Kelvin Winn v. State of Tennessee

05/19/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 2, 2017

KELVIN WINN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 09-04902 James C. Beasley, Jr., Judge

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No. W2016-02200-CCA-R3-PC

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The Petitioner, Kelvin Winn, was convicted of first degree felony murder and received a

life sentence. He filed a petition for post-conviction relief, which the post-conviction

court denied. On appeal, the Petitioner argues that trial counsel’s performance was

deficient for failing to: (1) obtain an enhanced version of the surveillance video of the gas

station; (2) proffer actual evidence of the Petitioner’s height to the jury; (3) submit the

Petitioner’s clothing to be tested for blood; and (4) investigate the State’s jailhouse

informant for possible impeachment evidence. The Petitioner asserts that he was

prejudiced by trial counsel’s deficient performance because, absent these deficiencies, the

jury would not have convicted the Petitioner. Discerning no error in the post-conviction

court’s decision, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and J. ROSS DYER, JJ., joined.

Bryan R. Huffman, Covington, Tennessee, for the appellant, Kelvin Winn.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

Jury Trial

At the Petitioner’s trial, the following proof was presented, as summarized by our

court in its opinion on the Petitioner’s direct appeal:

This case arises out of the attempted robbery and shooting of the

store clerk, Abdallah “Zack” Assaedi, at Sam’s Food Market in Memphis

on November 21, 2008, for which the [Petitioner] was charged with one

count of first degree felony murder.

State’s Proof

Faheid Alsidi testified that the victim was his brother, and he was

notified on November 21, 2008, that his brother had been shot and killed.

Dr. Marco Ross, a forensic pathologist with the Shelby County

Medical Examiner’s Office, testified that he performed the autopsy on the

victim. Dr. Ross noted that the victim suffered a gunshot wound to his left

upper eyelid, with the bullet perforating the skull in the brain, which he

determined to be the cause of death.

Sergeant Andrew Brown with the Memphis Police Department

testified that he was assigned to uniform patrol the day of the shooting and

was dispatched to the scene. When he and his trainee partner arrived,

Sergeant Brown met with three witnesses who said that the store clerk had

been shot. He went behind the counter and felt that the victim had “a very

light pulse.” He secured the scene and talked briefly with the witnesses

before separating them to insure “the integrity of their information.” None

of the witnesses could identify the shooter or provide any descriptive

information aside from a description of the clothing the shooter was

wearing.

Myron Jones testified that he was a graduate student living in

Memphis at the time of the shooting. He went to Sam’s Food Market the

morning of the shooting to purchase a newspaper and some food, and two

other customers were in the store at that time. An individual wearing a

Halloween mask came into the store, ran up to the front counter, and said,

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“It’s a robbery . . . .” As the victim raised his hands, the gunman shot him

in the head, and Jones dropped to the floor. The gunman then demanded

money from Jones, and Jones gave him the two five-dollar bills in his hand.

When the gunman stepped behind the counter to go to the cash register,

Jones got up and ran out of the store to his home. Jones talked to his pastor

and then called the police and later gave a statement. Jones identified

portions of the surveillance video and still photographs taken from the

footage. On cross-examination, Jones said that he only got to look at the

gunman for “a minute[ ] or two” and that his face was covered with “a

Halloween mask with slits over his eyes.” In looking at one of the

photographs, Jones noted that the gun was in the gunman’s left hand.

However, he acknowledged that he had incorrectly stated in his statement

to the police that the gun was in the gunman’s right hand.

The video showed the suspect approach Sam’s Food Market but stop

in the alcove next to the entrance for several minutes. The masked man

then entered the store, shot the victim, took cash from Jones, tried to open

the cash register, and fled the scene. Still photographs taken from the video

detailed that the man was wearing dark clothing, a mask, and white gloves

and that he shot the victim with a gun held in his left hand.

Joseph Mario Williams testified that he worked at Sam’s Food

Market in November 2008. On the morning of November 20, the day

before the shooting, Williams and the victim were working in the store, and

Williams started to exit the store to clean up the grounds outside. As he

was walking out the front door, Williams noticed “a guy with a dark

sweater, or coat on, and he had the hood up, he had his hands in his pocket

and his head down . . . . [H]e lift[ed] up his head and he had a mask on.”

