Joshua R. Starner v. State of Tennessee

08/16/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 15, 2019

JOSHUA R. STARNER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 41200170 William R. Goodman III, Judge

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No. M2018-01015-CCA-R3-PC

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The Petitioner, Joshua R. Starner, appeals the denial of post-conviction relief, arguing

that he received ineffective assistance of trial counsel and that counsel’s actions deprived

him of his right to testify at trial. We affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

B. Nathan Hunt and Zachary L. Talbot, Clarksville, Tennessee, for the Petitioner, Joshua

R. Starner.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; John W. Carney, Jr., District Attorney General; and Robert Nash,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

This case stems from the abuse, neglect, and killing of the Petitioner’s twenty-

three-month-old stepson. State v. Joshua R. Starner, No. 2014-01690-CCA-R3-CD, 2016

WL 1620778, at *1 (Tenn. Crim. App. Apr. 20, 2016), perm. app. denied (Tenn. Aug. 18,

2016). The Petitioner and the victim’s mother, Caitlyn Metz, were indicted together and

jointly tried. Id.

At trial, evidence was presented showing that the Petitioner was with the victim all

day on February 7, 2009, the day the victim was admitted to the hospital for his injuries,

and that the codefendant was with the victim at all times that day except for a period of

approximately two hours when she left to purchase groceries at a commissary on a nearby

military base. Id. at *3, *10-12. When the codefendant returned from the commissary,

she immediately discovered that the victim was unresponsive and his body limp. Id. at

*11. She screamed and informed the Petitioner of the victim’s state, and the Petitioner

called 9-1-1. Id. The emergency medical technician who responded to the scene stated

that the victim was listless and unresponsive but was making some effort to breathe. Id.

at *2. At the time, one of the victim’s pupils was completely dilated and the other pupil

was sluggish, and the victim exhibited signs of deep brain injury. Id. at *3. The victim

was intubated and transported to the hospital. Id.

An officer responding to the scene spoke with the Petitioner, who was upset and

crying. Id. The Petitioner told the officer that he had left the victim alone in the bathtub

for a brief moment, and when he returned, the victim was lifting his head out of the water

and coughing and spitting up water. Id. He did not indicate that the victim had suffered

any other injuries. Id. The Petitioner claimed the victim seemed fine when he removed

him from the tub and that he observed the victim in his crib for twenty to twenty-five

minutes before leaving to take a shower. Id. After his shower, he checked on the victim,

who seemed to be sleeping peacefully, so the Petitioner decided to lie down in his own

bed and take a nap. Id. The Petitioner told the officer that he awoke when the

codefendant screamed that the victim was not breathing, and he immediately called 9-1-1.

Id.

Expert medical testimony established that the victim was in distress and

unconscious when he arrived at the hospital. Id. at *4. The victim had injuries to his

head, neck, buttocks, and genitalia; had swelling and bruising throughout his body; and

had bruises around his anus. Id. A treating nurse noted that after the victim was admitted

to the hospital, the codefendant stayed fifteen feet away from him. When the nurse asked

the codefendant about the cause of the victim’s bruises, the codefendant shrugged her

shoulders and looked away. Id. The codefendant told one treating physician that the

victim’s bottom was red before she left to go to the commissary but that when she

returned, the victim was in severe distress. Id. She told another treating physician that

the victim received his eye injury four or five days earlier when he fell out of the

Petitioner’s jeep and hit his head on the edge of the vehicle’s door. Id. A treating

pediatric emergency medicine physician said the victim’s symptoms at the time he was

admitted to the hospital indicated he had substantial swelling of the brain, which

significantly compromised his cardiovascular system. Id. at *5. This physician said the

victim had multiple bruises that appeared to be more than a day old at the time of his

admission. Id. He also opined, after conducting his examination, that the victim had

suffered physical and sexual abuse. Id. The radiologist who read the victim’s brain scan

stated that the victim’s brain was completely swollen, and he estimated that it had taken

six to eight hours for victim’s brain injury to look the way it did on the scan. Id. The

radiologist said that the victim’s brain scan was performed at 3:58 p.m. on February 7,

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2009, and that six to eight hours before 3:58 p.m. would have been approximately 9:00

a.m. that day. Id.

A Child Protective Services employee who photographed the victim the day he

was admitted to the hospital stated that the victim had bruises on both ears as well as

bruises to his right eye, forehead, nose, chin, neck, left hand, inner thighs, genitalia, and

buttocks. Id. at *6. She also noted that the victim had an abrasion near his anus. Id. She

said the codefendant told her that she had spanked the victim five days prior to the

victim’s hospitalization and had noticed that her spanking him had caused bruises. Id.

The Child Protective Services employee also stated that the codefendant’s demeanor was

unusual because she was not crying or visibly upset. She said that during the interview,

the codefendant never asked about the victim’s condition and repeatedly sent and

received text messages. Id.

The medical examiner stated that the victim’s cause of death was multiple blunt

force injuries and that the victim’s manner of death was homicide. Id. at *7. She

determined that the injuries to the victim’s head were the most lethal and that because of

these injuries, the victim’s brain swelled, which caused him to become brain dead. Id.

The medical examiner noted that the bruises on the left side of the victim’s face were

consistent with slap or knuckle marks and that the bruises around the victim’s anus and

the tear at the edge of the victim’s anus were consistent with penetration of the victim’s

anus. Id. She noted that the victim had many hemorrhages inside his eyeballs and in the

nerves that connected the eyeball to the brain and that these injuries could have occurred

if the victim had been forcefully shaken or if the victim’s head had struck something. Id.

The medical examiner said that although it was difficult to estimate when the victim

received these injuries, the victim would have become immediately symptomatic to the

extent that a “normal” person would have known something was wrong with the child.

Id. at *8.

Evidence was presented showing that on February 7, 2009, the codefendant

telephoned the Petitioner at 10:38 a.m., 10:47 a.m., 11:00 a.m., and 11:56 a.m., that the

codefendant checked out with her groceries at the commissary at 12:05 p.m., and that the

codefendant then called the Petitioner at 12:14 p.m., 12:18 p.m., and 12:34 p.m. Id. at

*12.

