The opinion
03/10/2026
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 21, 2026
KENNETH GEORGE ARNOLD v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 313931 Barry A. Steelman, Judge
___________________________________
No. E2025-00368-CCA-R3-PC
___________________________________
The Petitioner, Kenneth George Arnold, appeals from the Hamilton County Criminal
Court’s denial of his petition for post-conviction relief from his convictions for rape,
aggravated sexual battery, and sexual battery by an authority figure, for which he is serving
an effective thirteen-year sentence. On appeal, he contends that the post-conviction court
erred in denying relief on his claims that he received the ineffective assistance of pretrial,
trial, and appellate counsel and that relief was required due to the cumulative effect of
multiple instances of deficient performance by his attorneys in the conviction proceedings.
We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN W.
CAMPBELL, SR., and STEVEN W. SWORD, JJ., joined.
Brandy Lachelle Spurgin-Floyd, Chattanooga, Tennessee, for the appellant, Kenneth
George Arnold.
Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Coty Wamp, District Attorney General; and P. Andrew Coyle, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Petitioner’s convictions relate to sexual abuse of his stepdaughter. He gave
inculpatory pretrial statements to the police, which were received as evidence at the trial.
In his statements, he admitted that he allowed the victim to “do things and go places” and
that he bought an item for her at the mall in exchange for her manually and orally
stimulating him and his performing cunnilingus on her. A defense expert, Dr. Robert J.
Brown, Jr., testified at the trial that the Petitioner was competent to stand trial and had a
history of childhood sexual abuse and child abuse resulting in anoxic brain injury at the
hands of his stepbrother. Dr. Brown opined that the Petitioner met two of the four prongs
of the clinical criteria for diminished capacity but acknowledged that the Petitioner
understood the wrongfulness of his conduct by the time of his confession to sexually
abusing the victim. Dr. Brown stated that the defendant had the capacity to act intentionally
or knowingly but did not have the capacity to intentionally or knowingly harm the victim.
The Petitioner’s sister also testified about the Petitioner’s history of childhood physical and
sexual abuse and his lifelong history of psychiatric care. The jury found the Petitioner
guilty of rape, aggravated sexual battery, and sexual battery by an authority figure, and it
acquitted him of a second count of rape. State v. Kennth George Arnold, No. E2020-00383-
CCA-R3-CD, 2022 WL 390588, at *1-4 (Tenn. Crim. App. Feb. 9, 2022), perm. app.
denied (Tenn. June 8, 2022).
The Petitioner filed a pro se petition for the writ of habeas corpus and requested that
counsel be appointed. The lower court reviewed the petition and determined that its claims
were in the nature of those contemplated by the Post-Conviction Procedures Act and treated
the petition as one for post-conviction relief. The court appointed counsel, who filed an
amended petition for post-conviction relief. After counsel was permitted to withdraw, new
counsel was appointed and filed the second and third amended petitions. As relevant to
this appeal, the amended petitions alleged that the Petitioner had been represented in the
conviction proceedings by four attorneys: pretrial counsel, trial counsel, sentencing
counsel, and appellate counsel. The Petitioner alleged that pretrial counsel, trial counsel,
and appellate counsel provided ineffective assistance in various respects and that the
cumulative effect of multiple deficiencies of counsels’ performance deprived him of a fair
trial.
At the post-conviction hearing, pretrial counsel testified that he represented the
Petitioner after receiving a referral from an attorney who attended church with the
Petitioner. Counsel said he began the representation in late April or early May, 2014.
Counsel said the Petitioner did not have criminal charges at the time.
Pretrial counsel testified that the Petitioner wanted to give a statement to law
enforcement because the Petitioner had already confessed to his wife, a church counselor,
and a church men’s group. Counsel said the Petitioner was being pressured by these
individuals, including a police officer in the men’s group, to make a statement to the police.
Counsel said the Petitioner and the victim’s mother were trying to “save their marriage”
and that the Petitioner was receiving “some advice that [talking to the police was] the right
thing to do” for the marriage.
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Pretrial counsel testified that the Petitioner contacted him in late April or early May
2014, but did not retain him. Counsel said they spoke “a handful of times,” followed by a
gap of four to five months before the Petitioner contacted him again and paid a retainer.
Counsel said, “[T]hat’s when all of the information, the text messages in November,
December, started occurring.”
Pretrial counsel identified text messages he exchanged with the Petitioner. Counsel
read a December 6, 2014 message he received from the Petitioner:
[U]pon much discussion, I’ve decided that I cannot continue to wait for the
system. Things continuing changing for us like our church not allowing my
wife and I [sic] attending any functions to my wife’s ex-husband filing for
custody of her kids, which means he’s now trying to get . . . [the victim’s]
twin brother. I cannot continue watching things fall apart around my family
and must step up and do the right thing. I would like to have legal counsel
when a confession is made and need your advice on how we can go about
doing this.
Counsel said the Petitioner sent him text messages on December 9, 2014, in which the
Petitioner relayed that Chattanooga Police Officer Kenneth Hogans had told the Petitioner
that the Petitioner had received “some very bad advice” from counsel and that counsel was
not going to be able to prevent the police from arresting the Petitioner. Counsel read
December 10, 2014 text messages, in which the Petitioner said he thought he “should just
go ahead and deal with this” by talking to the police. The Petitioner advised counsel that
the Petitioner was going to talk to a Hamilton County detective “at 8:00” and requested
that counsel be present if possible. The Petitioner stated, “I’m exhausted and just want this
to be over with.” Counsel read his response, in which he said, “I still don’t advise you to
do this, but if you have decided to anyway, call me first so we can talk, please.”
Pretrial counsel testified that he spoke to the Petitioner several times about the
Petitioner’s desire to speak to the police. Counsel said he advised the Petitioner “to say
nothing.” Counsel said he told the Petitioner that once the Petitioner confessed, guilt or
innocence would no longer be an issue. Counsel said he advised the Petitioner that the
possible charges would be “serious” and would “carry prison terms.” Counsel said that he
told the Petitioner that Officer Hogans was “bluffing” about the existence of arrest warrants
for the Petitioner and that the Petitioner should ignore the pressure he was receiving from
Officer Hogans. Counsel said he also told the Petitioner that he could wait until after any
warrants were served to decide to talk to the police. Counsel said that he told the Petitioner
to “go down to the Sheriff’s Department and present yourself to be turned in” if he wanted
to determine if any arrest warrants existed. Counsel said that he had investigated whether
any warrants existed, but he did not recall whether he checked an online database or called
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the Sheriff’s Department. Counsel acknowledged that he never contacted Officer Hogans
to tell him that the Petitioner was represented and that Officer Hogans should stop
contacting the Petitioner.