When the masked man saw Williams, he turned around and walked away

from the store. The mask was clear plastic, allowing Williams to discern

that the man was African–American, and had a “smiley face on it.”

Williams estimated that the man was 5’8”. He called the police and

reported the encounter that day.

Williams testified that, the following morning, he arrived at the store

shortly after 7:00 a.m. He was working in the deli area around 8:30 when

the robbery and shooting occurred. As he was hiding after the shooting,

Williams observed that the gunman was the same man who had been at the

store the previous day, noting he had on “[t]hat mask, the clothing, same

clothing, hood on and that mask, that clear mask with that smiling face on

it[.]” He saw the man trying to open the cash register. When the register

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would not open, the man stepped over the victim’s body, picked up some

money off the floor, and ran out of the store. Williams identified portions

of the store’s surveillance video and still photographs taken from the

footage in his testimony.

Patricia Jean testified that she lived next door to Sam’s Food Market

at the time of the shooting and was walking to the store around 8:30 a.m. on

the day thereof. As she passed an alcove between her house and the store,

she noticed a man wearing a black hooded sweatshirt, jeans, and black

shoes sitting in the alcove with his hands in his pockets. She was only able

to see the front part of the man’s face because he had his hood up, but she

saw that he had a “little spot,” such as a birthmark or freckle, on the right

side of his face. The man asked her for a quarter, to which she responded

that she would see if she had one when she returned from the store.

Jean testified that she went in the store and saw Williams, the victim,

and a man she knew as “Brother.” When she came out and passed the

alcove, the man again asked her for a quarter, but she told him that she did

not have one. She said that the second time, the man “raised his head up a

little bit more, so [she] could see a little bit better, but that’s it. Everything

else [wa]s the same.” She returned to her house after talking to a friend,

and the police arrived a couple of hours later to investigate the shooting at

the store. Jean was taken to the police station, where she spoke with

Sergeant James Terry Max and relayed her encounter with the man outside

the store. After giving her statement, Sergeant Max gave her a ride home

from the station, during which she recalled the birthmark on the man’s face

and told the officer that she could identify the man who asked her for

money.

During the course of the investigation, officers showed Jean five

different photographic arrays, on November 24, 2008, two on November

29, 2008, January 9, 2009, and January 11, 2009, each containing six

pictures. Jean did not observe the individual who had asked her for money

in any of the first four arrays; however, she was able to make an

identification from the final array. Jean identified the [Petitioner] in court

as the man she spoke with outside of Sam’s Food Market the morning of

the shooting.

Jean also identified portions of the store’s surveillance video and

still photographs taken from the footage in her testimony. She identified

herself and the man who asked her for money in several stills, including

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one that showed the man entering the market wearing gloves within the

minutes preceding the shooting.

On cross-examination, Jean admitted that the only person in the final

photographic array with a mole, birthmark, or freckle on the right side of

his face was the [Petitioner] and that she received a $1,000 CrimeStoppers’

tip after making an identification. However, she was not apprised that she

would receive money for making an identification until after she had

already identified the [Petitioner]. Jean admitted that when the man outside

the store asked her for a quarter, she kept walking and did not stop to talk to

him, explaining that she talked to him while looking over her shoulder as

she continued to walk. She estimated that she talked to him for less than a

minute on her way in and out of the store.

....

Officer Darnell Gooch with the Memphis Police Department

testified that he was directed to a residence by homicide investigators on

January 10, 2009, to get information from the [Petitioner] so he could be

contacted in the future. Officer Gooch noted that the [Petitioner] wrote

down his name, birth date, and social security number using his left hand.

Officer Gooch recalled that the [Petitioner]’s hair was “in braids, going to

the back and it was kind of short above the collar.”

....

Trinika Meredith, with the Shelby County Sheriff’s Office, testified

as keeper of records to the dates and locations that the [Petitioner] and

Antonio Johnson were housed in the Shelby County Jail. From February 6,

2009 until February 11, 2009, the two were housed on the second floor, a

floor designated for inmates with medical conditions, in the same pod. The

two were allowed out of their cells for six hours every day, along with other

inmates of the pod level. On February 11, 2009, Johnson was moved to the

fourth floor but returned to the second floor on February 13, again in the

same pod as the [Petitioner], where they both remained until March 4,

2009.