A detective who interviewed the Petitioner twice on February 7, 2009, stated that

the Petitioner cried throughout the interviews and asked to see the victim several times.

Id. The Petitioner told the detective he had given the victim a couple of light swats for

whining that day and that he believed the victim’s injuries were from the victim slipping

in the bathtub. Id. The Petitioner also said the bruises on the victim’s buttocks were

either from the victim learning to pull up his underwear or from the victim falling out of

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the Petitioner’s truck several times. Id. The Petitioner said that the victim’s bottom

would get red when he or the codefendant spanked him but that these spankings were not

hard spankings. Id. He told the detective that he did not know how the victim sustained

the injuries to his head and eyes. Id. at *13. The Petitioner denied hurting the victim; he

said he had never seen his codefendant hurt the victim and had only seen her give the

victim spankings. Id. He acknowledged that no one had control of the victim other than

the codefendant and himself. Id. The detective stated that when he interviewed the

codefendant on February 7, 2009, she did not seem upset, did not cry when she was

writing her statement, and did not ask about the victim until the end of her statement. Id.

At the conclusion of the proof, the jury convicted the Petitioner of aggravated

child abuse, felony murder committed during the perpetration of aggravated child abuse,

aggravated child neglect, felony murder committed during the perpetration of aggravated

child neglect, and aggravated sexual battery.1 Id. at *1. Thereafter, the trial court

dismissed the aggravated sexual battery conviction, merged the felony murder conviction

committed during the perpetration of aggravated child neglect with the felony murder

conviction committed during the perpetration of aggravated child abuse,2 and imposed an

effective sentence of life plus fifteen years. Id. On appeal, this court affirmed the

Petitioner’s convictions. Id. at *30.

Post-Conviction. Thereafter, the Petitioner filed a timely pro se petition for post-

conviction relief, alleging that trial counsel was ineffective in failing to present expert

testimony that the Petitioner was not responsible for the victim’s injuries, in failing to

object to the prosecution’s comment on his right not to testify during its closing

argument, in failing to object to the comment made by codefendant’s counsel during

opening statements that the Petitioner was incarcerated, in failing to seek a severance of

the Petitioner’s trial from the codefendant’s trial, and in failing to call codefendant’s

mother to testify about facts indicating that the codefendant planned to blame the victim’s

injuries on the Petitioner prior to the victim’s death. Following the appointment of

counsel, the Petitioner filed an amended petition for post-conviction relief, wherein he

also alleged that trial counsel was ineffective in failing to introduce evidence that the

codefendant had been investigated by Oregon’s Child Protective Services regarding

allegations of abusive conduct toward her other child.

1

The jury convicted the codefendant of aggravated child abuse, felony murder committed during

the perpetration of aggravated child abuse, aggravated child neglect, felony murder committed during the

perpetration of aggravated child neglect, and facilitation of aggravated sexual battery. Joshua R. Starner,

2016 WL 1620778, at *1. The trial court later dismissed the codefendant’s conviction for facilitation of

aggravated sexual battery. Id.

2

We have taken judicial notice of the appellate record from the Petitioner’s direct appeal for

these sentencing details.

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At the April 10, 2018 evidentiary hearing, the Petitioner testified that trial counsel

had been appointed approximately two years prior to his trial. He said that although he

and trial counsel met a “half a dozen times” prior to trial, she failed to obtain the evidence

he needed to prepare his defense, which affected the outcome of his trial.

The Petitioner said that he was married to the codefendant, the victim’s mother, at

the time the victim died, but he was not the victim’s biological father. The Petitioner

asserted that trial counsel was ineffective because she failed to present expert testimony

about the victim’s injuries. He noted that the victim had a slap mark on his left cheek and

said, “[If] you compared [the slap mark] to [the codefendant’s] hand and my hand, it

would have lined up with her hand.” The Petitioner stated that trial counsel never

explored the issue of who was responsible for the victim’s injuries, which “would have

shown the abuse was clearly coming from her and not myself.”

The Petitioner said he talked to trial counsel about obtaining an expert witness to

testify that he had not caused the victim’s injuries. He acknowledged that he failed to

present such an expert to testify at the post-conviction hearing. He also admitted that

there may have been a doctor or two who testified about the victim’s injuries, but he

claimed that trial counsel failed to adequately cross-examine these witnesses. The

Petitioner said that had trial counsel properly explored this issue at trial, the evidence

would have shown that the codefendant was responsible for the victim’s fatal injuries.

The Petitioner also asserted that trial counsel was ineffective in failing to call the

codefendant’s mother to testify at trial. He claimed the codefendant’s mother would have

testified that the codefendant was mentally unstable in stressful situations. He said that

although he talked to trial counsel about calling the codefendant’s mother, trial counsel

never subpoenaed her to testify on his behalf at trial. The Petitioner claimed that had the

codefendant’s mother been called to testify, her testimony about the codefendant’s mental

instability would have changed the outcome of the trial.

In addition, the Petitioner said he intended to have his brother, his father, his

stepmother, and his father’s best friend, who had dated the codefendant after the victim

passed away, to testify about incriminating statements made by the codefendant. He said

all of these witnesses were initially prepared to testify on his behalf and that State funds

were going to cover their travel expenses. However, after his stepmother talked to one of

the prosecutors, all of these witnesses refused to testify for him. The Petitioner stated

that his brother would have testified that the codefendant said it was “sort of nice not

having [the victim] around any more [sic].” In addition, he said that his father would

have testified about the codefendant’s “mannerisms on the day of the [victim’s] funeral”

and about the fact that the codefendant “didn’t care that her son had passed away.” The

Petitioner also said his stepmother had a photograph of the codefendant “partying on the

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day of the [victim’s] funeral.” Finally, he said that his father’s best friend would have

testified that the codefendant showed no “remorse, grief” about the victim’s death, that

she only showed emotion about the loss of her son when her own mother came over, and

that when her mother left, “all [the codefendant] cared about was having fun.” The

Petitioner said he did not believe that trial counsel ever subpoenaed these individuals,

even though he told her that he wanted these witnesses to testify on his behalf at trial.