Video recordings of the Petitioner’s January 20 and February 10, 2015 police
interviews were received as exhibits. A portion of the Petitioner’s January 20 police
interview was played. In the recording, the Petitioner was read his Miranda rights in the
presence of pretrial counsel. The Petitioner looked at counsel after the Miranda
admonition, and pretrial counsel nodded his head. Counsel agreed that, in the recordings,
he did not tell the Petitioner not to make a statement. Counsel said the Petitioner was not
indicted for at least several weeks, and possibly as long as several months, after making
the statement to police.
Pretrial counsel testified that he had many in-person and telephone conversations
with the Petitioner about the Petitioner’s desire to give a statement to police and that the
exhibit containing text messages did not represent their entire discussions. Counsel said
the Petitioner had become convinced that he needed to give an inculpatory statement by
December 2014, and counsel continued to try to dissuade the Petitioner from this course of
action. Counsel said that, once the Petitioner made the decision to talk to the police, “what
it looked like the game plan was was [sic] cooperation, be honest, be truthful.” Counsel
said he “wanted to lay the foundation to paint [the Petitioner] out as the individual who did
the right thing” in order to “maybe garner better settlement terms.” Counsel said that the
Petitioner was also concerned about avoiding an arrest at his workplace and that counsel
had been able to secure assurances that this would not happen. Counsel said that, by the
time of the Petitioner’s January 20, 2015 interview, counsel believed that the Petitioner
could not be persuaded, despite counsel’s efforts, to refrain from making a police
statement.
Pretrial counsel testified that, after the Petitioner’s first police interview, Hamilton
County Sheriff’s Detective Lee contacted counsel because he wanted to do a follow-up
interview. Counsel did not think he advised the Petitioner not to participate in a second
interview. Counsel said he was present for both interviews.
Pretrial counsel testified that, “while we were waiting for the indictment to be
issued,” Detective Lee notified him that the victim’s family did not want to be contacted
by the Petitioner. Counsel learned at this point that the Petitioner had sent letters to the
victim and her father. Counsel identified a letter written by the Petitioner to a person who
other evidence showed was the victim’s father. Counsel said the Petitioner told him that
he wrote the letters on the recommendation of his counselor. When asked if he subpoenaed
telephone records with text messages between the victim and the Petitioner, he did not
“recall . . . even thinking about that as an issue.” Counsel said that the Petitioner did not
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tell counsel that the Petitioner intended to write to the victim and the victim’s father and
that counsel never anticipated that the Petitioner would do so.
Pretrial counsel testified that, at an unidentified time, the Petitioner wanted a
Georgia law firm to be involved in the case, but counsel was unwilling in “having my
strings pulled or [being] told what to do by another firm.” Counsel said he filed a motion
to withdraw. He said that the Petitioner ultimately retained trial counsel, instead of the
Georgia firm, and that the trial court permitted pretrial counsel to withdraw and trial
counsel to be substituted as counsel of record.
Trial counsel testified that, after the case had been pending for about one year,
Petitioner contacted him about representation at the Petitioner’s trial, which had been
scheduled. Counsel did not recall the details of the Petitioner’s hiring him. Counsel said
that he entered an appearance and moved the trial court for a continuance of the trial, which
the court granted.
Trial counsel testified that he “never had a client that was as difficult to talk with”
as the Petitioner. Counsel said he had difficulty obtaining information from the Petitioner
and getting the Petitioner to understand information that counsel imparted. Counsel said
he engaged an expert, Dr. Robert Brown, because counsel believed the Petitioner “was
acting under some disability and I wanted that to be checked out.” Counsel said Dr.
Brown’s opinion about the Petitioner’s sanity at the time of the offense “was not helpful”
to the defense. Likewise, counsel said Dr. Brown’s opinion about the existence of
diminished capacity “was not helpful . . . either.” Counsel thought the Petitioner knew that
Dr. Brown’s findings were not helpful to the defense. Counsel stated that, after Dr. Brown
completed his evaluation of the Petitioner, Dr. Brown continued to meet with counsel and
the Petitioner in order to assist counsel in communicating with the Petitioner more
effectively.
Trial counsel identified Dr. Brown’s report, and it was received as an exhibit. In it,
Dr. Brown diagnosed the Petitioner with: Post-Traumatic Stress Disorder, Severe, with
Dissociative Symptoms; Major Depressive Disorder, Recurrent, Moderate to Severe
(without Psychosis); Generalized Anxiety Disorder, Moderate to Severe; and
Neurocognitive Disorder due to Frontotemporal Problems, Moderate. Dr. Brown also
opined that “insufficient data” existed to support an insanity defense. Dr. Brown further
opined, “There is no question but that the [Petitioner], because of the degree of his
neuropathology had diminished mental capacities at the time of the reported crime, as a
matter of clinical perspective (not per legal definition).”
Trial counsel acknowledged a report from Johnson Mental Health Center, which
was received as an exhibit. In the report, Senior Psychological Examiner Todd Wiggins
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and June Young, Psy.D., stated that the Petitioner was competent to stand trial but that his
competence might deteriorate over time without treatment. The report stated that the
Petitioner had not been evaluated for diminished capacity because the examiners had not
been directed to do so by court order but that “a basis [existed] for an inpatient forensic
evaluation with the need of inpatient forensic-related treatment and assessment with
hospitalization pursuant to T.C.A. § 33-7-301(a) at Moccasin Bend Mental Health
Institute.” Counsel testified that none of the reports generated after psychological testing
and evaluation of the Petitioner were helpful to the defense.
Trial counsel testified that he urged the Petitioner to accept a plea offer because
counsel did not think the trial could be “won.” Counsel thought that the plea offer was for
ten years at the time counsel began representation and that he was “pretty sure” he was able
to negotiate the offer “down to 6 years with a possibility of 5 years.” Counsel said he had
made more effort with the Petitioner than with any of his other clients to convince the
Petitioner to accept a plea offer because he “knew what was going to happen if we tried
the case.” Counsel said the Petitioner rejected the plea offers, despite counsel’s having
used phrases like “almost certainly convicted” and “decades in jail.” Counsel said he
continued to talk to the assistant district attorneys assigned to the case in hopes that they
would extend an offer with a lower number of years that the Petitioner might accept.