Antonio Johnson, who acknowledged a rather extensive criminal

history, testified that he contacted the Memphis Police Department on

February 12, 2009, to give them information concerning the [Petitioner].

He explained that he met the [Petitioner] in court on February 6, 2009, and

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the [Petitioner] “was just blabbing off at the mouth about what was going

on.” The [Petitioner] was moved into the same pod as him later that night

and begun discussing the details of his case with Johnson.

Johnson testified that the [Petitioner] told him that, in November

2009, he went to a store to commit a robbery but was unable to because “he

was detoured by some people.” The second time, the [Petitioner] went in

with his gun in hand, demanded money from the cash register, and shot the

clerk in the face. The [Petitioner] said that there was a customer in the

store who “fell to the ground” upon seeing the [Petitioner], and the

[Petitioner] took money from him before fleeing the store. The [Petitioner]

told Johnson that he was wearing a “black hoody, some gloves, [and] some

black Gucci pants” and that his hair was “in a little Afro like then, or in

braids” at the time of the robbery and shooting. The [Petitioner] also

indicated that he wore a mask.

Johnson testified that he contacted the homicide bureau and

eventually spoke with Sergeant Max. He said that he had an occasion to

talk to the [Petitioner] again, after which he wrote down a few notes, and

the [Petitioner] told him that his brother dropped him off at the store prior

to the incident in a four-door, white 1999 Mercury. Johnson assisted the

[Petitioner] in trying to contact his brother “to use him as an alibi.” On

February 12, 2009, he was shown a photographic array, from which he

identified the [Petitioner]. Johnson stated that he was not prompted by the

police or anyone in the prosecutor’s office to obtain incriminating

statements from the [Petitioner].

On cross-examination, Johnson testified that the day after he spoke

to Sergeant Max, he was moved to general population on the fourth floor of

the jail. When he got a chance to the use the phone, he called Sergeant

Max to see if he was able to get him moved back to the second floor

because he believed that his “life was in jeopardy in that pod, because [the

Petitioner] was affiliated with the G[angster] D[isciples].” However, he

had no expectation that he could receive a favor from Sergeant Max.

Johnson said that it was his idea to take notes of his second conversation

with the [Petitioner], and his getting moved back to the second floor was

not a “favor for . . . taking the notes.” Johnson acknowledged that he was

taking several prescription drugs, including one for hallucinations, at the

time of his conversations with the [Petitioner].

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Sergeant Eric Freeman with the Memphis Police Department

testified that, on January 13, 2009, Sergeant Max, the lead investigator on

the case, requested that he look for a white Mercury Sable. The car was

parked in front of 1620 Pennsylvania Street and was owned by Linda Winn.

Sergeant James Terry Max with the Memphis Police Department

testified that he responded to the scene at 10:30 a.m. on November 21,

2008, and served as the lead investigator on the case. Officers downloaded

the video from the store’s surveillance system. The video from the outdoor

cameras showed an individual “walking . . . towards the store. The subject

walked into a little alcove, a little covered area, where he was out of view.

And . . . at least [ ] two customers walk[ed] by the subject and actually

look[ed] at the subject.” They determined who the two customers were

who talked to the subject and interviewed them. . . . . The other customer,

Dallas Jackson, said that he could not identify the individual because he did

not get a good look at his face.

....

Sergeant Max testified that he created a fifth photographic array, this

one containing the [Petitioner]’s picture. Because the [Petitioner] had an

obvious birthmark on his face, he attempted to find other individuals who

had “distinctive markings on their face[s],” and those placed in the array

bore some sort of discoloration or obvious anomaly in their complexion.

The array was shown to Patricia Jean on January 11, 2009, and, within

three seconds, she identified the [Petitioner] as the man she spoke with

outside Sam’s Food Market the morning of the shooting.