The Petitioner acknowledged that none of these witnesses were present to provide

testimony at his post-conviction hearing.

The Petitioner maintained that trial counsel failed to object when the State

commented on his right to remain silent and when codefendant’s attorney informed the

jury that he was incarcerated at the time of trial. However, he did not describe the

substance of these comments, did not identify when these comments were made, and did

not explain how trial counsel’s failure to object to these comments changed the outcome

of his trial.

In addition, the Petitioner argued that trial counsel was ineffective in failing to

seek a severance of his trial from his codefendant’s trial. He said trial counsel never filed

a motion to seek a severance and actually told him there was no need for a severance. He

admitted that he never asked trial counsel to request a severance but claimed that he

“didn’t know . . . it was going to be more beneficial for [him][.]” He also acknowledged

that the trial court denied the codefendant’s request for a severance. The Petitioner said

after the trial, he learned from prison legal aid that he should have obtained a severance

because it would have allowed him to testify about the codefendant’s statement that it

was nice not to have the victim around anymore. The Petitioner claimed he was told

during a recess at trial that he could not introduce this incriminating statement against the

codefendant because the codefendant was unwilling to testify at trial. He stated that

when he asked trial counsel about presenting testimony about the codefendant’s

statement at trial, trial counsel told him that it “would cause a mistrial.” The Petitioner

said it was his understanding that had his trial been severed from the codefendant’s, he

could have presented this evidence.

The Petitioner also asserted that trial counsel was ineffective in failing to obtain

records from Child Protective Services in Oregon regarding the codefendant’s abuse of

her other child. He claimed that this “child apparently had gone through abuse that was

very similar to what had happened [with the victim] in Tennessee.” The Petitioner said

that although the abuse of this other child did not result in death, the abuse had the same

characteristics as the victim’s abuse and “would have tremendously helped [his] case.”

He said he informed trial counsel of these Oregon records, but he did not believe counsel

made any attempt to obtain them. The Petitioner admitted that although he had

subpoenaed Oregon’s Department of Children’s Services in an effort to obtain these

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records for the post-conviction hearing, he was unable to obtain them because they were

sealed. He said he was not aware of trial counsel interviewing any witnesses regarding

this other child’s injuries. The Petitioner admitted that he had provided no witnesses to

testify at the post-conviction hearing regarding the investigation conducted by the

Oregon’s Department of Children’s Services.

The Petitioner also maintained that trial counsel persuaded him not to testify at

trial, stating:

When I wanted to bring up the days leading up to . . . my son passing

away and [the codefendant] clearly committing abuse that I wasn’t aware of

at the at time and my desire to get up on the stand, she told me that if I got

up on the stand, it would only cause a mistrial and when [I discussed] all

these other pieces of evidence I wanted to bring up, [trial counsel] was like

you can’t get up there and testify to it. And I am like, well what is the point

of me even getting up there? Because if I can’t defend myself and clearly

show all that happened, what’s the point of getting on the stand?.

The Petitioner stated that if not for counsel’s advice, he would have testified that the

codefendant lied to the military about the Petitioner being an abuser so she could receive

benefits. In addition, he said he would have testified that the codefendant told him she

only kept the victim around because she was receiving five hundred dollars a month in

child support for him and that the codefendant often left the victim with her mother or

daycare so she would not have to care for him. The Petitioner also said he had wanted to

testify about the marks he had seen on the victim three days prior to the victim’s death.

Although he acknowledged telling the police that he did not have any idea how the victim

got these injuries, the Petitioner said he was now asserting that he remembered seeing

some marks on the victim that had been caused by the codefendant, even though he did

not observe her giving the victim these marks. He admitted that he told police the

codefendant went to the store for a couple of hours, and when she returned, the victim

had been beaten to death. He also admitted that he decided not to testify at trial after trial

counsel discussed the advantages and disadvantages of testifying with him. The

Petitioner acknowledged that neither he nor the codefendant testified at trial.

Trial counsel also provided testimony at the post-conviction hearing. She testified

she had been licensed to practice law in Tennessee since 1998 and although she

acknowledged that the Petitioner’s case was “[p]robably” her first murder trial, she said

she had handled some jury trials prior to representing the Petitioner. Trial counsel said

she met with the Petitioner more than a dozen times, both in jail and during the

Petitioner’s court appearances.

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Trial counsel asserted that the Petitioner never asked her to retain an expert to

show that the victim’s injuries could not have been caused by the Petitioner. She did not

recall any discussions with the Petitioner about how the victim’s injuries must have been

caused by someone else because of the Petitioner’s hand size and the size of the victim’s

bruises. She said that the Petitioner repeatedly claimed he had no idea what happened to

the victim and “quite often tried to protect [the codefendant] when we would talk.”

Trial counsel also asserted that she talked to the Petitioner several times about

whether to file a severance motion. She said the photographs of the victim “were

horrific” because they showed that the child had “bruises from head to toe” and “had

been beaten to death.” She believed that whoever was sitting at that counsel table would

be convicted. However, she said that once she and the Petitioner decided that the best

strategy would be to blame the codefendant for the victim’s injuries, they “wanted her

sitting at the [counsel] table with [them].” Trial counsel said that having a joint trial was

preferable to having an empty chair at a severed trial because it would give the jury

someone to focus on other than the Petitioner. She also said the evidence supported the

defense theory that the codefendant was responsible for the victim’s death because

several witnesses testified at trial that the codefendant was “nonchalant at the emergency

room” while the Petitioner “was crying.” She also said several police officers and

medical personnel testified that the codefendant seemed unaffected by the victim’s death

while the Petitioner seemed “very distraught.” Trial counsel asserted that the Petitioner

never told her he wanted his trial severed from his codefendant’s trial. When asked

whether she still felt that the best trial strategy was to blame the codefendant in a joint

trial rather than seek a severed trial for the Petitioner, trial counsel replied, “That was the

only strategy that I could find.”