Counsel said none of the prosecutors were willing to consider a plea offer involving
probation.
Trial counsel testified that he did not interview the State’s “potential witnesses”
because he did not expect the State to call the witnesses. Counsel said he expected the
State’s evidence to consist of the victim’s testimony and the evidence of the Petitioner’s
two interviews and the Petitioner’s apology letters. Counsel said he saw no way to deny
the Petitioner’s culpability without losing credibility with the jury. He said his defense
strategy was to call Dr. Brown to testify about “some information that the jury could rely
on that would be helpful to the defense.” When asked why he decided to call Dr. Brown
as a witness even though Dr. Brown’s findings were not helpful to the defense, counsel
said, “Clearly . . . that’s all I had.” Counsel said Dr. Brown testified that the Petitioner
“had dead tissue in his brain.” Counsel acknowledged that Dr. Brown had testified that the
Petitioner knew he had sexually assaulted the victim and “that he did [it] intentionally and
that it was wrongful.” Counsel said he focused on evidence of the Petitioner’s “mental
deficiencies” because counsel “wanted sympathy [for the Petitioner if he] could get it.”
Trial counsel testified that he no longer had his case file, having given it to the
attorney who represented the Petitioner after the trial. Counsel did not recall having
obtained screenshots of text messages between Officer Hogans and the Petitioner but said
they might have been in his file.
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Trial counsel testified that he would never have advised the Petitioner to testify at
the trial and would have tried to dissuade the Petitioner from testifying if the Petitioner
expressed a desire to do so. Counsel agreed that the Petitioner did not testify and that the
State therefore was unable to impeach the Petitioner with his suppression hearing
testimony.
Trial counsel testified that he did not request a mistrial when Dr. Brown testified
about the Petitioner’s “confession” to Dr. Brown during the mental evaluation. Counsel
said he filed a motion to suppress the Petitioner’s pretrial statements but decided not to
pursue the motion after realizing he “might forego a postconviction” claim against pretrial
counsel. When shown two documents, he acknowledged that they were motions to
suppress he had filed and which alleged ineffective assistance of pretrial counsel. The
motions were received as exhibits. The motions sought suppression of the Defendant’s
pretrial statements and the Defendant’s letters to the victim and “members of the . . .
victim’s family.” Counsel said that he watched the recordings of the Defendant’s
interviews several times and that he thought he ultimately struck the motions because he
thought the defense would not prevail at a hearing.
When shown an exhibit of the January 2, 2019 motion to suppress hearing, trial
counsel testified that he called the Petitioner as a witness after instructing him “not to go
beyond [counsel’s] specific questions.” Counsel thought he obtained a ruling “that [the
Petitioner] would only be testifying as to certain things” but said the transcript “will speak
for itself” regarding whether the trial court ruled that counsel had “opened the door” to
additional questioning of the Petitioner.
Trial counsel agreed that, in cross-examining the victim at the trial, he had been
prohibited from questioning the victim about matters encompassed by Tennessee Rule of
Evidence 412. He said that, in questioning the victim, “I wasn’t aware of anything like
that and I guess I was just trying to see if I could find something.” Counsel did not recall
if the State’s objection to his questioning had been based upon his failure to file the required
notice pursuant to Rule 412.
Trial counsel could not recall whether he had argued a motion for a bill of
particulars.1 The indictment was received as an exhibit. Counsel agreed that the indictment
alleged criminal conduct occurring between January 1, 2009, and December 31, 2011.
Counsel agreed that the State elected this same time period for Count 1, which required as
an element of the offense that the victim be less than age thirteen. Counsel said, “[I]t was
1
The trial record, which is filed with the clerk of this court in Case Number E2020-0383-R3-CD,
reflects that trial counsel filed a motion for a bill of particulars on August 7, 2017, that the State provided
an election of offenses, and that the trial court instructed the jury in accord with the election. See Tenn. R.
Evid. 201(b)(c) (judicial notice).
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really hard to nail down when the offenses occurred and to calculate [the victim’s] age, but
we did it based on the house they were living in and her age at the time they were living in
that house.” He said he talked to the Defendant but “didn’t get a lot of . . . information
from” him. Counsel said he also spoke to the Defendant’s sister. Counsel thought he saw
the deed to the house and said he “was satisfied that we knew when they moved.” The
warranty deed for the Petitioner’s Harrison, Tennessee home was received as an exhibit
and reflected that the Petitioner and the victim’s mother conveyed the home to another
party on August 19, 2011.
Trial counsel did not recall whether he cross-examined the victim at the trial about
inconsistencies between her May 13 and December 3, 2014 pretrial statements and her trial
testimony as to her age when the Defendant began sexually abusing her. Counsel said he
did not recall whether the victim’s pretrial statements and trial testimony were consistent
about her age when the sexual abuse began. Counsel said he would have cross-examined
the victim about any inconsistency “if [he] recognized it.” The victim’s pretrial statements,
the trial transcript, the jury instructions, the verdict forms, and the judgment forms were
received as exhibits. The indictment and election of offenses reflected the following:
Charged Offense Indictment Date Election
Count 1
Aggravated Sexual Battery, 01/01/09 to 12/31/11 01/01/09 to 12/31/11
victim under age 13 “where the Defendant touched
the victim on her buttocks
underneath the clothing. This
occurred at the Defendant’s
home in [description of
neighborhood] in Harrison,
Tennessee.”
Count 2
Sexual Battery by an Authority 10/01/11 to 11/30/12 10/1/11 to 11/30/12
Figure “Defendant, the victim’s step-
father, made the victim
masturbate him with her hand
inside of the victim’s bedroom.
This occurred in the marital
home of [the victim’s mother]
and the Defendant on [road] in
Hixson, TN.”
Count 3
Rape, digital penetration 10/01/11 to 12/30/12 10/1/11 to 11/30/12
Defendant digitally penetrated
the victim “during the same
incident where the Defendant
performed oral sex on the victim
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as alleged in Count 4. This
occurred in the marital home of
[the victim’s mother] and the
Defendant on [road] in Hixson,
TN.”
