Ernest Lee Jennings v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 7, 2014

ERNEST LEE JENNINGS, III v. STATE OF TENNESSEE

Appeal from the Circuit Court for Fayette County

No. 6337 J. Weber McCraw, Judge

No. W2013-01006-CCA-R3-PC - Filed April 17, 2014

The petitioner, Ernest Lee Jennings, III, appeals the denial of his petition for post-conviction

relief, arguing that he received ineffective assistance of trial counsel and that the trial court

erred in denying his motion to suppress and in admitting at trial evidence seized from his

room. Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R. and

R OGER A. P AGE, JJ., joined.

W. Erik Haas, Somerville, Tennessee, for the appellant, Ernest Lee Jennings, III.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Senior Counsel; Mike

Dunavant, District Attorney General; and Catherine Walsh, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

TRIAL PROCEEDINGS

The petitioner was convicted in the Fayette County Circuit Court of sexual

exploitation of a minor and three counts of rape of a child. The trial court sentenced him to

an effective sentence of eighty-five years in the Department of Correction. This court

affirmed the petitioner’s convictions and sentences on direct appeal, and our supreme court

denied his application for permission to appeal. See State v. Ernest Lee Jennings, No.

W2010-01484-CCA-R3-CD, 2011 WL 3330244, at *1 (Tenn. Crim. App. Aug. 3, 2011),

perm. app. denied (Tenn. Nov. 15, 2011).

The evidence presented at trial was summarized by this court in our opinion on direct

appeal as follows:

R.M.1 testified that, at the time of these crimes, he was nine years old. R.M.

explained that the Defendant was married to his aunt and that, at the time of

these incidents, the couple had been living in the front room of the home R.M.

lived in with his parents and brothers. R.M. recalled one day in particular

when he and his brothers were at home alone with the Defendant. The

Defendant told the other boys to go outside but told R.M. to stay in the house

or “he would shoot [R.M.].” R.M. testified that he was scared of the

Defendant and remained in the house. The Defendant handcuffed R.M. to the

headboard and removed R.M.’s clothes. Describing what the Defendant next

did, R.M. said the Defendant “put his wee-wee on my butt and made me suck

his wee-wee and he done that to me, too.” R.M. said that sperm, which was

“white and gooey,” came out of the Defendant’s penis, and the Defendant

wiped it away with a towel. The Defendant told R.M. that if R.M. told his

mom and dad, the Defendant would kill R.M. R.M. testified these events

occurred during the summer, while he was out of school, but he did not

remember the specific month.

On cross-examination, R.M. agreed that the Defendant was a security

guard and that the gun, handcuffs, and pepper spray in his bedroom were for

the Defendant’s job. R.M. described the Defendant’s bed as having bars along

the headboard and explained the Defendant handcuffed R.M. to these bars.

R.M. testified that the Defendant showed him a gun during these events and

told R.M. not to tell anyone. R.M. said that the first time he spoke of this

incident with the Defendant was after he heard his cousin mention that the

Defendant had engaged in similar behavior toward him. R.M. recalled that the

Defendant overheard R.M. and his cousin talking about what the Defendant

had done to them, and the Defendant said he was going to leave. After the

Defendant left, R.M. told his parents what had occurred.

C.M., R.M.’s younger brother, who was eight at the time of these

crimes, identified the Defendant in court and, when asked how he knew the

Defendant, replied, “Cause he did nasty stuff to me.” C.M. said that, in the

spare bedroom, the Defendant, “Put sperm in my mouth and put his wee-wee

1

It is the policy of this Court to refer to juvenile victims of sexual assault by their initials only.

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in my butt.” C.M. described the sperm as tasting like salt. C.M. said that the

Defendant undressed himself and then removed C.M.’s clothes. C.M. said that

this incident occurred during a school break, in the “morning time” while

everyone else was at the store. C.M. said that the Defendant told C.M. not to

tell anyone what had happened but did not threaten him.

