate what he was doing on the day the crime took place. The Petitioner testified
that he never asked Mr. Reid to lie for him and say that the Petitioner was not at the crime
scene. The Petitioner believed that it would have made a difference had trial counsel met
with the Petitioner’s witnesses and utilized the ideas he had. He stated that he was not
aware trial counsel had asked his family to bring towels from his residence, but he also
recalled that it occurred on the first or second day of trial.
Following the hearing, the post-conviction court entered a written order denying
the Petitioner’s request for relief. Regarding the claim that trial counsel did not meet
with the Petitioner and failed to request a continuance on that basis, the post-conviction
court credited trial counsel’s testimony and records that he had several lengthy meetings
with the Petitioner and that the Petitioner did not cooperate after his release on bond. The
court found that there was sufficient communication between trial counsel and the
Petitioner, and it found that trial counsel was not deficient.
The post-conviction court found that trial counsel was not deficient in
investigating the case, finding that trial counsel attempted to interview the victim but her
mother would not permit it. The court found that trial counsel attempted to match towels
brought by the Petitioner’s family to the one found at the crime scene but that his efforts
were unsuccessful. The court noted that the Petitioner conceded he was unaware of trial
counsel’s efforts to discover an exculpatory reason for the presence of DNA on the towel
left at the victim’s residence, namely, that Mr. Reid had taken the towel from their
residence and used it during the crime. The court found that neither Mr. Reid’s trial
testimony nor his hearing testimony supported an “exculpatory reason for the presence of
the [P]etitioner’s DNA on a towel at the scene.” The court found that the Petitioner’s
testimony that his leg was injured at the time of the offenses lacked credibility. The court
found that trial counsel was not deficient in his efforts to investigate alternative
explanations for the presence of the Petitioner’s DNA on the victim’s towel and that the
Petitioner failed to show prejudice.
The post-conviction court found that trial counsel was not deficient in failing to
obtain discovery because he requested the victim’s statement from the State before trial
and the State did not have an obligation to provide it before trial. The post-conviction
court noted that trial counsel reviewed the victim’s testimony from Mr. Reid’s trial and
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that, when the victim’s statement was admitted into evidence at the Petitioner’s trial, trial
counsel moved for a recess and used it extensively in cross-examination.
The post-conviction court noted that it did not find the Petitioner’s voice to be
“particularly distinctive,” but it found that the Petitioner failed to demonstrate prejudice
regarding trial counsel’s failure to suppress the voice identification because the evidence
showed that there was no ground for suppressing it. The court found that trial counsel
agreed with the State to not move to suppress the victim’s voice identification in
exchange for it not being played at trial and that trial counsel appeared to be familiar with
it because of his testimony that it would strengthen the voice identification at trial. The
court also found that the Petitioner failed to show prejudice regarding his claim that the
trial counsel failed to suppress the DNA evidence collected from his blood sample. The
court found that there was no basis to consult a voice expert, and it found that the
Petitioner failed to show prejudice because there was no expert testimony presented at the
hearing.
ANALYSIS
The Petitioner contends that he received ineffective assistance of counsel because
trial counsel failed to meet and confer with the Petitioner; fully investigate the evidence
against him by interviewing the victim and exploring alternative explanations for the
presence of his DNA on a towel left at the crime scene; request a continuance based on a
lack of communication with the Petitioner and the Petitioner’s expectation that additional
evidence would be offered by the defense at trial; present photographs from the gas
station surveillance video showing that the Petitioner was clean-shaven and did not have
cornrows as stated by the victim; obtain during discovery the victim’s statement and the
Petitioner’s voice exemplar; file pretrial motions to suppress the voice identification and
DNA evidence derived from his blood draw; and consult with a voice identification
expert. The State responds that the post-conviction court properly denied the Petitioner
relief. We agree with the State.
A petitioner may request post-conviction relief by asserting grounds alleging that
his “conviction or sentence is void or voidable because” it abridged his constitutional
rights provided by the Tennessee or the United States constitutions. T.C.A. § 40-30-103.