Trial counsel stated that the Petitioner never mentioned wanting to call the

codefendant’s mother to testify. She said they discussed having Terrie Starner, the

Petitioner’s stepmother, and Johnny Kay, his father’s friend, to testify, and when

provisions were made for these witnesses to travel from Oregon to testify about the

codefendant’s previous behavior toward the victim, they refused to come because they

did not want to be involved. Trial counsel said that to her knowledge, the State never

discouraged these witnesses from testifying and that the State had actually helped her

obtain funding to cover the travel expenses for these witnesses. Trial counsel believed

that Terrie Starner and Johnny Kay would have been unable to testify as favorably as the

other witnesses who observed the Petitioner and the codefendant at the emergency room.

She also said the Petitioner never talked to her about having his father and brother testify

on his behalf. She maintained that the codefendant’s mother would not have provided

favorable testimony for the Petitioner at trial. Moreover, trial counsel said she was able

to elicit testimony from the State’s witnesses that was favorable to the Petitioner’s case.

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Trial counsel said that she had a note in her file showing that she attempted to call

the Oregon’s Department of Children’s Services in June 2013 about an investigation into

the codefendant’s other child, but she was unable to obtain these records because they

had been sealed. She said the Oregon investigation involved an incident that occurred

after the victim’s death in this case. While she acknowledged that she did not obtain a

court order to have a subpoena issued for these out-of-state records, she asserted that the

Oregon records had nothing to do with the Petitioner or the victim in this case.

As to the Petitioner’s claim that she advised him not to testify because his

potential testimony regarding his codefendant would cause a mistrial, trial counsel stated

that the Petitioner never wanted to say anything negative about his codefendant and that

they had to “really discuss the issue of blaming her” before he finally agreed to pursue

that strategy at trial. However, once they reviewed the evidence, the Petitioner was

“completely on board” with blaming the codefendant. Trial counsel noted that the

codefendant was convicted at trial of essentially the same offenses as the Petitioner. She

said that although they had discussed the Petitioner’s right to testify, the Petitioner never

told her anything that could explain the victim’s injuries, other than a bathtub fall, which

the medical examiner had ruled out as the cause of the victim’s death. Trial counsel

explained that due to the extent of the victim’s bruising, the Petitioner would have had to

have observed these bruises at the time he put the victim in the bath or would have had to

have caused or added to the victim’s injuries while the codefendant was at the

commissary. She said she discussed the Petitioner’s decision not to testify again at the

close of the State’s proof. At that point, the Petitioner told her he was pleased with her

performance and was happy about how the State’s proof had developed at trial.

Trial counsel did not recall the State making any sort of comment about the

Petitioner’s right to remain silent. As to the Petitioner’s claim that codefendant’s counsel

told the jury that he was incarcerated, she said the only thing she recalled was a comment

by perhaps the State that the codefendant had spent money after the Petitioner was

arrested. She said that, to her knowledge, no one commented that the Petitioner was still

incarcerated at the time of his trial.

Trial counsel asserted that the Petitioner’s case involved a substantial amount of

medical evidence. She said she traveled to Nashville to meet with the medical examiner,

and when she discussed with her the possibility of the victim having a bruising disorder,

the medical examiner indicated that she did not believe the victim had this disorder. Trial

counsel also met with Dr. Curtis Wushensky, who helped her determine when the victim

likely received his fatal injuries. She asserted that she was prepared for the Petitioner’s

trial and was well aware of the evidence that would be presented by the State’s experts.

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Trial counsel said that, viewing the case in hindsight, there was nothing she could

have done differently in her representation of the Petitioner. She declared that having the

codefendant tried jointly with the Petitioner was “the most effective approach” because

“having an empty chair” would have been very unfavorable to the Petitioner given the

evidence in this case. She did not recall telling the Petitioner that he should not testify

about the codefendant because it would cause a mistrial. She said that whenever they

discussed his testifying, they also discussed the damaging proof that would be elicited

regarding his explicit comments on chat logs and other acts he had done that “would not

have benefitted him at all.” She said that this damaging proof was never elicited because

the Petitioner opted not to testify. Trial counsel said that when she asked the Petitioner

about what happened when the codefendant went to the store, the Petitioner was unable

to provide any information explaining the victim’s fatal injuries, other than his claim that

the victim had been injured during a bathtub fall. Trial counsel said she was fearful that

if the Petitioner testified, the State would cross-examine him on the fact that the

codefendant’s father had spoken to him about not spanking the victim because it caused

bruising.

On May 14, 2018, the post-conviction court entered an order denying post-

conviction relief. In this order, the court made the following findings of fact and

conclusions of law:

In the Petition for Post[-]Conviction Relief and in Petitioner’s

testimony at the hearing on the Petition, he contends that trial counsel was

ineffective in failing to present expert testimony to prove that the mark[s]

on the victim were not cause[d] by Petitioner, but by the Codefendant,

Caitlyn Metz. In order for expert testimony to be admissible it must satisfy

the requirements of Rule 702 and 703 of the Tennessee Rules of Evidence.

Petitioner has offered no evidence that expert testimony exists which could

differentiate the size or gender of a person who inflicted trauma resulting in

bruising, choke marks or other marks on a child depicted in a photograph or

specific time of occurrence. The court is not to speculate on what might

have been presented. A petitioner successfully demonstrates deficient

performance when the petitioner establishes that his attorney’s conduct fell

“below an objective standard of reasonableness under prevailing

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

Therefore this contention is found to be without merit.

Petitioner complains that counsel was ineffective for failing to call

as a witness the mother of the Codefendant, Caitlyn Metz. Other than the

allegations of the Petitioner[,] there was no proof as to what the testimony

of the mother of the Codefendant, Metz would have been. Assuming for

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the sake of argument that the mother’s testimony would have been as

alleged that the child sustained bruises while living in Oregon and that the

child bruise[d] easily, there is serious question as to whether such testimony

would have been admissible as either relevant or if any probative value

would have been [substantially] outweighed by its prejudicial effect. This

court does not find that the failure to call this witness would violate either

prong of Strickland.

Petitioner asserts that trial counsel was ineffective by failure to

object to the prosecution commenting on the Petitioner’s right not to testify.