T.W., R.M. and C.M.’s cousin who was six at the time of trial,

identified the Defendant and testified that the Defendant “sucked [his]

wee-wee” when he was visiting his cousins. He recalled that, when he and the

Defendant were in the Defendant’s room, the Defendant told T.W. to take his

clothes off, and T.W. did so. The Defendant then told T.W. to suck his penis.

T.W. testified that the Defendant “put [his penis] in my butt” and licked

T.W.’s butt. T.W. said that he was scared, so he tried to “get away” and told

the Defendant to stop. The Defendant told T.W. not to tell anyone what had

occurred. T.W. said that these events occurred in the summer while he was out

of school. During the summer, he would spend the night with his cousins and

these events occurred during one of those occasions.

N.M., R.M. and C.M.’s older brother who was thirteen at the time of

trial, confirmed that the Defendant lived in his home temporarily. He recalled

that, in June of the previous year, N.M.’s grandmother had a mild heart attack,

and the three boys stayed at home with the Defendant while their parents and

aunt, the Defendant’s wife, went to the hospital. While N.M.’s parents were

gone, the Defendant told N.M.’s brothers to go outside. The Defendant told

N.M. to come to the Defendant’s room to watch television but instead showed

N.M. a video on the Defendant’s laptop of a man and a woman having sex.

The Defendant then asked N.M., “Would you like to do that with me?” To

which N.M. replied, “No.” N.M. testified that the Defendant “tried to make

me and I kept on telling him no . . . .” The Defendant threatened N.M. that, if

he told anyone about what had occurred, he would shoot N.M. After being in

the Defendant’s room for about an hour, N.M. got up to leave, but the

Defendant began to chase him, so he “started running around the room and

unlocked the door and ran.”

Chad Lawson, a Somerville Police Department Investigator, testified

that, on September 3, 2009, he was dispatched to a residence where a possible

child rape occurred. En route, Officer Lawson was notified that the Defendant

was “at the jail trying to get in.” Officer Lawson said that he continued to the

residence to assess the situation before responding to the jail. After securing

services for the children and assigning officers various duties, Officer Lawson

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called the jail and instructed that the Defendant be “put [] in a room till [he]

could get there.”

Officer Lawson testified that the children were interviewed by forensic

interviewers who specialize in talking with child victims. Officer Lawson

watched the interviews from an observation room. Officer Lawson said that

the children’s in-court testimony was consistent with what they said in the

forensic interviews.

After beginning the process of taking statements from witnesses,

Officer Lawson went to the jail to meet with the Defendant. Officer Lawson

said that he thought it “unusual” that the Defendant was “trying to get in the

jail.” Officer Lawson met with the Defendant in a room at the jail where he

read the Defendant his Miranda rights and then took a statement from the

Defendant. Officer Lawson recalled that he asked the Defendant why he came

to the jail. The Defendant responded that, because he was an armed security

guard, he preferred to turn himself in rather than be arrested at his place of

work. Officer Lawson then asked the Defendant a series of questions, during

which Officer Lawson took notes. The Defendant and Officer Lawson then

initialed those notes, indicating they agreed with the content. Officer Lawson

said that the statement did not represent the “entire conversation” but was a

summary of the Defendant’s responses to questions.

Reviewing his notes, Officer Lawson recalled that, when he asked the

Defendant, “How did you get in jail,” the Defendant responded, “When they

started saying I had sexual contact with them, I left the house and turned

myself in to the jail.” The Defendant, however, denied having any sexual

contact with the children. The Defendant told Officer Lawson that the

children had “come on” to the Defendant.

Officer Lawson testified that, after he learned that the Defendant’s wife

had pawned the Defendant’s laptop, he retrieved the laptop from the pawn

shop. Pawn shop records indicated that the Defendant’s wife pawned the

computer on August 11, 2009. The pawn shop records further indicated that,

on the same date, the Defendant pawned a Taurus .9 millimeter gun. After

obtaining the laptop, Officer Lawson had the laptop analyzed.