Sergeant Max testified that, when the [Petitioner] was arrested and

questioned, he denied any involvement in the robbery and shooting. The

[Petitioner] claimed that he was in Tunica, Mississippi, around

Thanksgiving 2008, as he and his brother had gone there to visit their

cousin, Yolanda Winn. The [Petitioner] was not sure of the exact date he

went to Tunica but recalled that he returned to Memphis on Thanksgiving

Day. The [Petitioner] told Sergeant Max that his mother and girlfriend

could verify that he went to Tunica. However, Sergeant Max was unable to

verify the alibi, as those he questioned were “[v]ery vague, very vague, no

dates . . . . No[ ] one could get [him] the exact date and time frame.” The

[Petitioner] later requested to speak with Sergeant Max again and, during

the conversation, claimed that his brother actually committed the crime.

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Sergeant Max noted that they received information that the suspect

“had possibly gotten out of a white four-door, like, Pontiac Sunfire type

vehicle,” and it was later confirmed that the [Petitioner]’s mother owned a

four-door, white 1999 Mercury Sable. In addition, on February 12, 2009,

Antonio Johnson, an inmate in the jail, called and provided the same

information as he testified to above, which Sergeant Max determined to be

credible.

[The Petitioner’s] Proof

Yolanda Winn, the [Petitioner]’s cousin, testified that she picked up

the [Petitioner] at a liquor store in Memphis on November 17 or 18, 2008,

and took him to stay with her in Tunica for “a couple of weeks.” On

November 20, during that two-week period, they went back to Memphis for

the [Petitioner] to get “some emergency food stamps” but returned to

Tunica the same day. Winn explained that the [Petitioner] does not drive

because he has an eye problem. Her sister, Latonya Murrell, brought the

[Petitioner] back to Memphis “[a]round the 27th.”

Jerold Conley testified that he was outside Sam’s Food Market on

the morning of November 21, 2008, and did not recall seeing anyone other

than Patricia Jean and Dallas Jackson.

Dallas Jackson testified that he was present at Sam’s Food Market

on the day of the shooting. He recalled speaking to someone who was

sitting in the alcove outside the market, but he could not see the man’s face

and was therefore unable to make an identification when shown a

photographic array. He was able to discern that the man “was very dark in

complexion.”

Linda Winn, the [Petitioner]’s mother, admitted that she owned a

white 1999 Mercury Sable. She said that the car was “running hot” and

needed a water pump at the time of the offense; therefore, it was parked in

her carport and no one was driving it.

Latoya Winn, the [Petitioner]’s sister, testified that she had a baby

on November 20, 2008, and that the [Petitioner] did not visit her because he

was out of town.

Lakeshia Atkins testified that she saw the [Petitioner] on November

21, 2008, in Memphis when the [Petitioner] was in town to get food stamps,

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but she could not recall what time of day she saw him. She and the

[Petitioner]’s brother, Robert Sutton, went to the hospital that same day to

visit Latoya Winn, and Sutton was driving his mother’s white Mercury

Sable, despite it “running hot.”

Keith Sutton, the [Petitioner]’s brother, testified that Lynette

Villalpando and Patricia Jean were at his house sometime in the summer of

2009. Jean saw a picture of the [Petitioner], and she commented that he

was handsome and did not state that she had identified him “as being a

killer.”

Lynette Villalpando testified that she was a friend of the

[Petitioner]’s family and was with Patricia Jean at the [Petitioner]’s

mother’s house sometime in 2008 or 2009. She recalled that Jean saw a

photograph of the [Petitioner] and commented that he was handsome.

Villalpando found Jean’s comment odd “[b]ecause here you accuse a man

of murder, but you can’t remember his face and what he looks like.”

Dr. Jeffrey Newschatz testified as an expert in eyewitness

identification concerning the issues and concerns with eyewitness

identifications, including the one in this case.

State v. Kelvin Winn, No. W2011-02568-CCA-R3-CD, 2013 WL 1858629, at *1-7

(Tenn. Crim. App. May 2, 2013), perm. app. denied (Tenn. Oct. 16, 2013). The jury

found the Petitioner guilty of first degree felony murder, and the trial court sentenced the

Petitioner to life. Id. at *1, 7. On appeal, this court affirmed the Petitioner’s convictions.

Id. Our supreme court denied further review.

Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief and argued that he

received ineffective assistance of counsel. At the post-conviction hearing,1 the Petitioner

testified that trial counsel did not allow him to participate in creating his trial strategy and

that trial counsel only visited him twice while he was incarcerated. The Petitioner noted

that trial counsel did not communicate with him other than those two visits. The

Petitioner stated that there were inconsistencies in the State’s proof at trial; for example,

Ms. Jean testified at the suppression hearing that the perpetrator’s birthmark was on the

left side of his face but stated at trial that it was on the right side. Additionally, the

1

The record reflects that trial counsel died before the post-conviction hearing; thus, only the

Petitioner testified at the hearing.

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State’s witnesses were inconsistent about whether the perpetrator was holding a gun in

his right or left hand and about the perpetrator’s height. The Petitioner stated that trial

counsel did not point out these inconsistencies to the jury, nor did he prove the

Petitioner’s actual height.

The Petitioner testified that he asked trial counsel to obtain an enhanced version of

the surveillance video recorded by the store that was robbed, so that the jury could better

see the perpetrator. Trial counsel informed the Petitioner that he enhanced the video, but

the enhanced version was not shown to the jury or admitted into evidence at trial. The

Petitioner also asked trial counsel to investigate whether any blood was found on the

Petitioner’s clothing and whether any fingerprints were found at the scene; trial counsel

did not investigate this evidence. Regarding the State’s witness, Mr. Johnson, the

Petitioner stated that he learned that Mr. Johnson had testified for the State in other cases.

The Petitioner informed trial counsel of Mr. Johnson’s prior experience as a witness for

the State and asked trial counsel to speak to the prosecutor in his case. Trial counsel

never told the Petitioner whether he spoke to the prosecutor about Mr. Johnson.

Regarding the photographic lineup that the State showed to Ms. Jean, the Petitioner

pointed out to trial counsel that his photograph was the only one where the individual had

a birthmark on his face. However, the Petitioner asserted that he never looked at the

photographic lineup and that trial counsel never showed the lineup to him. The Petitioner

stated that, during trial, counsel would not listen to the Petitioner’s suggestions, and “[i]t

didn’t seem like he was writing at all.” The Petitioner also noted that trial counsel asked

the trial court for a recess during trial to retrieve a cassette tape of a witness’s testimony;

however, trial counsel never retrieved the tape and never played the tape for the

Petitioner. The Petitioner asserted that if trial counsel had used the information provided

by the Petitioner at trial, the jury would not have convicted him of felony murder.

On cross-examination, the Petitioner stated that, if the surveillance video had been

shown in full to the jury, the video would have been exculpatory evidence proving that

the Petitioner did not commit the offenses at issue. The Petitioner agreed that trial

counsel retained the services of Dr. Neushaff, an expert in identification, to testify at his

trial. The Petitioner stated that some individuals informed him that Mr. Johnson told

them that he testified against the Petitioner to try to get out of jail. He stated that he gave

trial counsel the names of the individuals who heard Mr. Johnson’s statement; however,

trial counsel never followed up with these individuals. The Petitioner asserted that the

State made a “deal” with Mr. Johnson in exchange for his testimony against the Petitioner

and that the State failed to disclose this “deal.” On redirect examination, the Petitioner

agreed that the store’s surveillance video showed that the perpetrator had a mask

covering his face. The Petitioner stated that trial counsel should have argued that, if the

victim’s blood was not on his clothing, then the Petitioner could not have been present

during the offense.

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The post-conviction court questioned the Petitioner, who agreed that trial counsel

argued to the jury that the Petitioner had an alibi defense and that trial counsel called

several of the Petitioner’s family members to testify. The Petitioner also agreed that trial

counsel cross-examined Ms. Jean about her visit to the house of one of the Petitioner’s

family members, where Ms. Jean saw photographs of the Petitioner but did not recognize

him. The post-conviction court noted that, at the hearing on the Petitioner’s motion to

suppress Ms. Jean’s identification, trial counsel argued that the identification should be

suppressed, but the trial court denied the motion.

Regarding the Petitioner’s assertion that trial counsel should have requested that

his clothing be tested for blood, the post-conviction court found that testing would not

have “change[d] anything to put on proof that there [wa]s no blood on his clothes[.]” The

post-conviction court also found that it was unclear how the clothes would have been

analyzed and whether the trial court would have approved funding for any analysis.