Count 4
Rape, oral penetration 10/01/11 to 11/30/12 10/01/11 to 11/30/12
“Defendant performed oral sex
on the victim in the victim’s
bedroom during the same
incident as [digital penetration]
alleged in Count 3. This
occurred in the marital home of
[the victim’s mother] and the
Defendant on [road] in Hixson,
TN.”
When asked if the victim testified that Count 1 occurred in the “Harrison house”
before her mother married the Defendant, trial counsel said, “That sounds right.” The jury
instructions were received as an exhibit, and they reflected that the jury was instructed as
follows: “With respect to Count 1, the state has elected to submit for your consideration
the alleged
act of the defendant in touching the victim on her buttocks underneath clothing at the home
in . . . Harrison, Tennessee, sometime between January 1, 2009, and December 31, 2011.”
Trial counsel identified a letter from the Petitioner’s pastor to a prosecutor in the
District Attorney General’s office regarding the Petitioner. The letter was received as an
exhibit and reflected the pastor’s account of the Petitioner’s having disclosed sexual abuse
of an unidentified minor to the pastor. The letter stated that the pastor had been advised
that the Petitioner had later self-reported the matter to law enforcement, with the assistance
of an attorney.
Trial counsel acknowledged that he had “used the insanity language, appreciate the
wrongfulness of [one’s] actions” multiple times during the trial and that the State objected.
Counsel agreed that the court commented, “I never would have imagined that the defense
would call an expert that couldn’t support their defense.”
The transcript of the suppression hearing was received as an exhibit and reflected
the following relative to the testimony of the Petitioner: Trial counsel acknowledged the
difficult position facing the defense in raising an ineffective assistance of pretrial counsel
claim in a motion to suppress, rather than deferring the issue for a post-conviction petition,
should the Petitioner be convicted. Trial counsel instructed the Petitioner that the hearing’s
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scope was limited and that the Petitioner should not “go off on long discussions.” The
Petitioner testified that he was counseled by his pastor, who advised him that he should
confess because God would never forgive him if he did not. The Petitioner said he did not
want to go to Hell. He said his pastor referred him to pretrial counsel, who was a friend of
his pastor. The Petitioner said pretrial counsel never told him that he would likely be
arrested and jailed for forty years if he confessed. The Petitioner later said he did not know
if pretrial counsel said this but that nothing counsel said “stuck out to” him. The Petitioner
stated that pretrial counsel said, “If [giving a statement to the police is] what you want, you
feel like you need to do, I can go with you.” The prosecutor asked the Petitioner if he
disclosed during his counseling sessions with his pastor that the Petitioner had sexually
abused the victim, and the defense objected. The trial court overruled the objection on the
basis that any disclosure by Petitioner of sexual abuse of the victim was relevant to whether
the Petitioner had been prejudiced by pretrial counsel’s alleged deficient performance. The
Petitioner acknowledged that he had asked his pastor for help with things that were
troubling him, which included sexual abuse of the victim. Trial counsel again objected,
and the court overruled the objection, noting that the court was not ruling, at this juncture,
“as to whether this would be admissible at trial.” The Petitioner thought he remembered
his pastor’s saying that the pastor “had to report [child sex crimes] to child services.” The
Petitioner said that, in addition, a member of his church men’s group, whose name the
Petitioner did not recall, sent him text messages stating that the police were searching for
him and “were going to pick [him] up.” The Petitioner professed not to know how this
person “found out about the child” because the Petitioner had not said anything about it to
the group. The Petitioner said he had given the inculpatory statements because he was
doing what his pastor told him to do. He said he returned for the second interview at his
pastor’s instruction. Trial counsel objected when the prosecutor asked the Petitioner about
specifics of what the Petitioner had said in his second interview, and the court overruled
the objection, noting that the motion was based upon the allegation that pretrial counsel
had provided ineffective assistance related to the Petitioner’s giving pretrial statements to
the police. The Petitioner said he wrote the letters to the victim and her family because a
counselor suggested that he send apology letters to them. When asked if pretrial counsel
encouraged him to write the letters, the Petitioner said, “I don’t think he had any problem
that I wrote them.” The Petitioner thought he had mentioned the letters to pretrial counsel
before the Petitioner sent them. The Petitioner said pretrial counsel had not told him that
the letters could be a basis for indictment, could be used against him at a trial, and could
cause him to go to prison. The Petitioner said he would not have given the statements if
he had understood that he would be indicted. The Petitioner said he did not understand
that he was “in trouble” relative to his decisions to make the statements and to write the
letters and said he “[j]ust was doing what I was told.”
The transcript of the suppression hearing also reflects that trial counsel called Dr.
Brown, who testified about the Petitioner’s cognitive issues and memory and their impact
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on the Petitioner’s ability to assist trial counsel in preparing for a trial. Dr. Brown also
testified about the Petitioner’s post-traumatic stress disorder due to the Petitioner’s being
abused beginning at age three. Dr. Brown stated that, in his evaluation over the course of
multiple meetings with the Petitioner, the Petitioner had never exhibited an understanding
of his Miranda rights. Dr. Brown opined that the Petitioner had not understood the advice
he received from pretrial counsel relative to making a statement to the police. Dr. Brown
described the Petitioner as “so intensely wanting to appease authority figures” and as
having made the pretrial statements based upon a motivation “to seek a solution to his
problem of guilt.” Dr. Brown opined that the Petitioner would not be “able to assimilate”
legal advice “and appreciate . . . and understand it.” Dr. Brown said the Petitioner “doesn’t
want to appear dumb” and attempted to “hide the fact that he has mental defects.” Dr.
Brown acknowledged his determinations that the Petitioner was competent to stand trial
and that an insanity defense could not be supported. In Dr. Brown’s opinion, the Petitioner
understood that the sexual abuse had been wrong in the context of his being unfaithful to
his wife but that the Petitioner did not understand that his actions were wrong and harmful
to the victim and were criminal acts. Dr. Brown said the Petitioner’s feelings of guilt
related to his having been unfaithful and that the Petitioner had “a pathological form of
dependency” with the Petitioner’s pastor, who told him to confess.
The transcript of the suppression hearing reflects that, after the Petitioner and Dr.