Officer Lawson testified that he also conducted a search of the

residence and recovered pornographic CDs and photographs from the night

stand next to the bed in the Defendant’s bedroom. Approximately 105 of the

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photographs and the images recovered from the CDs were child pornography.

In addition to those images, Officer Lawson recovered cartoons depicting

sexual activity with children. Officer Lawson said that an Emachine, computer

tower, and zip drives were also recovered from the residence and sent for

analysis. Officer Lawson recalled that the Defendant’s bedroom door was

equipped with a lock and that he found a security guard uniform patch,

condoms, and a dildo in the Defendant’s room. The Defendant’s wife denied

owning the dildo. Officer Lawson also found firearms and a law enforcement

“duty belt” with a baton, handcuffs, and a flashlight in the Defendant’s

vehicle.

On cross-examination, Officer Lawson agreed the Defendant disclosed

in his interview that his wife had pawned his laptop and that pawn shop

records confirmed the Defendant’s laptop was pawned on August 11, and the

police recovered it from the pawn shop on September 4. Officer Lawson

testified that he did not search the home in which these crimes were alleged to

have occurred until September 10. Even though the Defendant left the

residence on September 3, the family remained in the residence from the time

the Defendant turned himself in until the police searched the residence.

Reviewing a photograph he took of the Defendant’s bed, he agreed that there

was not a headboard or any bars or boards at the head of the bed. Officer

Lawson testified that the Defendant’s wife and the victims’ parents claimed no

ownership of the pornographic pictures and CDs recovered from the

Defendant’s bedroom. Officer Lawson said that the CDs contained files with

the Defendant’s name on them. Officer Lawson agreed that, although it was

possible to have the dildo tested for bodily fluids, this testing was not done.

Likewise, police never attempted to recover fingerprints from the Defendant’s

handcuffs or any of the other items recovered. The Defendant told Officer

Lawson that he and his wife moved into the house where these crimes occurred

in November 2008 and remained there until he turned himself in at the jail on

these charges in September 2009.

Steve Bierbrodt, a Shelby County Sherif[f]’s Office detective, testified

as an expert in the field of computer forensics. Detective Bierbrodt said that

Officer Lawson requested Detective Bierbrodt run a computer analysis on the

Defendant’s computers and review multiple CDs. The computer analysis of

the laptop, zip drives, and the Emachine revealed nothing of evidentiary value

to this case. The CDs, however, contained more than 100 individual, separate

images of child pornography both in video format and still-frame pictures.

Detective Bierbrodt also found files with pornographic images on the

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Defendant’s Gateway computer tower. One such picture was of a young nude

boy with bandages on his body. Detective Bierbrodt said that he recovered this

photograph from the computer’s C-drive under “Pictures” with information

indicating the Defendant’s name and the file name “boys will be bois.” The

detective also found a picture of the Defendant on the C-drive within the

“Pictures” file.

On cross-examination, Detective Bierbrodt agreed that he can tell when

an item was created or modified but not who put the items on the CD.

Amber Jennings, the Defendant’s wife, testified that she had been

married to the Defendant for a year and three months. She met the Defendant

through her mother, who worked for the Defendant. Jennings said that the

Defendant first met her nephews when her sister brought them to see their

grandmother at work. Jennings testified that she and the Defendant moved in

with her sister on November 15, 2008, and remained there until September

2009 when the Defendant turned himself in on these charges. Jennings

acknowledged that she was initially hostile to the officers investigating this

case because she “didn’t want to believe it.”

Jennings described her marital relationship with the Defendant as “a

little strange.” In retrospect, she believed that the Defendant used her to

access her nephews. When asked if she and the Defendant had “a sex life”

during their marriage, she replied, “Not really.” She explained that the

Defendant “always” asked if her nephews could sleep in their room with them.

When her nephews did so, the Defendant would ask Jennings to either sleep

on the floor or “somewhere else.” Jennings also said that when she had found

her husband watching pornographic movies, she would ask the Defendant

“why” he viewed these movies, but she never received an answer from him.