Regarding the Petitioner’s assertion that trial counsel should have obtained an enhanced

version of the surveillance video, the post-conviction court found that “there was no

identification that was made based on the video. The only thing that the video showed

was the mask and maybe a physical description of the [perpetrator] . . . .” The post-

conviction court noted that Ms. Jean’s identification of the Petitioner was the “key” to the

State’s case and that trial counsel thoroughly cross-examined Ms. Jean regarding her

identification. The post-conviction court also found that trial counsel pointed out at trial

that Mr. Johnson had served as an informant and witness for the State on a previous

murder case.

The post-conviction court denied relief to the Petitioner after concluding that the

Petitioner had “failed to carry his burden of proof as to the ineffective assistance of trial

counsel.” The post-conviction court found that trial counsel “did an outstanding job of

representing the [P]etitioner[]” and “found him to be extremely well prepared both pre-

trial and during trial.” The post-conviction court noted that trial counsel “argued a

motion to suppress the identification of the [P]etitioner in a pre-trial hearing[,]”

“contested the credibility of each witness and extensively cross-examined and attacked

the credibility of the state’s chief identification witness[,]” and “presented a valid alibi

defense.” The post-conviction court also found that trial counsel put on witnesses to

attack the credibility of the State’s witnesses and presented an expert on identification.

The Petitioner’s timely appeal follows.

II. Analysis

On appeal, the Petitioner argues that the post-conviction court erred in denying

relief because trial counsel’s performance was deficient for failing to: (1) obtain an

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enhanced version of the surveillance video of the gas station; (2) proffer actual evidence

of the Petitioner’s height to the jury; (3) submit the Petitioner’s clothing to be tested for

blood; and (4) investigate the State’s jailhouse informant for possible impeachment

evidence. The Petitioner asserts that he was prejudiced by trial counsel’s deficient

performance because, absent these deficiencies, the jury would not have convicted him.

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound

by the post-conviction court’s factual findings unless the evidence preponderates against

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing

the post-conviction court’s factual findings, this court does not reweigh the evidence or

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,

“questions concerning the credibility of the witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence are to be resolved by the

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);

see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law

and application of the law to factual findings are reviewed de novo with no presumption

of correctness. Kendrick, 454 S.W.3d at 457.

Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee

cases). Both factors must be proven in order for the court to grant post-conviction relief.

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of

counsel’s performance “requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.

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at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, the 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. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

Failure to obtain an enhanced version of the surveillance video

The Petitioner asserts that trial counsel’s failure to obtain an enhanced version of

the surveillance video and present it to the jury at trial was deficient and that he suffered

prejudice as a result. In his brief, the Petitioner argues that, on the enhanced video, the

jury “would [have] be[en] able to better view the perpetrator and evaluate his height,

build, and complexion.” The post-conviction court found that “there was no

identification that was made based on the video. The only thing that the video showed

was the mask and maybe a physical description of the [perpetrator.]”

We conclude that the Petitioner has failed to establish that he was prejudiced by

trial counsel’s failure to obtain an enhanced version of the surveillance video. The record

supports the post-conviction court’s finding that the surveillance video was not a salient

part of the State’s argument that the Petitioner was the perpetrator of the felony murder.

Because the video showed that the perpetrator was wearing dark clothing, a mask, and

gloves, Kelvin Winn, 2013 WL 1858629, at *2, it is unlikely that enhancing the video

would have enabled the jury to better evaluate the perpetrator’s appearance.

Additionally, as the post-conviction court noted, the State’s strongest evidence of the

Petitioner’s identity was Ms. Jean’s identification on the photographic lineup. Further,

the Petitioner did not introduce an enhanced version of the surveillance video into

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evidence at the post-conviction hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). The Petitioner has failed to establish how showing an enhanced

version of the video at trial would have altered the jury’s verdict. Because the Petitioner

has failed to establish prejudice, we will not address whether trial counsel’s performance

in this aspect was deficient. See Finch, 226 S.W.3d at 316. The Petitioner is not entitled

to relief on this ground.