Brown testified, trial counsel said that, based upon Dr. Brown’s testimony about the
Petitioner’s inability to understand legal advice about whether to give a pretrial statement,
the defense would withdraw its ineffective assistance allegation for purposes of the motion
to suppress.
The trial transcript that was received as an exhibit reflected that trial counsel
challenged the State’s proof in a motion for judgment of acquittal. Specifically, as to Count
1, charging aggravated sexual battery, counsel argued that the State had not proven beyond
a reasonable doubt that the offense occurred before the victim’s thirteenth birthday. The
trial court denied the motion, finding that the evidence, viewed in the light most favorable
to the State, would support a finding of guilt of aggravated sexual battery. See Tenn. R.
Crim. P. 29.
Appellate counsel testified that he had been appointed to “take over a motion for
new trial that [sentencing counsel] had . . . agreed to take and then realized that he was
going to be unable to continue on.” In counsel’s opinion, after a review of the transcript
and records he received from sentencing counsel, he did not think the motion for a new
trial that sentencing counsel had filed needed to be amended. Counsel said he evaluated
the objections made by trial counsel but did not consider the “areas where the Court could
have acted without being prompted.” He said he argued the motion at a hearing and that
he evaluated what he believed were the best issues for the appeal. He agreed that the Court
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of Criminal Appeals affirmed the convictions and that the Tennessee Supreme Court
denied the application for permission to appeal.
Attorney Wencke-Eileen West, an expert in Tennessee criminal defense trial
practice, testified that she had not spoken with the Petitioner but that she had reviewed
documents from his conviction proceedings, including the trial transcripts, the discovery,
the opinion of the Court of Criminal Appeals in the conviction proceedings, and the post-
conviction petitions. In addition, Ms. West had been present in the courtroom for the
previous testimony at the post-conviction hearing.
Ms. West testified that, in her opinion, nothing “beneficial to” the Petitioner
occurred in the Petitioner’s police interviews. Ms. West noted that no plea offer or benefit
was “on the table” at the time of the interviews. She noted, as well, that pretrial counsel
had not “put on the record” at the interviews that he had advised the Petitioner against
making the statements and that counsel had not objected to the manner in which the officers
questioned the Petitioner.
Ms. West testified that an insanity defense would be a problematic strategy in the
Petitioner’s case due to the time span of the Petitioner’s offenses. She opined that “a lot
more extensive medical proof or psychological proof” would be necessary to sustain an
insanity defense. Ms. West stated that she had reviewed the trial transcript and that trial
counsel “was trying to argue the insanity defense . . . through the totality of the
circumstances” in his opening statement. She said that, in her experience, this was
improper and that she did not think “you could even get to an insanity defense through the
totality of the circumstances.” Ms. West thought Dr. Brown’s expert testimony had been
“more confusing for the jury than anything else.” She noted that he testified about
competence, insanity, and diminished capacity “kind of all in the same breath.” She opined
that a defense based upon the effects on the Petitioner of adverse childhood experiences
(ACEs) from having been in foster care, having been the victim of childhood sexual abuse,
and his anoxic brain injury from having been locked in a freezer would have been
preferable to a diminished capacity defense. She thought an ACEs defense could have
been successful on the rape charges.
Ms. West opined that an adequate motion pursuant to Tennessee Rule of Evidence
412 would have contained information about a relationship the victim reported she had at
age fourteen or fifteen. Ms. West said that she would have hired an investigator to “check
into” the person the victim identified. She acknowledged that this tactic would involve
questioning the victim about her sexual experience and that it “could be reasonable” for an
attorney not to pursue this tactic.
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Ms. West testified that the motion for new trial should have, but did not, raise issues
related to the Petitioner’s competency, Tennessee Rule of Evidence 412, and the
Petitioner’s mental health.
After receiving the proof, the post-conviction court filed a written order denying
post-conviction relief. This appeal followed.
ANALYSIS
Post-conviction relief is available “when the 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 (2025). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2025). A post-conviction court’s findings of fact are binding
on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
application of law to its factual findings is subject to a de novo standard of review without
a presumption of correctness. Fields, 40 S.W.3d at 457-58.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to
an accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. 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.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
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however, 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). To establish the prejudice
prong, a petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
I
Pretrial Counsel
The Petitioner contends that the post-conviction court erred in denying relief on his
ineffective assistance of counsel claim related to pretrial counsel. The Petitioner argues
that pretrial counsel provided deficient performance in “walking his uncharged client down
to the police station and allowed the police to draw a confession from [the Petitioner]” and
that counsel’s having done so was “glaringly prejudicial,” without further explanation. The
State responds that the court did not err in denying relief. We agree with the State.
In its order denying relief, the post-conviction court found that pretrial counsel
repeatedly advised the Petitioner against making a statement to the police. The court found
that counsel advised the Petitioner that (1) no reason existed, in the absence of an
investigation or charge, to give a statement that might be used as evidence in a later
proceeding, (2) any confession would limit the Petitioner’s subsequent ability to contest
his guilt, and (3) the potential charges were significant and carried the possibility of
imprisonment. The court found that counsel “would have been helpful” in reinforcing the
legal advice in writing, noting that the Petitioner’s memory was poor and he had been
suffering the consequences of his admissions to his wife and fellow churchgoers. The court
found that counsel had been able to delay the Petitioner’s initial statement to the police and
found that the Petitioner’s eventual pretrial statements were due “not to the insufficiency
of counsel’s advice but to the Petitioner’s decision to ignore counsel’s advice.” The court
found that the Petitioner chose to “prioritize spiritual concerns over all other concerns.”
Thus, the court concluded that any deficient performance had not been prejudicial and
denied relief.
The record does not preponderate against the post-conviction court’s determination.
Pretrial counsel testified that he advised the Petitioner, over a course of months, not to
make a statement to the police. Counsel warned the Petitioner, who had not yet been
charged, that any confession would place the Petitioner in danger of prosecution and
imprisonment. Counsel warned the Petitioner that a confession would foreclose the
opportunity to contest guilt at a trial and would leave only the question of punishment.