This court[,] after reviewing the portions of the trial transcript referenced

by Petitioner[,] does not find the statements by the Assistant District

Attorney to constitute an improper comment on the Petitioner’s right not to

testify.

Petitioner contends that counsel was ineffective by her failure to

object to statements made by counsel for the Codefendant, Metz, that

Petitioner was in jail. During Opening Statement counsel for Metz[] states

that Petitioner was charged or arrested first, subsequently counsel for

Petitioner in Opening Statement states that Metz proceeds to sell

Petitioner’s belongings while he is in jail. This court does not find that

such statement prejudice[d] the Petitioner, it does not establish that

Petitioner was incarcerated at the time of trial, Petitioner appeared at trial in

street clothes and there were no other indications of Petitioner’s status

visible to the jury. This court finds that as to this issue Petitioner has failed

to establish by clear and convincing proof that either prong of Strickland[]

has been violated.

Petitioner contends that counsel was ineffective as result of failing to

seek a severance from the Codefendant. It is noted that the request by the

Codefendant, Metz, for a severance was denied. Counsel for Petitioner

testified that she met with the Petitioner, discussed the case with him and

that as part of the trial strategy it was decided to have the couple tried

together rather than having the Petitioner tried alone. A criminal trial is a

very dramatic, vibrant and tense contest involving many variables and often

counsel must make quick and difficult decisions respecting strategy and

tactics which appear proper at the time but which, later, may appear to

others, or even to the trial lawyer himself, to have been ill considered.

Hellard v. State, 629 S.W.2d 4, at 9-10 (Tenn. 1982). There is a reasonable

basis for the decision made to have the defendants in this case tried together

and therefore this court finds this contention to be without merit.

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While not set forth in the Petition for Post[-]Conviction Relief,

Petitioner testified at the hearing that counsel was ineffective by fail[ing] to

call as witnesses Petitioner’s father, his father’s brother and a friend of his

father. Counsel testified that she made contact with these character

witnesses and that they declined to participate. Character witnesses which

are forced to attend trial almost always offer little if any benefit. This court

finds there to be no violation of the standards adopted in Baxter v. Rose,

523 S.W.2d 930 (Tenn. 1975), therefore this contention is found to be

without merit.

At the hearing Petitioner complained counsel failed to get into

evidence a statement that Metz made to the effect that it was nice not

having [the] child here. There was no proof presented that such statement

was ever made or existed. Therefore this court finds that the Petitioner has

failed to establish by clear and convincing evidence such allegation.

At the hearing Petitioner complained counsel failed to introduce

records from the state of Oregon showing that Metz had another child in

Oregon who suffered injuries. Counsel testified that such records were

under seal and that part of such events occurred after the date of the offense

which was the subject at trial. It is doubtful that such evidence[,] even if

obtained[,] would have been found to be admissible due to the issue of

relevance. This court does not find this contention to violate either prong

of Strickland.

Petitioner asserts that he was denied his right to testify as a result of

the actions of counsel. A review of the record does not support this

contention. Counsel testified that she reviewed with the Petitioner his right

to testify and that it was her advice to him not to exercise that right. The

trial transcript reflects that the trial judge reviewed with Petitioner his right

to testify and that he affirmed that he did not wish to do so. This court

finds that the decision not to testify was freely and voluntarily made by the

Petitioner. Therefore this court finds this issue to be without merit.

Following entry of this order, the Petitioner filed a timely notice of appeal.

ANALYSIS

I. Ineffective Assistance of Counsel. The Petitioner contends that trial counsel

was ineffective in failing to call an expert witness or to elicit evidence to show that he

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was not responsible for the victim’s injuries, in failing to call certain witnesses to testify

at trial, in failing to object to the State’s comments regarding his right not to testify, in

failing to object to a comment made by codefendant’s counsel that he “was in jail,” in

failing to seek a severance of his trial from the codefendant’s trial, and in failing to

present records from the State of Oregon showing that codefendant had another child

who had suffered injuries. The State responds that the Petitioner is not entitled to relief

because he failed to prove his claims by clear and convincing evidence.

Post-conviction relief is only warranted when a petitioner establishes that his or

her conviction or sentence is void or voidable because of an abridgement of a

constitutional right. Tenn. Code Ann. § 40-30-103. The Tennessee Supreme Court has

held:

A post-conviction court’s findings of fact are conclusive on appeal

unless the evidence preponderates otherwise. When reviewing factual

issues, the appellate court will not re-weigh or re-evaluate the evidence;

moreover, factual questions involving the credibility of witnesses or the

weight of their testimony are matters for the trial court to resolve. The

appellate court’s review of a legal issue, or of a mixed question of law or

fact such as a claim of ineffective assistance of counsel, is de novo with no

presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation

marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,

303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of

proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-

30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94

(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or

substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316

S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

In order to prevail on an ineffective assistance of counsel claim, the petitioner

must establish that (1) his lawyer’s performance was deficient and (2) the deficient

performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).

A petitioner successfully demonstrates deficient performance when the petitioner

establishes that his attorney’s conduct fell “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, 523 S.W.2d at 936). Prejudice arising

therefrom is demonstrated once the petitioner establishes “‘a reasonable probability that,

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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. at 370 (quoting Strickland, 466 U.S. at 694). “Because a petitioner

must establish both prongs of the test, a failure to prove either deficiency or prejudice

provides a sufficient basis to deny relief on the ineffective assistance claim.” Id.

First, the Petitioner argues that trial counsel was ineffective in failing to call an

expert witness or to elicit testimony to show that he did not cause the victim’s injuries.

He claims that he specifically informed trial counsel, prior to trial, that she needed to

prove he was not the individual responsible for the victim’s injuries and that trial counsel

failed to present or elicit such evidence at trial. While the Petitioner acknowledges that

he failed to present such an expert at the post-conviction hearing, he nevertheless asserts

that trial counsel was deficient because she “could have potentially developed such proof

by appropriate examination of the expert witnesses called by the State at trial.” He also

claims that trial counsel’s deficiencies were prejudicial because the jury never heard

expert proof tending to show that he was not responsible for the victim’s injuries.