Failure to proffer the Petitioner’s height to the jury

The Petitioner asserts that trial counsel’s failure to prove the Petitioner’s actual

height to the jury was deficient. He argues that he was prejudiced by this failure because

Mr. Williams testified that the perpetrator was between 5’8” and 5’9”, and if the jury had

known that the Petitioner was 5’11”, it would not have convicted him. The post-

conviction court did not make specific findings regarding this issue, but, as noted above,

the post-conviction court concluded that trial counsel’s performance was not deficient

and denied relief.

We conclude that the Petitioner has failed to establish that he was prejudiced by

trial counsel’s failure to proffer evidence of the Petitioner’s actual height to the jury. As

noted above, the State’s strongest evidence of the Petitioner’s identity was Ms. Jean’s

identification of the Petitioner. It is unlikely that actual evidence that the Petitioner was a

few inches taller than Mr. Williams’s description of the perpetrator would have altered

the jury’s verdict. Because the Petitioner has failed to establish prejudice, we will not

address whether trial counsel’s performance in this aspect was deficient. See Finch, 226

S.W.3d at 316. He is not entitled to relief on this ground.

Failure to submit the Petitioner’s clothing for testing for blood

The Petitioner additionally asserts that trial counsel’s failure to submit his clothing

to be tested for the presence of the victim’s blood was deficient. He argues that he was

prejudiced by this failure because the lack of the victim’s blood on his clothing would

have established that he was not present during the offense. The State argues that

because the Petitioner was not identified as a suspect of interest in the case until more

than seven weeks after the offense, “[i]t would have been virtually impossible to establish

that any clothing offered by the [P]etitioner for analysis at that late stage was the same

clothing he wore on the day of the robbery/murder.” The post-conviction court found

that testing would not have “change[d] anything to put on proof that there [wa]s no blood

on his clothes[.]” The post-conviction court also found that it was unclear how the

clothes would have been analyzed and whether the trial court would have approved

funding for any analysis.

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We agree with the post-conviction court that the Petitioner cannot establish that he

was prejudiced by trial counsel’s failure to submit the Petitioner’s clothing for testing for

the victim’s blood. As we have noted above, the State’s strongest evidence against the

Petitioner was Ms. Jean’s identification; analysis of the Petitioner’s clothing would not

have contradicted her testimony. Moreover, the Petitioner did not present at the

evidentiary hearing the results of any such testing for the post-conviction court to

consider. The Petitioner has failed to establish that he was prejudiced by trial counsel’s

failure to request testing. Because the Petitioner has failed to establish prejudice, we will

not address whether trial counsel’s performance in this aspect was deficient. See Finch,

226 S.W.3d at 316. He is not entitled to relief on this ground.

Failure to investigate Mr. Johnson for possible impeachment evidence

The Petitioner asserts that the State had a “deal” with Mr. Johnson to let him out

of jail if he testified against the Petitioner. The Petitioner testified at the post-conviction

hearing that individuals had informed him that Mr. Johnson said that he lied during the

Petitioner’s trial so that he would be let out of jail. The post-conviction court found that

trial counsel emphasized at trial that Mr. Johnson had served as an informant and witness

for the State on a previous murder case.

We conclude that the Petitioner has failed to establish that he was prejudiced by

trial counsel’s failure to investigate an alleged “deal” between Mr. Johnson and the State

in exchange for his testimony. The portions of the trial transcripts included in the record

reflect that trial counsel cross-examined Mr. Johnson regarding his previous experience

testifying for the State. The Petitioner offered no evidence to support his allegation that

the State had a “deal” with the Petitioner besides his own assertion. More specifically,

the Petitioner did not present the testimony of the individuals who allegedly heard Mr.

Johnson’s statement. Thus, the Petitioner cannot establish that he was prejudiced by trial

counsel’s performance in this regard. See Black, 794 S.W.2d at 757. Additionally, the

record reflects that trial counsel filed a pretrial motion seeking disclosure of the

“existence, substance, and the manner of execution or fulfillment of any promise,

statement, agreement, understanding, or arrangement (between the State or its agents and

any prosecution witness, cooperating individual, or such person’s attorneys or

representatives) given for the purpose of obtaining said person’s testimony, cooperation,

or disclosure of information,” which the trial court granted. Because the Petitioner has

failed to establish prejudice, we will not address whether trial counsel’s performance in

this aspect was deficient. See Finch, 226 S.W.3d at 316. He is not entitled to relief on

this ground.

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III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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