She also noticed the Defendant looking in on the boys while they were bathing.

Jennings testified that she had access to the laptop but that she could not

access certain files. Jennings said that, at the Defendant’s request, she sold his

laptop for $100 to a pawnshop on August 11, 2009. Jennings denied any

knowledge of child pornography on the computers or in the night stand by

their bed.

Jennings recalled that, on July 15, 2009, her mother had a heart attack

and was taken to the hospital. Jennings, her sister, and her brother-in-law went

to the hospital, leaving the Defendant to care for the three boys, N.M., C.M.,

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and R.M.

Jennings recalled that the night the Defendant turned himself in, he had

walked past N.M’s bedroom and overheard N.M. and T.W. “saying

something” that “set [him] off.” Jennings said that the Defendant told her he

was “just going to turn hi[m]self in.” She said that she “didn’t know what all

was going on” because she did not hear what the boys had said.

On cross-examination, Jennings testified that she could not create files

on the Defendant’s laptop. She said she and the Defendant were expecting a

baby at one point in their marriage but that she miscarried. She said that she

moved out of her sister’s residence in September 2009 and had not lived there

since that time. Jennings agreed that she has visited with the Defendant during

his incarceration for these charges.

Ernest Lee Jennings, 2011 WL 3330244, at *1-5.

POST-CONVICTION PROCEEDINGS

Co-counsel, an assistant public defender, testified that she was appointed to represent

the petitioner in the general sessions court. On the day of her appointment, co-counsel met

with the petitioner and instructed him to not discuss the charges with anyone. Co-counsel

also met with the petitioner before the preliminary hearing. She said she gave the petitioner

copies of the victims’ statements and discussed them with him. Co-counsel also said that the

petitioner denied the allegations and that they discussed the seriousness of the charges and

the possible penalties.

Co-counsel explained that the purpose of the preliminary hearing was to determine

whether the testimonies of the victims would differ from their statements. Officer Chad

Lawson and one of the victims testified at the preliminary hearing. During a bench

conference, co-counsel viewed the contents of one of the DVDs recovered in connection with

the petitioner’s computer. She stated that the contents of the DVD included photographs that

appeared to depict child pornography. Co-counsel was not provided copies of the

photographs, but they were maintained in either the police file or the prosecutor’s file.

After the petitioner was indicted, co-counsel was appointed to represent him in the

trial court. She said she filed multiple pretrial motions, including a motion for change of

venue, a motion to sever the offenses, and a motion to suppress. The trial court denied the

motions. The motion to suppress challenged the search of the room that the petitioner and

his wife had been renting in the home where some of the victims lived. Co-counsel stated

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that any physical evidence came from this room.

Co-counsel did not recall the number of meetings that she had with the petitioner. She

said she met with the petitioner at least twice before any court appearance to discuss what

would occur. She also said she met with the petitioner on three or four occasions during the

time period following the pretrial hearings and before trial. Co-counsel recalled that the

petitioner consistently denied the allegations. Co-counsel stated that during the meetings,

they discussed the testimony at the preliminary hearing, the defense strategy at trial, and

plans to attempt to establish inconsistencies in the testimonies of the victims. The petitioner

talked about his wife and what he believed her testimony would be. Co-counsel interviewed

the petitioner’s wife and said Mrs. Jennings’ statement was not consistent with what the

petitioner believed she would say. Co-counsel noted that the State presented Mrs. Jennings

as a witness at trial and that her testimony was very harmful to the petitioner.

Co-counsel denied withdrawing from the petitioner’s case before trial. She explained

that once the public defender’s office is appointed to a case, any attorney in the office may

work on the case. Co-counsel noted that the petitioner’s case was complex and involved

multiple victims. As a result, lead counsel agreed to assist her on the case. Co-counsel said

that she discussed lead counsel’s participation with the petitioner and that the petitioner was

“grateful” to have two attorneys representing him. Co-counsel and lead counsel agreed that

lead counsel would assume the lead at trial and question the witnesses. Co-counsel sat beside

the petitioner at trial and answered his questions. She said both her and lead counsel

discussed the issues with the petitioner during trial.