This court has concluded that “[w]hen a petitioner contends that trial counsel

failed to discover, interview, or present witnesses in support of his defense, these

witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The presentation of the witness at

the post-conviction hearing is typically the only way for the petitioner to establish:

(a) a material witness existed and the witness could have been discovered

but for counsel’s neglect in his investigation of the case, (b) a known

witness was not interviewed, (c) the failure to discover or interview a

witness inured to his prejudice, or (d) the failure to have a known witness

present or call the witness to the stand resulted in the denial of critical

evidence which inured to the prejudice of the petitioner.

Id. Neither the post-conviction court nor this court may speculate on “what a witness’s

testimony might have been if introduced by defense counsel.” Id. Although the

Petitioner asserts that trial counsel should have called an expert to testify that he did not

cause the victim’s injuries, he failed to present such an expert at the post-conviction

hearing, failed to provide any tangible evidence or argument as to what testimony this

expert would have provided, and failed to show how such expert testimony could have

changed the outcome of his trial. Because the Petitioner has failed to show that trial

counsel’s performance to call such an expert was deficient or prejudicial, he is not

entitled to relief.

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The Petitioner also contends that trial counsel was ineffective in failing to

extensively cross-examine the State’s expert witnesses to elicit testimony that he was not

responsible for the victim’s injuries. As to this issue, the Petitioner makes only a general

claim of ineffectiveness and fails to explain what trial counsel should have done

differently in her cross-examination of these experts or how a different cross-examination

would have changed the outcome of his case, particularly in light of the overwhelming

evidence of his guilt. Our review of the record shows that trial counsel effectively and

meticulously cross-examined Dr. Randle Likes, Dr. Curtis Wushensky, Dr. Adele Lewis,

and Dr. Thomas Abramo in an effort to show that the codefendant, rather than the

Petitioner, was responsible for the fatal injuries to the victim. Because the Petitioner has

failed to establish that trial counsel’s cross-examination of these witnesses was deficient

or prejudicial, the Petitioner is not entitled to relief on this issue.

Second, the Petitioner contends that trial counsel was ineffective in failing to call

certain witnesses at trial. He specifically asserts that trial counsel should have called the

codefendant’s mother, who would have testified that she had warned him not to have a

relationship with the codefendant because she was mentally unstable. The Petitioner

claims trial counsel never investigated the codefendant’s mother and never subpoenaed

her to testify at trial. The Petitioner also contends that trial counsel should have called

the Petitioner’s brother, his stepmother, his father, and his father’s friend to testify at trial

because they could have testified about the codefendant’s “callous response to the death

of the victim[,] which would have been corroborated by the other witnesses (from the

hospital) who testified at trial.” He also claims these witnesses could have testified about

comments made by the codefendant, which “tend[ed] to show that she enjoyed not having

to care for the victim.” The Petitioner states that he informed trial counsel about these

witnesses, and that plans were made to transport these witness to trial, but trial counsel, at

some point, “ceased any effort to secure their presence.”

We agree with the post-conviction court that the Petitioner did not explicitly

include in his post-conviction petitions a claim of ineffective assistance of counsel based

upon trial counsel’s failure to call the Petitioner’s brother, his father, his stepmother, and

his father’s friend to testify at trial. However, the Petitioner did generally allege in his

petitions that he received ineffective assistance of trial counsel. See Marlon Yarbro v.

State, No. W2017-00125-CCA-R3-PC, 2018 WL 4441364, at *6 (Tenn. Crim. App. Sept

17, 2018). At the post-conviction hearing, the Petitioner provided extensive testimony

about trial counsel’s ineffectiveness in failing to call his brother, his stepmother, his

father, and his father’s friend to testify at trial, and the State cross-examined him on this

ground and never objected on the ground that the Petitioner had failed to include this

claim in any of his post-conviction petitions. Cf. Walsh v. State, 166 S.W.3d 641, 645

(Tenn. 2005) (“Issues not addressed in the post-conviction court will generally not be

addressed on appeal.”); Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004)

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(“[A]n issue raised for the first time on appeal is waived.”); see Steven Tyler Nabi v.

State, No. M2017-00041-CCA-R3-PC, 2018 WL 1721869, at *2 (Tenn. Crim. App. Apr.

9, 2018) (concluding that an issue was reviewable on the merits when the Petitioner

raised the issue at the post-conviction hearing and the State failed to object that the issue

was waived on the basis it had not been included in the pro se or amended petitions).

Had the State objected, the Petitioner could have amended his petition, which the Post-

Conviction Procedure Act and the Tennessee Rules of Post-Conviction Procedure clearly

contemplate and freely allow. See Tenn. Code Ann. § 40-30-104; Tenn. Sup. Ct. R. 28, §

8(D)(5). For these reasons, we conclude that the Petitioner did not waive his issue

regarding trial counsel’s failure to have his brother, his stepmother, his father, and his

father’s friend to testify at his trial.

While trial counsel’s failure to call these witnesses is reviewable on their merits,

we nevertheless conclude that the Petitioner has failed to establish that trial counsel was

ineffective in failing to call them. The Petitioner failed to present any of these witnesses

at the post-conviction hearing, and this court will not speculate on “what a witness’s

testimony might have been if introduced[.]” Black, 794 S.W.2d at 757. Moreover, the

proof at the post-conviction hearing showed that the few witnesses who initially indicated

they would testify for the Petitioner ultimately decided that they did not want to be

involved. We also do not believe that the codefendant’s mother would have provided

favorable testimony for the Petitioner at the Petitioner’s and codefendant’s joint trial. For

all these reasons, the Petitioner is not entitled to relief on this claim.

