Assigned on Briefs April 14, 2015.
Appeal from the Criminal Court for Shelby County No. 10-04987 James C. Beasley, Jr., Judge.
Brooks Stevenson, Memphis, Tennessee, for the appellant, Byron Becton.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.
JAMES CURWOOD WITT, JR., JUDGE.
The evidence at the petitioner's jury trial revealed that, between 7:00 and 7:30 p.m. on December 16, 2009, the victim left her Memphis residence on foot, intending to purchase marijuana from a friend. State v. Byron Becton, No. W2011-02565-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson, Mar. 11, 2013). While en route to her friend's house, the victim was approached by the petitioner, who inquired whether she knew where he "'could go and sit and get high?'" Id. The victim indicated an abandoned house nearby and continued walking. Id. The petitioner then grabbed the victim and pushed a sharp object against her back, threatening to kill her if she did not comply. Id.
The petitioner forced the victim into an abandoned house, keeping one arm around her neck and continuing to press something sharp against her back. Id., slip op. at 3. The petitioner led the victim into "'the first bedroom on the left'" and struck the victim. Id. The victim struggled to fend off the petitioner as he continued to strike her with his fist and choke her; the petitioner also beat the victim with a nearby light fixture. Id., slip op. at 3-4. When the victim was unable to continue fighting, the petitioner ordered her to remove her clothing. Id., slip op. at 4. The petitioner then repeatedly penetrated the victim's vagina with a nearby beer bottle. Id.
Afterwards, the petitioner ordered the victim to remove his own clothing, and he forced her to perform fellatio on him. Id. After "a few minutes, " the petitioner "proceeded to get on top of [her] and have sex with [her]." Id. The victim gave the petitioner a fake name and told him that she would be "'his girlfriend'" in "an attempt to convince the [petitioner] to let her leave the house alive." Id., slip op. at 5. Eventually, the petitioner agreed to let the victim leave, and the victim left her bra behind as she got dressed. Id. The petitioner and victim parted ways at a bridge near the victim's house. Id., slip op. at 6. The petitioner walked toward a nearby Mapco, and the victim ran to her residence, where she told her fiancé what had transpired. Id. The victim's fiancé armed himself with a knife, and the two proceeded toward the bridge. Id. The victim saw the petitioner standing outside the Mapco, and she and her fiancé "approached police officers who were parked in their patrol cars across the street from the Mapco." Id. After telling the officers what had happened and identifying the petitioner as the perpetrator, the officers arrested the petitioner. Id. Law enforcement officers who later examined the abandoned house located the items the victim had described, including, among other things, a beer bottle, a folding knife, a bra, and a light fixture. Id., slip op. at 17.
The victim was transported to the hospital and then to the Mid-South Sexual Assault Resource Center for an examination. The victim had multiple injuries to her head, her upper body, her hands, and her legs. Id., slip op. at 7, 10, 13, 18. A penile swab taken from the petitioner "revealed a
'partial DNA profile'" which was "'consistent with the mixture of genetic material' from the victim and the [petitioner]." Id., slip op. at 20. Although the Tennessee Bureau of Investigation agent who performed the testing was unable to say "'to the exclusion of all other people'" that the DNA profile from the swab belonged to both the victim and the petitioner, she confirmed that "'it's consistent with the two.'" Id.
The petitioner chose not to testify and did not present any proof. Id., slip op. at 20. A Shelby County Criminal Court jury convicted the petitioner of six counts of aggravated rape. Id., slip op. at 1. The trial court merged the alternative counts, entered three judgments of conviction, and imposed a total effective sentence of 65 years' incarceration. Id. This court affirmed the judgments on direct appeal. Id.
On May 30, 2013, the petitioner filed, pro se, a timely petition for post-conviction relief. Following the appointment of counsel and the amendment of the petition, the post-conviction court held an evidentiary hearing on April 16, 2014.
The petitioner testified that, on the evening of December 16, 2009, he was "smoking crack" with the victim and a woman named Ann; the petitioner stated that he did not know Ann's last name but that "the neighborhood called her Auntie." According to the petitioner, he requested that trial counsel locate Ann to testify on his behalf but that trial counsel failed to do so. The petitioner admitted that he did not have an address for Ann but that he "knew what house and everything she stayed in" which was "in the vicinity where everything supposed to had happened at."
The petitioner stated that trial counsel failed to visit and photograph the crime scene, which the petitioner claimed would have proven that the alley referenced by the victim did not exist; that trial counsel failed to hire a private investigator; that trial counsel failed to hire an independent expert witness; and that trial counsel failed to seek DNA testing on the petitioner's clothing. The petitioner testified that trial counsel met with him "maybe two, maybe three times" in the ...