Co-counsel did not believe that the petitioner testified at trial. She was certain that

she discussed with the petitioner whether he should testify. She said she always informed

her clients of the benefits and risks of testifying. Co-counsel explained that she generally

advised her clients to wait to see how the trial was going before deciding whether to testify.

She believed that in this case, the risk of damage that could have resulted from the

petitioner’s testifying outweighed any benefit.

On cross-examination, co-counsel said she believed that the victims testified well at

trial. The defense was able to identify some contradictions. Co-counsel explained that they

did not want to attack the child victims in front of the jury but sought to establish

inconsistencies in their testimonies. She further explained that the issue was whether the jury

believed the victims.

Co-counsel testified that she argued during the suppression hearing that the room

where the petitioner was staying had a lock on it restricting access. The victims’ parents,

who owned the house where the petitioner was staying, consented to the search. The trial

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court found that the petitioner did not have any privacy protection in the room. Other items

were recovered in a pawnshop, including a laptop computer and DVDs or CDs in a computer

case. The DVD shown at the preliminary hearing was from the computer case and appeared

to show child pornography.

On redirect examination, co-counsel testified that some DVDs were seized from the

petitioner’s room. Co-counsel said the DVDs, along with all of the other items seized from

the petitioner’s room, were challenged in the motion to suppress.

Lead counsel, a senior assistant public defender, testified that she became involved

in the petitioner’s case following the hearings on the pretrial motions. She was aware of the

case prior to that time and was involved in the planning aspects of the defense. Lead counsel

said she likely first met the petitioner shortly after the pretrial hearings because that was the

point where it appeared the case would go to trial. She said she met with the petitioner on

three or four occasions. The petitioner also met with the investigator, and co-counsel

continued to meet with him.

Lead counsel testified that she and the petitioner discussed his wife, Amber Jennings.

Lead counsel and the investigator then interviewed Mrs. Jennings. Lead counsel said Mrs.

Jennings was “elusive” and could not recall specific dates. Mrs. Jennings recalled that the

petitioner liked to be with the victims outside of her presence. She told lead counsel that she

would contact counsel regarding additional information but failed to do so. Lead counsel

stated that when she contacted Mrs. Jennings about the additional information, Mrs. Jennings

was not cooperative. Lead counsel later learned that Mrs. Jennings was involved with

another man and believed this was a factor in Mrs. Jennings’ lack of cooperation.

Lead counsel stated that she spoke to the petitioner’s employer about the dates during

which the petitioner was working and obtained his employment records. Lead counsel said

she could not use the information to establish an alibi defense. Rather, the information that

she obtained established that the petitioner was not working during the time periods that the

victims alleged that the rapes occurred.

Lead counsel testified that she did not receive copies of all of the photographs in

discovery. She was allowed to view the photographs and believed that they were maintained

under seal in the trial court clerk’s office. Lead counsel also interviewed the State’s

computer expert but did not seek funds to retain an expert for the defense.

Lead counsel said she spent many hours attempting to negotiate a plea agreement with

the State. The petitioner requested a two-year sentence with lifetime supervision or

probation. Lead counsel told the petitioner that this sentence was not available for the

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offenses with which he was charged. Rather, the State was willing to agree to a twenty-five-

year sentence at 100% for each of the child rape charges to be served concurrently. The

petitioner declined to accept the offer.

Lead counsel testified that she and the petitioner discussed whether he would testify

at trial. Lead counsel explained that she generally waited to see how the State’s proof

progressed at trial before making a recommendation as to whether a defendant should testify.