Third, the Petitioner asserts that trial counsel was ineffective in failing to object to

the prosecution’s comment on his right not to testify and in failing to object to the

comment made by codefendant’s counsel that the Petitioner was incarcerated. He claims

that trial counsel’s failure to object to these comments was deficient and had a

“prejudicial effect upon the jury’s view of Appellant.” Initially, we note that the

Petitioner risked waiving this claim by failing to reference the portions of the record

related to these issues. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will

be treated as waived in this court.”); Tenn. R. App. P. 27(a)(7) (A brief shall contain

“[a]n argument . . . setting forth . . . the contentions of the appellant with respect to the

issues presented, and the reasons therefor, including the reasons why the contentions

require appellate relief, with citations to the authorities and appropriate references to the

record . . . relied on.”). Failure to comply with this basic rule will ordinarily constitute a

waiver of the issue. State v. Willis, 496 S.W.3d 653, 716 (Tenn. 2016) (citing State v.

Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997)).

Waiver notwithstanding, we conclude that the Petitioner is not entitled to relief on

these claims. The post-conviction court found, after reviewing the trial transcript, that the

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prosecutor had not made an improper comment on the Petitioner’s right to testify, and the

record fully supports this finding. We have reviewed the entire trial transcript, including

the opening and closing arguments, and have failed to see anything that would amount to

a comment on the Petitioner’s right not to testify. During closing argument, the

prosecutor explained that the statements given by the Petitioner and the codefendant

included “what they had to say about the day that [the victim] died.” Later, the

prosecutor stated that the Petitioner and the codefendant “refuse[d] to tell us in their

statements” what happened to the victim. The prosecutor’s comments clearly refer to the

Petitioner’s and the codefendant’s failure to disclose in their statements to police who

was responsible for the victim’s fatal injuries. Because we agree with the post-conviction

court’s conclusion that trial counsel was not ineffective in failing to object to these

comments or any other statements made by the prosecution during his trial, the Petitioner

is not entitled to relief on this claim.

Regarding the Petitioner’s claim that trial counsel failed to object to the comment

made by codefendant’s counsel about the Petitioner’s incarceration, the post-conviction

court found that codefendant’s counsel stated during his opening argument that the

Petitioner was charged or arrested first and then Petitioner’s counsel stated in her opening

argument that the codefendant proceeded to sell the Petitioner’s belongings while he was

in jail. The post-conviction court then concluded that trial counsel was not ineffective in

failing to object to codefendant’s counsel’s comment. In particular, the court held that

the statement made by codefendant’s counsel did not prejudice the Petitioner because it

did not establish that Petitioner was incarcerated at the time of trial. The court noted the

Petitioner appeared at trial in street clothes, and there were no other indications that the

Petitioner was incarcerated at the time of trial that were visible to the jury. The record

fully supports the findings of fact and conclusions of law made by the post-conviction

court regarding this claim. Because the Petitioner has failed to show how trial counsel’s

failure to object to codefendant counsel’s statement was deficient or prejudicial, the

Petitioner is not entitled to relief.

Fourth, the Petitioner argues that trial counsel was ineffective in failing to seek a

severance of his trial from his codefendant’s trial. He claims he relied upon trial

counsel’s advice regarding the severance issue and later learned, on post-conviction, that

severance of his trial from the codefendant’s trial was necessary. The Petitioner asserts

that trial counsel’s decision not to seek a severance was both deficient and prejudicial

because it prevented him from presenting evidence relating to his codefendant’s

culpability.

“In order to succeed in proving ineffective assistance of counsel with respect to

counsel’s failure to file a motion . . . , [the petitioner] must satisfy both prongs of the

Strickland test, showing that counsel’s failure to file the motion was deficient and that the

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deficient performance prejudiced the defense.” Vaughn, 202 S.W.3d at 120 (citing

Strickland, 466 U.S. at 687). The Petitioner must show a reasonable probability that, had

the severance motion been filed, the outcome of his trial would have been different. See

Strickland, 466 U.S. at 694; Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where

defense counsel’s failure to litigate a Fourth Amendment claim competently is the

principal allegation of ineffectiveness, the defendant must also prove that his Fourth

Amendment claim is meritorious and that there is a reasonable probability that the verdict

would have been different absent the excludable evidence in order to demonstrate actual

prejudice.”); Gary Randall Yarnell v. State, No. E2004-01762-CCA-R3-PC, 2005 WL

1981471, at *5 (Tenn. Crim. App. Aug. 15, 2005) (“To prevail on either or both of these

ineffective-assistance complaints, the petitioner must demonstrate that the motions were

meritorious.”).

At the post-conviction hearing, the Petitioner testified that he learned after his trial

that he should have obtained a severance because it would have enabled him to testify

about incriminating statements made by the codefendant. However, trial counsel testified

that having a joint trial was preferable to having an empty chair at the Petitioner’s

severed trial because it gave the jury someone else to blame for the victim’s injuries. She

also said that there was substantial evidence to support the theory that the codefendant

was responsible for the victim’s injuries in light of her demeanor and behavior following

the victim’s admission to the hospital and that a joint trial was the only strategy she could

find in a truly “horrific” case in which the victim died. In its order denying relief, the

post-conviction court did not make any findings as to whether it would have granted the

motion to sever but did note that the trial court denied the codefendant’s pretrial request

for a severance. The post-conviction court also concluded that there was “a reasonable

basis for [trial counsel’s] decision . . . to have the defendants in this case tried together[.]”

We may not second-guess the strategic choices made by trial counsel unless they

were uninformed ones based on inadequate preparation. Hellard v. State, 629 S.W.2d 4,

9 (Tenn. 1982). After reviewing the record, we conclude that trial counsel’s decision not

to seek a severance in order to allow the jury to determine whether the Petitioner or the

codefendant was responsible for the victim’s injuries in a joint trial was an informed one

based upon adequate preparation. Moreover, the Petitioner has failed to show that had a

severance motion been filed, it would have changed the outcome of trial. See State v.

Dellinger, 79 S.W.3d 458, 468 (Tenn. 2002) (“Severance is not required when the

evidence admitted at trial would have been admissible against each defendant at separate

trials.”); State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000) (“[T]he [S]tate is

entitled to have the guilt determined and punishment assessed in a single trial where two

or more persons are charged jointly with a single crime, unless to do so would unfairly

prejudice the rights of the defendants.”); Black, 794 S.W.2d at 758 (affirming the denial

of post-conviction relief for failure to file a severance motion when there was “neither

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factual nor legal basis for the granting of a severance” and when the codefendant’s

severance motion had been denied). We do not believe that the limited testimony that the

Petitioner claims he would have provided in a severed trial would have changed the

outcome of his trial in light of the overwhelming evidence of his guilt that was presented.