To obtain post-conviction relief, a petitioner must prove the allegations of fact made in
the petition by clear and convincing evidence. Id. § 40-30-110(f). On appeal, the post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010). “[Q]uestions
concerning the credibility of witnesses, the weight and value to be given their testimony,
and the factual issues raised by the evidence are to be resolved by the trial judge.” Fields
v. State, 40 S.W.3d 450, 456 (Tenn. 2001) (citing Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997)). Additionally, appellate courts may not “substitute their own inferences
for those drawn by the trial court.” Id. (citing Henley, 960 S.W.2d at 579). This court
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reviews “a post-conviction court’s conclusions of law, decisions involving mixed
questions of law and fact, and its application of law to its factual findings de novo
without a presumption of correctness.” Whitehead v. State, 402 S.W.3d 615, 621 (Tenn.
2013) (citations omitted).
A criminal defendant has a right to the assistance of counsel under the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to assistance of
counsel inherently guarantees that counsel’s assistance is “effective.” Strickland v.
Washington, 466 U.S. 668, 685-86 (1984); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). To prove that counsel was ineffective, a petitioner must show that (1)
counsel performed deficiently and (2) such deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687-88.
To establish deficient performance, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. This
standard requires a petitioner to demonstrate that the “services rendered or the advice
given” were “‘below the range of competence demanded of attorneys in criminal cases.’”
Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). Counsel must have made errors so serious that counsel
was not functioning as the “‘counsel’” guaranteed by the Sixth Amendment. Strickland,
466 U.S. at 687. Measuring counsel’s performance requires giving deference to
counsel’s decisions, and courts must apply a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 669.
Accordingly, this court has held that a “petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision made during the course of the
proceedings.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). The
reviewing court “must make every effort to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from
the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland 466 U.S. at 689). The “deference to tactical choices only applies
if the choices are informed ones based upon adequate preparation.” Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Adequate preparation includes counsel’s “duty to make reasonable investigation or
to make a reasonable decision that makes particular investigations unnecessary.” Burns,
6 S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). Counsel’s decision to not
investigate must be assessed by courts “for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” Id.
To demonstrate that a counsel’s deficient performance prejudiced the defense, a
petitioner must prove “‘a reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different.’” Dellinger, 279 S.W.3d
at 294 (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Because a petitioner must establish both deficiency and prejudice to prove ineffective
assistance of counsel, a court need not address both prongs where the petitioner has failed
to establish one of them. See Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing
Strickland, 466 U.S. at 697).
The Petitioner claims that trial counsel was ineffective by failing to meet and
confer with him. The post-conviction court credited trial counsel’s testimony and records
that he had several lengthy meetings and that the Petitioner did not cooperate after his
release on bond. We defer to the post-conviction court’s findings that the Petitioner’s
testimony lacked credibility. See Fields, 40 S.W.3d at 456. The court found that there
was sufficient communication between trial counsel and the Petitioner. Accordingly, the
Petitioner failed to show that trial counsel was deficient with respect to his claim that trial
counsel failed to meet and confer with him.
The Petitioner next claims that trial counsel failed to fully investigate the evidence
against him by interviewing the victim and exploring alternative explanations for the
presence of his DNA on a towel left at the crime scene. The post-conviction court found
that trial counsel was not deficient because he attempted to interview the victim but her
mother would not permit it. The court found that trial counsel attempted to match towels
brought by the Petitioner’s family to the one found at the crime scene. The Petitioner
failed to establish during the hearing that the towel from the victim’s home matched any
of the towels from his home. Rather, the testimony from the victim’s mother at trial
indicated that the towel used in the offenses belonged to her and the victim.
Although the Petitioner maintains on appeal that trial counsel could have called
Mr. Reid to explain the presence of the Petitioner’s DNA on the towel, trial counsel
testified that Mr. Reid refused to meet with him and that trial counsel decided not to call
Mr. Reid as a witness because he lacked credibility. The court found that neither Mr.
Reid’s trial testimony nor his hearing testimony supported an “exculpatory reason for the
presence of the [P]etitioner’s DNA on a towel at the scene.” Accordingly, the Petitioner
has failed to establish that trial counsel was deficient or that any deficiency resulted in
prejudice.
The Petitioner also argues that trial counsel failed to discover evidence of medical
records suggesting that the Petitioner’s leg was in a cast at the time of the offense;
however, the court found that the Petitioner’s testimony regarding this injury at the time
of the offense lacked credibility. Moreover, the Petitioner failed to present the medical
records he claimed supported his testimony, and, in the absence of those records, we
cannot conclude the Petitioner suffered prejudice. The Petitioner has failed to
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demonstrate that trial counsel’s performance was deficient or that any deficient
performance prejudiced his defense.