There was an allegation that the petitioner engaged in similar misconduct in the past. The

State issued a subpoena for the young man, and lead counsel told the petitioner that she

expected the State to call the man as a rebuttal witness if the petitioner testified. Lead

counsel said that after the State rested, she and co-counsel met with the petitioner and told

him that they believed they had made some headway with the forensic computer expert in

that he did not know who actually downloaded the pornography. Officer Lawson

acknowledged that no DNA had been extracted from the items of a sexual nature seized from

the petitioner’s room to show that the petitioner had used those items. Lead counsel also

believed that they had established inconsistencies in the victims’ testimonies. She

recommended that the petitioner not testify but said it was the petitioner’s decision not to do

so.

On cross-examination, lead counsel testified that she wrote a letter to the petitioner

dated March 1, 2010, stating that the State had agreed to a plea offer of twenty-five years.

Lead counsel told the petitioner that he could receive a sentence between eighty-three and

eighty-seven years at 100% if convicted. She recommended that the petitioner accept the

offer.

Lead counsel stated that one set of DVDs was seized from the petitioner’s room and

that another set was seized from the pawnshop. The DVDs had photographs of child

pornography on them. She believed that photographs from the DVDs seized from the

petitioner’s room were shown at trial. Lead counsel explained that photographs of child

pornography generally are kept under seal to protect the victims. She was allowed to view

the images but was not allow to obtain copies of the images.

Lead counsel testified that the defense strategy was to establish inconsistencies in the

victims’ statements and to argue that there was no DNA evidence connecting the petitioner

to the offenses. She recalled an issue regarding the headboard on the bed and whether it was

as described by one of the victims. She noted that a photograph of the petitioner’s room

contradicted the testimony of one of the victims. Lead counsel cross-examined all but one

victim. She explained that the victim’s testimony was very detailed and that she did not want

the jury to hear him repeat it.

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The petitioner testified that he believed that the warrantless search of his room was

unlawful. He stated that the door to his room had a lock and that only he and his wife had

a key. The officers obtained consent to search the room from the owners of the house. The

petitioner, however, felt that he had a right to privacy in the room. He stated that during the

suppression hearing, Officer Lawson testified that he did not know whether there was a lock

on the door but that Officer Lawson later produced a photograph of the lock.

The petitioner also complained of the admission of the photographs from the DVDs

seized from his room. He said the DVDs collected from his room were backup copies from

his computer and were rewritable. He further said Officer Lawson viewed the DVDs on his

personal computer before giving them to the forensic computer expert and could have loaded

the photographs on the DVDs. The petitioner maintained that other than the photograph of

the bandaged child, there were no photographs of child pornography on his computer or his

laptop. He further maintained that he received the photograph from an email and deleted it.

He said Officer Lawson testified during the suppression hearing that the DVDs did not have

any evidentiary value. The petitioner stated that the original complaint listed four DVDs but

that six DVDs were presented at trial. He stated that counsel failed to object to the admission

of the DVDs.

The petitioner testified that he did not view any of the photographs prior to trial. He

noted that during the trial, one of the victims testified that the petitioner handcuffed him to

the headboard on the bed and described the headboard as having “bars on it like a jail.” The

petitioner said a photograph showing that his bed did not have a headboard was not presented

until Mrs. Jennings testified two or three hours into the trial.

The petitioner testified that he received little communication from counsel and met

with them on only six or seven occasions. He said that following the suppression hearing,

co-counsel moved to withdraw as counsel and that he did not know that co-counsel still was

considered to be his counsel when lead counsel began representing him. The petitioner stated

that once lead counsel began representing him, he only met with her. He maintained that he

met with lead counsel the day after the pretrial hearings and did not meet with her again until

one or two days before trial when lead counsel and the investigator discussed the plea offer

with him. The petitioner said he told them that he did not commit the crimes and would not

enter a plea.

The petitioner stated that the only defense witnesses whom he identified for counsel

were his wife and his wife’s mother. He said his wife’s mother passed away before counsel

could interview her. He explained that he wanted to withhold obtaining her statement until

close to trial because he did not want the family knowing that she was assisting him. The

petitioner said he asked counsel to obtain his employment records because he was working

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on the days in which the victims said the incidents occurred. The petitioner further said

counsel told him that she was unable to obtain the records in time for trial.