Because the Petitioner failed to prove there is a reasonable probability that, had a motion

to sever been filed, the outcome of his trial would have been different, the Petitioner is

not entitled to relief.

Fifth, the Petitioner contends that trial counsel was ineffective in failing to

introduce records from the State of Oregon showing that the codefendant had another

child who suffered injuries. The Petitioner asserts that these records would have shown

“a pattern of treatment of children under [the codefendant’s] care” and that had these

records been admitted, they would have “shifted blame” away from him and toward his

codefendant. In its order denying relief, the post-conviction court noted that trial counsel

testified that these Oregon records had been sealed and referred to events that occurred

after the offenses in the Petitioner’s case. It held that even if such records had been

obtained, it was doubtful that they would have been admitted at trial because they were

irrelevant to the facts at issue in this case. The court then concluded that trial counsel’s

failure to introduce these records was neither deficient nor prejudicial. Because the

record fully supports the post-conviction court’s conclusion regarding this claim, the

Petitioner is not entitled to relief.

II. Denial of Right to Testify at Trial. The Petitioner also contends that trial

counsel denied his right to testify at trial. He asserts that trial counsel’s defensive

strategy was to have a joint trial in order to avoid having an “empty chair” at a severed

trial and claims that counsel’s repeated warnings that a mistrial would occur if he elected

to testify “effectively discourag[ed] him from exercising his right to be heard.” The State

responds that the Petitioner failed to show that trial counsel’s actions deprived him of his

right to testify.

Here, in contrast to an ineffective assistance of counsel claim cognizable under the

Sixth Amendment, the Petitioner appears to raise a free-standing constitutional claim that

trial counsel denied the Petitioner of his fundamental right to testify as “guaranteed both

by Article 1, section 9 of the Tennessee Constitution and by the Fifth and Fourteenth

Amendments to the United States Constitution.” Momon v. State, 18 S.W.3d 152, 155

(Tenn. 1999). Yet, as we will explain, the Petitioner has failed to prove by clear and

convincing evidence that he was denied this fundamental right.

Once again, the record shows that the Petitioner did not include this particular

claim in either of his post-conviction petitions. However, when the Petitioner provided

substantial testimony about how trial counsel deprived him of his right to testify at trial,

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the State cross-examined him on this issue and never objected on the basis that the

Petitioner had failed to include this claim in his petitions. See Walsh, 166 S.W.3d at 645;

Cauthern, 145 S.W.3d at 599; see also Steven Tyler Nabi, 2018 WL 1721869, at *2. Had

the State objected, the Petitioner could have amended his petition. See Tenn. Sup. Ct. R.

28, § 8(D)(5). Accordingly, we conclude that this issue is reviewable on the merits.

A criminal defendant has a constitutional right to testify at trial. Momon, 18

S.W.3d at 157. Because the right to testify at one’s own trial is a fundamental right, this

right must be personally waived by the defendant. Id. at 161. In order to ensure that the

defendant has made a knowing, voluntary, and intelligent waiver of the right to testify,

defense counsel must show at a hearing on the record and prior to the conclusion of the

proof but outside the presence of the jury, that the defendant knows and understands:

(1) the defendant has the right not to testify, and if the defendant does not

testify, then the jury (or court) may not draw any inferences from the

defendant’s failure to testify;

(2) the defendant has the right to testify and that if the defendant wishes to

exercise that right, no one can prevent the defendant from testifying;

(3) the defendant has consulted with his or her counsel in making the

decision whether or not to testify; that the defendant has been advised of

the advantages and disadvantages of testifying; and that the defendant has

voluntarily and personally waived the right to testify.

Id. The Tennessee Supreme Court subsequently clarified that a defendant may waive his

or her right to testify either by engaging in the voir dire procedure outlined above or by

signing a written waiver of the right to testify. Momon, 18 S.W.3d 152 (Tenn. 1999),

opinion on petition to rehear, 18 S.W.3d at 175 (comparing Tenn. R. Crim. P. 23, which

permits a written waiver of the right to a jury trial, and State v. Muse, 967 S.W.2d 764,

768 (Tenn. 1998), which held that the right to be present during the voir dire of the jury

may be personally waived by the defendant in writing or on-the-record in open court).

The court held that the written waiver of the right to testify should not be executed before

the close of the State’s case-in-chief and must establish that the defendant knew and

understood the aforementioned items (1)-(3). Id.

The record in this case shows that after the State closed its case-in-chief, the

Petitioner signed a written waiver of his right to testify, and the trial court, prior to

accepting this waiver, confirmed with the Petitioner outside the presence of the jury that

the signature on the written waiver belonged to the Petitioner, that the Petitioner

understood the rights contained within the waiver, and that the Petitioner was waiving his

right to testify.

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Although the Petitioner generally claims that trial counsel deprived him of his

right to testify, he fails to acknowledge that he signed a written waiver of his right to

testify at trial. He also failed to include this written waiver in the appellate record.

Because the Petitioner failed to include his written waiver, which contained critical

information about his awareness of his rights, we must presume that the post-conviction

court’s denial of relief was supported by the evidence. See State v. Bibbs, 806 S.W.2d

786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812 (Tenn.

Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)). In

its order denying relief, the post-conviction court found that the record, which showed

that the Petitioner made his decision not to testify freely and voluntarily, did not support

the Petitioner’s claim that trial counsel denied the Petitioner of his right to testify. The

evidence presented at the post-conviction hearing does not preponderate against the post-

conviction court’s finding. Moreover, to the extent that the Petitioner asserts this issue

within the context of an ineffective assistance of counsel claim, we conclude that he has

failed to show that counsel’s performance as to this issue was deficient or prejudicial.

Accordingly, the Petitioner is not entitled to relief.

CONCLUSION

The Petitioner is not entitled to post-conviction relief. Accordingly, the judgment

of the post-conviction court is affirmed.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

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