Although the defense expert testified at the hearing that she saw no reason “to walk
someone into B felonies when they’re not even charged with anything,” the court found
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that the Petitioner was driven by personal and spiritual concerns, to the detriment of his
legal best interests, and insisted upon making a pretrial statement against the advice of
counsel. When the Petitioner made his decision to make a statement, counsel urged him to
wait until counsel could attend the interviews, which counsel did. Other evidence of the
Petitioner’s guilt existed, in addition to the police statements. The Petitioner confessed to
his wife and people affiliated with the Petitioner’s church, and he wrote inculpatory
apology letters to the victim and her father. In resolving the ineffective assistance claim
against pretrial counsel, the court noted that counsel had not underscored his advice by
reducing it to writing but that any alleged deficiency had not been prejudicial. The court
did not err in denying relief on the Petitioner’s ineffective assistance claim for pretrial
counsel.
The Petitioner is not entitled to relief on this basis.
II
Trial Counsel
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that trial counsel provided ineffective assistance. The Petitioner argues that he was
entitled to relief on his claims related to counsel’s reliance on a defense expert, failure to
follow the procedure required by Tennessee Rule of Evidence 412(d) for presentation of
certain evidence, and failure to ensure that the State made an adequate election of offenses
for Count 1, charging aggravated sexual battery. The State responds that the Petitioner has
not shown that the court erred in denying relief. We agree with the State.
A. Relying on Defense Expert at the Trial
The Petitioner argues that the post-conviction court erred in denying relief on his
ineffective assistance claim related to trial counsel’s calling Dr. Brown as a defense
expert. The appeal of the Petitioner’s convictions reflects the following:
Doctor Robert J. Brown, Jr., a forensic psychologist, testified that he
spent “well over 20 hours” interviewing, observing, and testing the defendant
to determine whether the defendant was competent to stand trial. Although
Doctor Brown initially concluded that the defendant was not competent,
Doctor Brown was able to restore the defendant’s competency. Doctor
Brown diagnosed the defendant with post-traumatic stress disorder, attention
deficit hyperactivity disorder, and an anxiety disorder that originated from
the “sexual abuse that he sustained from approximately age three until just
before he became a full-fledged adolescent.” Doctor Brown also concluded
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that the defendant suffered an “anoxic traumatic brain injury from those
episodes where he was placed in the freezer with insufficient oxygen” by his
older stepbrother. Doctor Brown testified that the defendant’s mental
diseases and defects rose to the level of “diminished capacity” “[c]linically,
without question” but only on “two of the four prongs” “legally.” He
determined that by the time the defendant confessed to sexually abusing the
victim, he understood the wrongfulness of his conduct.
During cross-examination, Doctor Brown acknowledged that the
defendant was competent to stand trial and that an insanity defense could not
be supported. Doctor Brown conceded that “[f]rom the standpoint of clinical
perspective, yes, there are diminished capacities, but in reference to legal
definition, no.” He admitted that the defendant “knows that he did it
intentionally and that it was wrongful” but then claimed that he could not say
that the defendant intentionally engaged in the various activities with the
victim. He also claimed that he could not determine whether the defendant
had acted knowingly “because I don’t have a date. I don’t have a timeline as
to when this transpired.” Eventually, Doctor Brown acknowledged that the
defendant possessed the capacity to act intentionally or knowingly but lacked
the capacity to intentionally or knowingly inflict harm on the victim.
Kenneth George Arnold, 2022 WL 390588, at *4.
Trial counsel testified at the post-conviction hearing that, although Dr. Brown’s
findings did not support insanity or diminished capacity defense theories, Dr. Brown was
“all [he] had,” in view of the State’s evidence of the Petitioner’s many inculpatory
admissions to the police, his wife, church members, the victim, and the victim’s father.
Counsel said that calling Dr. Brown furthered a defense focused on the Petitioner’s “mental
deficiencies” and that he had hoped this evidence would garner sympathy for the Petitioner.
The post-conviction court found that the defense theory was to “make the most of
the evidence” that would support a conclusion that the Petitioner suffered from a mental
disease or defect that affected his “capacity to form the requisite mental state and even
sanity.” The court found that, in order to pursue such a defense, trial counsel needed “an
expert to diagnose mental disease or defect, specifically, anoxic brain injury resulting from
physical abuse amounting to torture when the Petitioner was a child.” The court found
that, in light of the evidence presented, “there was more scope to argue reasonable doubt
and there was a basis, if necessary, for rejecting criminal attempt, which requires intent.”
The court found that, although Dr. Brown referred to the Petitioner’s “guilt,” he
characterized it as “emerging” as the Petitioner realized the spiritual wrongfulness of his
actions, rather than his “criminal liability.” The court noted “that Dr. Brown’s testimony
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was helpful to the defense in some respects,” as demonstrated by the prosecutor’s closing
argument attacking Dr. Brown’s credibility. The court did not make a finding on the
question of deficient performance but found “that any deficiency in counsel’s performance
. . . was not prejudicial.”
At the point at which trial counsel undertook representation of the Petitioner, the
Petitioner had confessed to the police, against the advice of his pretrial counsel, and to
others that he sexually assaulted the victim. Trial counsel did not have a good-faith basis
for contesting guilt in the face of the Petitioner’s confessions. Counsel realized the
possibility that the Petitioner had mental health issues and cognitive impairment, and
counsel obtained evaluations of the Petitioner to determine if defenses based upon either
could be supported. Although Dr. Brown did not find that insanity or diminished capacity
defenses could be supported, he had relevant information about the Petitioner’s
background, which included childhood abuse, brain injury, and the Petitioner’s psychiatric
diagnoses. In addition, Dr. Brown worked extensively with the Petitioner and counsel to
facilitate communication and help prepare the Petitioner for the trial. Counsel chose a trial
strategy which involved calling Dr. Brown as a defense expert to testify about the
Petitioner’s childhood abuse and psychiatric diagnoses, while avoiding the Petitioner’s
testifying on his own behalf as to these matters. Counsel thought this strategy might garner
the jury’s sympathy for the Petitioner. Given the Petitioner’s pretrial admissions of guilt,
counsel’s options were limited, and the proof of the Petitioner’s guilt was strong. Although
the post-conviction court declined to make a finding as to whether counsel’s performance
was deficient, it found that the Petitioner had failed to prove prejudice as to any deficient
performance and denied relief. The evidence does not preponderate against the court’s
determination. The court did not err in denying relief.
The Petitioner is not entitled to relief on this basis.
B. Failure to Follow Tennessee Rule of Evidence 412 Procedure
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that trial counsel provided ineffective assistance by failing to follow the procedure
dictated by Tennessee Rule of Evidence 412(d) for admission of evidence under the so-
called “Rape Shield Law.” The State responds that the Petitioner has failed to demonstrate
error, and we agree.