The petitioner acknowledged that at the end of the trial, counsel discussed with him

whether he should testify. Counsel informed him of the possibility of opening the door to

allow additional evidence that would harm him. The petitioner said he decided against

testifying.

The petitioner complained that the State failed to establish who owned the dildo

seized from his room and that trial counsel failed to object to its admission into evidence.

He said counsel only questioned witnesses regarding whether any DNA evidence was on the

item. The petitioner further said that DNA was taken from him at the jail upon his request

but that no tests were performed. He explained that the condoms seized from his room were

used with his wife because she had a miscarriage and was not supposed to become pregnant

for six to eight months.

Following the evidentiary hearing, the post-conviction court entered an order denying

the petitioner’s request for relief. This appeal followed.

ANALYSIS

The petitioner asserts that he received ineffective assistance of counsel. The petitioner

asserts that the trial court erred in denying his motion to suppress and in admitting certain

items into evidence during the trial. Post-conviction relief “shall be granted when the

conviction or sentence is void or voidable because of the abridgment of any right guaranteed

by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann.

§ 40-30-103 (2012). The petitioner bears the burden of proving factual allegations by clear

and convincing evidence. Id. § 40-30-110(f). When an evidentiary hearing is held in the

post-conviction setting, the findings of fact made by the court are conclusive on appeal unless

the evidence preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn.

2006). When reviewing factual issues, the appellate court will not reweigh the evidence and

will instead defer to the post-conviction court’s findings as to the credibility of witnesses or

the weight of their testimony. Id. However, review of a post-conviction court’s application

of the law to the facts of the case is de novo, with no presumption of correctness. See Ruff

v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,

which presents mixed questions of fact and law, is reviewed de novo, with a presumption of

correctness given only to the post-conviction court’s findings of fact. See Fields v. State, 40

S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

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to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

reviewing court must indulge a strong presumption that the conduct of counsel falls within

the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not

second-guess the tactical and strategic choices made by trial counsel unless those choices

were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). The prejudice prong of the test is satisfied by showing a reasonable

probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

The petitioner argues that counsel were deficient in their representation, thereby

prejudicing the outcome of his case, by failing to adequately meet with him and failing to

investigate and prepare the case. In its order denying relief, the post-conviction court

credited trial counsel’s testimony and concluded that the petitioner had not met his burden

of demonstrating that counsel were deficient or that he was prejudiced by any of counsel’s

alleged deficiencies in representation. We conclude that the record fully supports the

findings and conclusions of the post-conviction court.

Counsel met with the petitioner on multiple occasions. Co-counsel filed various

pretrial motions, including a motion to suppress evidence seized from the petitioner’s room.

Counsel interviewed witnesses, including the petitioner’s wife, the petitioner’s employer, and

the State’s forensic computer expert. Counsel obtained the petitioner’s employment records

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in exploring an alibi defense. They viewed photographs found on the DVDs taken from the

petitioner’s room and the pawnshop. Based upon their investigation, counsel decided upon

and employed a defense strategy that involved identifying inconsistencies in the victims’

statements and challenging any connection between the petitioner and evidence seized from

his room. The petitioner has failed to show that counsel were deficient in their

representation.

The petitioner contends that the trial court erred in denying his motion to suppress

evidence seized from his room. He further contends that the trial court erred in admitting at

trial photographs, DVDs, and other items seized from his room. These issues, however, are

waived for failure to present them on direct appeal. See Tenn. Code Ann. § 40-30-106(g)

(noting that a ground for post-conviction relief is waived “if the petitioner personally or

through an attorney failed to present it for determination in any proceeding before a court of

competent jurisdiction in which the ground could have been presented”).

CONCLUSION

We conclude that the petitioner has failed to establish that he is entitled to post-

conviction relief. Therefore, we affirm the judgment of the post-conviction court.

_______________________________________

ALAN E. GLENN, JUDGE

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