The Petitioner claims that trial counsel was ineffective by failing to request a
continuance supported by lack of communication and the Petitioner’s belief that trial
counsel was going to offer additional evidence in his defense. Trial counsel testified that
he was prepared for trial and that there was little the Petitioner could have told him
immediately before trial that would have assisted him. As discussed above, the trial court
found that Mr. Reid’s testimony would not have been exculpatory and that the
Petitioner’s testimony regarding his leg injury lacked credibility. The Petitioner has not
demonstrated that trial counsel was deficient or that any deficiency resulted in prejudice.
The Petitioner claims that trial counsel was ineffective by failing to present at trial
photographs from video captured by the gas station surveillance system. He claims the
photographs would have shown his general appearance within fifteen hours of the crimes
and that he did not have braided hair. Trial counsel testified at the hearing that he did not
recall whether a photograph showed the Petitioner had a shaved head rather than
cornrows or braids. We note that the Petitioner did not present the photographs as
exhibits during the post-conviction hearing that he claims support his contention that his
hair at the time of the offense did not match the victim’s description of the perpetrator.
Furthermore, trial counsel questioned the victim extensively on cross-examination
regarding her description of the perpetrators. Even assuming the photographs showed the
Petitioner did not have braided hair, the evidence presented at trial, namely, the victim’s
voice identification of the Petitioner, the Petitioner’s DNA found on the victim’s towel,
and the Petitioner’s relation to Mr. Reid and their association together at the gas station a
short time after the crimes occurred overwhelmingly supported the Petitioner’s guilt.
Because he has not shown that there was a reasonable probability the admission of the
photographs as evidence would have changed the outcome of his trial, the Petitioner has
not demonstrated prejudice.
The Petitioner argues that trial counsel failed to obtain the victim’s statement and
the Petitioner’s voice exemplar during discovery. Trial counsel reviewed the victim’s
testimony from Mr. Reid’s trial and used the statement once it was admitted into
evidence at the Petitioner’s trial to cross-examine the victim. The Petitioner did not
demonstrate what information trial counsel could have obtained or how obtaining it prior
to trial would have affected the outcome of the trial. The Petitioner did not show that
trial counsel was deficient for failing to obtain it or that any deficiency prejudiced his
defense.
Regarding the voice exemplar used in the victim’s identification, the Petitioner did
not demonstrate that trial counsel failed to discover it. Trial counsel testified that he
recalled that law enforcement used a voice exemplar to obtain an identification of the
Petitioner and that he was sure he listened to it. Trial counsel testified in detail regarding
18
his opinion of the distinctiveness of the Petitioner’s voice and his strategy to ensure the
jury did not hear it. The evidence establishes that trial counsel reviewed the voice
exemplar prior to trial. The Petitioner has failed to establish deficiency or prejudice.
The Petitioner contends that trial counsel failed to file pretrial motions to suppress
the voice identification and the DNA evidence derived from his blood draw. Trial
counsel testified at the hearing that he did not file a motion to suppress the voice
identification because he formed an agreement with the State not to move to suppress it
in exchange for the State’s agreement that the voice exemplar would not be played at
trial. Because the identification was not offered as evidence at trial, the Petitioner has not
shown the failure to suppress it prejudiced his defense. Regarding the suppression of the
DNA evidence, the Petitioner has not cited to any authority suggesting the motion would
have succeeded, and he did not introduce the voice exemplar used in the identification as
evidence to the post-conviction hearing. Therefore, the Petitioner has not shown that his
defense was prejudiced.
Finally, the Petitioner contends that trial counsel failed to consult with a voice
expert. The Petitioner did not offer the testimony of an expert witness at the hearing.
“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner
at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 758 (Tenn. 1990). Absent
any testimony from a voice expert at the hearing, the potential prejudice resulting from
the lack of that testimony at trial cannot be ascertained under the evidence presented by
the Petitioner in this case. See id. Thus, the Petitioner has failed to establish deficiency
or prejudice.
CONCLUSION
Based upon the foregoing reasons, we affirm the judgment of the post-conviction
court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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