At the post-conviction hearing, trial counsel testified that he had no knowledge of
any evidence which might form the basis for a Rule 412 motion. The Petitioner did not
present any such evidence at the post-conviction hearing, other than Ms. West’s
speculation about a reference in a report to a romantic relationship the victim had at age
fourteen or fifteen.
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In denying relief on this claim, the post-conviction court made the following
findings:
To the extent that the Petitioner’s acts were in dispute, he was acquitted [of
one count of rape]. To the extent that the Petitioner’s acts were not in dispute
and other elements of the offenses were in dispute, specifically, the date of
his contact with the victim’s buttocks, his role as authority figure, and his
mental state or capacity to form the requisite culpable mental state, evidence
[which could have been admissible pursuant to Rule 412] could not have
prevented him from being convicted. The Court therefore finds that any
deficiency in counsel’s performance in this respect was not prejudicial.
The Petitioner failed to offer proof at the post-conviction hearing of any admissible
evidence for which trial counsel failed to seek admission. This court will not speculate
about the nature of any witness testimony that was not presented at the evidentiary hearing.
See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Without this evidence,
the post-conviction court was, likewise, unable to assess the merits of any alleged deficient
performance in failing to seek admission of any such evidence and the prejudice to the
Petitioner from any evidence purportedly absent from the trial. The court concluded that
the Petitioner failed to prove his claim, and the record does not preponderate against this
determination.
The Petitioner is not entitled to relief on this basis.
C. Failure to Ensure an Adequate Election
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that he received the ineffective assistance of counsel because trial counsel failed to
object to the State’s election of the offense for the count charging aggravated sexual
battery. He argues that the offense required that the victim’s age be less than thirteen and
that the time span covered by the charge included dates on which the victim was age
fourteen. Thus, he argues that counsel’s deficient performance deprived him of juror
unanimity. The State counters that the court did not err in denying relief. We agree with
the State.
When evidence is presented of multiple offenses that would fit the allegations of the
charge, the State must elect the particular offense for which a conviction is sought, and the
trial court must instruct the jury as to the need for jury unanimity regarding the finding of
the particular offense elected. See, e.g., State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1988);
State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997). “The purpose of election is to ensure
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that each juror is considering the same occurrence. If the prosecution cannot identify an
event for which to ask [for] a conviction, then the court cannot be assured of a unanimous
decision.” State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993).
The record reflects that the State made the following election relative to the count
charging aggravated sexual battery: occurring between January 1, 2009 and December 31,
2011 “where the Defendant touched the victim on her buttocks underneath the clothing.
This occurred at the Defendant’s home in [description of neighborhood] in Harrison,
Tennessee.” The victim’s date of birth was August 7, 1998. See Kenneth George Arnold,
E2022 WL 390588, at *1. Thus, her thirteenth birthday occurred on August 7, 2011, which
was during the time period alleged in the indictment and the election of the offense.
Trial counsel testified at the post-conviction hearing that he had difficulty
determining when the offenses were alleged to have occurred in relation to the victim’s age
and that the Petitioner had not been a helpful source of information. Counsel said he spoke
to Petitioner’s sister and viewed the deed to a home in order to ascertain when the victim’s
family had lived there. Counsel explained that the dates of the offenses were “based on
the house they were living in and her age at the time they were living in that house.”
According to this court’s opinion in the appeal of the convictions, the victim testified that
the Petitioner touched her bottom under her clothing before her thirteenth birthday when
she was visiting his home for the weekend and “[e]ight months to a year before” the
Petitioner married her mother in July 2011 and eventually moving to a blended family
home in Hixson. Id. at *1-2. The deed for the Harrison home, which was a hearing exhibit,
reflected that the home was conveyed from the Petitioner and the victim’s mother to a third
party on August 19, 2011.
In denying relief on this issue, the post-conviction court made the following
findings:
There was no evidence at trial and there is no evidence now that dates the
contact elected in the first count to any time on or after [the victim’s
thirteenth birthday]. As for the failure of the election of offense for the first
count [charging aggravated sexual battery] to limit the period set forth in the
charge to a period when the victim was less than thirteen, the instruction on
election of offenses is clear that its purpose is to limit the jury’s consideration
of evidence to the elected evidence, not to negate an essential element of the
offense or otherwise change the law applicable to the elected evidence. The
Court therefore finds that any deficiency in counsel’s performance in this
respect was not prejudicial.
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The record reflects that, although the indictment charged conduct occurring in a
time period that included dates on and after the victim’s thirteenth birthday, the election of
offenses further specified that the offense occurred in the Harrison home, which the
Petitioner and the victim’s mother conveyed to a third party on August 19, 2011. The
victim testified at the trial that the sole charged instance of aggravated sexual battery
occurred before her thirteenth birthday, in the Harrison house, and before her mother and
the Petitioner married in July 2011, which was before the victim’s thirteenth birthday on
August 7, 2011.
Trial counsel testified that he did not recall whether he argued a motion for a bill of
particulars, but the trial record reflects that he filed one. In any event, the State provided
an election of offenses, and the trial record reflects that the jury was instructed in accord
with the election. Counsel testified about his efforts to identify when the aggravated sexual
battery incident was alleged to have occurred based upon the victim’s statements, his
talking to the Petitioner and his sister, and his reviewing the deed to the house in which the
incident was alleged to have occurred in order to determine when the Petitioner owned the
house in relation to the victim’s thirteenth birthday. The trial record reflects that the State
presented evidence of a single incident of aggravated sexual battery, which occurred eight
months to a year before the victim’s mother and the Petitioner married in July 2011, which
was a month before the victim’s thirteenth birthday and a month before the family moved
from the Harrison house, where the incident occurred. The indictment alleged a time
period which corresponded with this evidence. That the indictment alleged additional time
after the victim’s thirteenth birthday, in this limited context, was insignificant. Although
the post-conviction court did not address whether counsel provided deficient performance
in not objecting to the bill of particulars on this basis, it found that the Petitioner was not
prejudiced. The record does not preponderate against its determination. The State
presented evidence of a single incident occurring before the victim’s thirteenth birthday
and was otherwise consistent with the allegations of the indictment and the bill of
particulars. The evidence does not preponderate against the court’s determination that the
Petitioner failed to prove that he was prejudiced by a non-unanimous verdict.
The Petitioner is not entitled to relief on this basis.
III
Appellate Counsel
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that he received the ineffective assistance of appellate counsel. He argues that
appellate counsel failed to amend the motion for new trial filed by trial counsel to include
allegations of trial court error in (1) failing to sua sponte order a mistrial after trial counsel
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“professe[d the Petitioner’s] guilt in his opening statement,” (2) excluding evidence
pursuant to Tennessee Rule of Evidence 412, and (3) allowing the election to exceed the
time period during which the victim’s age was less than thirteen. The State responds that
the court did not err in denying relief, and we agree.
The same legal standard that applies to ineffective assistance of appellate counsel
claims applies to claims regarding the performance of trial counsel. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004). Regarding the selection of issues to be raised on
appeal, the determination “is generally within appellate counsel’s sound discretion.” Id. at
887. This court “should not second-guess such decisions, and every effort must be made
to eliminate the distorting effects of hindsight.” Id. Deference to tactical choices, however,
does not apply if such choices are not “within the range of competence required of attorneys
in criminal cases.” Id.
When a petitioner claims appellate counsel was ineffective for failing to raise an
issue on appeal, this court must consider the underlying appellate issue on its merits. Id.
[F]or the reviewing court to determine the merits . . . , a petitioner should
present the previously omitted issue in the same form and with the same legal
argument(s), that is, applying law to the facts of the case, which petitioner
asserts appellate counsel should have done. It is not enough to simply state
that appellate counsel should have raised certain issues on appeal and to
argue that these issues could have resulted in relief being granted to the
petitioner.
Russell Lenox Hamblin v. State, No. M2012-01649-CCA-R3-PC, 2013 WL 5371230, at *8
(Tenn. Crim. App. Sept. 26, 2013), perm. app. denied (Tenn. Feb. 24, 2014). Our supreme
court has also provided guidance, stating that reviewing courts should consider, in relevant
part, whether the omitted issue is “significant and obvious,” whether contrary legal
authority exists, whether the omitted issue is stronger than the issues raised on appeal,
whether an objection was lodged in connection with the omitted issues, whether the trial
court’s determination is subject to deference, whether appellate counsel testified about
appeal strategy, whether appellate counsel and the petitioner reviewed potential appellate
issues, whether appellate counsel reviewed all of the trial facts, whether the omitted issue
involves assignment of error, and appellate counsel’s level of experience. Carpenter, 126
S.W.3d at 882, 888 (citing Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999)).
Appellate counsel was questioned at the post-conviction hearing about why he did
not raise these specific issues in the motion for new trial and on appeal but testified
generally that he thought the previously filed motion for new trial was sufficient and that
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he had pursued the issues which he thought had the best possibility of success on appeal.
The post-conviction court made the following relevant findings:
The Petitioner alleges that appellate counsel was ineffective in not
amending the motion for new trial to challenge . . . the Court’s failure to order
a mistrial sua sponte after trial counsel’s concession in opening statement,
the Court’s exclusion of Rule 412 evidence, . . . [and] the Court’s allowance
of an election of offense for the first count that included time after the
victim’s thirteenth birthday when a victim under the age of thirteen was an
essential element of the offense . . . . For the same reasons that the Court
finds . . . that trial counsel was not ineffective in these respects, the Court
finds that appellate counsel was not ineffective in these respects.
As the post-conviction court noted, the Petitioner failed to prove his claims as to
trial counsel’s alleged ineffectiveness on these issues. In his brief, the Petitioner has
neglected to explain the arguments that appellate counsel should have presented on these
issues in the motion for new trial and on appeal of the convictions. See Russell Lenox
Hamblin, No. M2012-01649-CCA-R3-PC, at *8. The record does not preponderate against
the court’s findings.
The Petitioner is not entitled to relief on this basis.
IV
Cumulative Effect of Deficiencies of Performance
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that he was prejudiced by the cumulative effect of multiple instances of deficient
performance of counsel. He argues that the court failed “to meaningfully address” the
issue. The State responds that court did not err in denying relief on this basis, and we agree.
In a post-conviction case, “when an attorney has made a series of errors that prevents
the proper presentation of a defense, it is appropriate to consider the cumulative impact of
the errors in assessing prejudice” of an ineffective assistance of counsel allegation.
Timothy Terell McKinney v. State, No. W2006-02132-CCA-R3-PD, 2010 WL 796939, at
*37 (Tenn. Crim. App. Mar. 9, 2010), perm. app. denied (Tenn. Aug. 25, 2010); see State
v. Taylor, 968 S.W.2d 900 (Tenn. Crim. App. 1997). More than one instance of deficient
performance, when considered collectively, can result in a sufficient showing of prejudice
pursuant to Strickland. Timothy Terell McKinney, 2010 WL 796939, at *37; see Taylor,
968 S.W.2d at 909. The question is whether counsel’s deficiencies “cumulatively
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prejudiced . . . the right to a fair proceeding and undermined confidence in the outcome of
the trial.” Timothy Terell McKinney, 2010 WL 796939, at *37.
In denying relief on this claim, the post-conviction court found that the Petitioner
failed to establish prejudice resulting from the cumulative effect of multiple deficiencies
of performance. We acknowledge that, as to several issues, the court did not make specific
findings as to the question of deficient performance and found only that the Petitioner had
failed to show prejudice. Although the failure of a petitioner to prove one of the two prongs
for establishing an ineffective assistance of counsel claim is fatal to the claim, findings of
fact as to both prongs by a post-conviction court facilitate appropriate disposition of
cumulative deficiencies of performance claims, as well as appellate review of ineffective
assistance claims. See T.C.A. § 40-30-111(b); Henley, 960 S.W.2d at 580; Goad, 938
S.W.2d at 370.
In any event, the Petitioner argues generally that his attorneys “committed multiple
errors” but fails to explain how, in the face of the overwhelming evidence against him, a
reasonable probability of a different result existed. We note that the jury acquitted him of
one count of rape, despite his counsels’ alleged deficiencies. The post-conviction court
was unpersuaded, and the evidence does not preponderate against its determination in this
regard.
The Petitioner is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
s/ Robert H. Montgomery, Jr.
ROBERT H. MONTGOMERY, JR., JUDGE
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