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Sellers v. State

Court of Criminal Appeals of Tennessee, Jackson

May 9, 2017

WAYNE SELLERS
v.
STATE OF TENNESSEE

          Assigned on Briefs May 2, 2017

         Appeal from the Criminal Court for Shelby County No. 13-00442 J. Robert Carter, Jr., Judge

         Wayne Sellers ("the Petitioner") appeals the denial of post-conviction relief from his 2013 Shelby County Criminal Court conviction for aggravated rape, for which he received a sentence of twenty-three years' incarceration. In this appeal, the Petitioner contends that he was denied the effective assistance of counsel based on trial counsel's failure to explain the defense strategy to the Petitioner and object to the victim's in-court identification of the Petitioner. Discerning no error, we affirm the denial of post-conviction relief.

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

          Andrew S. Deshazo, Memphis, Tennessee, for the appellant, Wayne Sellers.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton Bush, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural Background

         Trial

         On direct appeal, this court summarized the proof at trial as follows:

[The Petitioner] was indicted for the aggravated rape of S.M., a 64-year-old woman. The victim was living in Memphis in December of 2011. The morning of the incident, S.M. set out on foot from her apartment in East Camilla Towers with her "red cart" and her "bags" to pay her bill at a storage facility. She was notified that her account was in arrears and she needed to pay $267 or the facility would sell her belongings. S.M. used the red cart like a walker to help her mobility. She intended to purchase a money order at the Kroger on Frayser Boulevard before returning to the storage facility. On the way to the bus stop, she got a chicken sandwich, a diet soda, and two orders of french fries at Checkers. S.M. then tried to figure out how to "catch a trolley or how to catch the bus." She saw a police officer directing traffic for a "relay race" and asked how to get to the Kroger. She ended up going the "wrong way."
As she walked, she met a man who introduced himself as "Tyrone Jenkins." He started to follow her and asked her where she was going. He offered to "show" her how to get to the bus. S.M. explained, "[l]ike a stupid fool I followed him like a dummy because I didn't want to go. I was scared and I was frightened so I pushed myself to go so I could get that money order sent out before it got too late." S.M. followed "Tyrone" under a bridge and into a field. At that point, she was "scared" and wanted to "take off" but her foot and left hip "froze."
At that point, "Tyrone" took her cart and "threw it against the weeds." S.M. explained that he "drug [her] clothes off . . . and then put his arm around [her] neck . . . and then he threw [her] down on the ground" on her back. "Tyrone" pulled her clothes and shoes off and got on top of her. S.M. tried to push him away but was unsuccessful. "Tyrone" told her to "relax" and not to say anything while he forced his penis into her vagina. This lasted "for a long time" before "Tyrone" climaxed. S.M. stated that it "hurt." When the incident was over, "Tyrone" left and S.M. screamed. "Tyrone" then came back, and helped S.M. put her shoes back on her feet before running away. As he ran away, he told S.M. where to catch the bus. S.M. managed to walk to a nearby tobacco plant and asked someone to call an ambulance.
Officer Wayne Ackerman of the Memphis Police Department arrived on the scene to find the S.M., whom he described as a "very emotional" woman "in her seventies or eighties maybe, . . . short, soiled clothing, didn't smell very nice, dirty." S.M. reported that she was forced to walk into the woods before she was raped. Officer Ackerman accompanied S.M.to the hospital while he sent another officer out to locate the scene of the rape.
While at the hospital, Officer Ackerman sat with S.M. for "probably two, three hours." During that time, no doctors examined S.M. Lieutenant Stephen Oliver came to the hospital to assist in the investigation; Officer Ackerman talked with him briefly. Shortly thereafter, a nurse gave Officer Ackerman the victim's chart and told him that S.M. was ready to be discharged. The officers planned to take S.M. from the hospital to the Rape Crisis Center for a rape kit exam. S.M. asked if she could use the restroom. When she stood up, Officer Ackerman noticed a "large puddle of blood that had pooled while she was laying down." The "bed was full of blood, " and Officer Ackerman and Lieutenant Oliver "helped [S.M.] have a seat back on the bed and called for nurses and doctors." S.M. was finally examined and received "minor surgery" to place eight stitches in her vaginal area.
While at the hospital, S.M. spoke with Lieutenant Stephen Oliver. She was able to give a physical description and first name of her attacker, "Tyrone."

         Once S.M. was released from the hospital, the officers transported her to the Rape Crisis Center of Memphis. Tammy Keough from the Rape Crisis Center of Memphis testified for the State as an expert in sexual assault nurse examination. She examined S.M. on December 3, 2011. S.M. complained of pain around her neck as a result of the incident. As part of the examination Ms. Keough took photographs of S.M.'s neck with a forensic light to check for bruising under the skin. S.M. had bruises consistent with someone applying pressure to her neck and collarbone area. The bruises were not visible to the naked eye but could be seen with the forensic light and were visible in the photographs taken with a special filter. The victim also had scratches on the back of her arms and legs but reported that she did not receive them from the incident and refused to allow Ms. Keough to photograph these injuries. The victim denied having consensual sex in the previous four days. The victim was not able to "tolerate" an examination of the vagina with a speculum. Ms. Keough described the visual examination of the victim's vagina as follows:

[T]here was dried blood over the entire area and then these were basically stitches, sutures or stitches, that I was able to see . . . . [L]eading from the outside of her vagina towards the anus was where the stitches were between her vagina and the anus . . . .
The first stitch was at the beginning of the fossa navicularis, a boat-shaped depression between the vagina/hymen and the frenulum, and extended through the posterior fourchette, the muscular area between the vagina and the anal area. Ms. Keough was not able to ascertain how many, if any, stitches were on the inside of the vagina because "there was a lot of blood and [the examination] was very painful [to the victim]." Ms. Keough took photographs of the victim's vagina as part of the examination. Two photographs were admitted into evidence. One photograph depicted the victim's vagina prior to examination. The second photograph depicted the victim's vagina with the labia opened. Ms. Keough opined that the victim's injuries were "consistent with a blunt penetrating injury." During the examination, Ms. Keough collected DNA samples from the victim's cheek, her vulva, and her vagina.
As a result of the information that S.M. supplied to officers on the day of the incident, Wayne Tyrone Sellers, [the Petitioner], was identified as a suspect. Lieutenant Oliver attempted to locate S.M. in order to present her with a photographic lineup of potential suspects. He eventually located her at the hospital, where she had been readmitted for five days as a result of losing two pints of blood from her injuries.
When shown the photographic lineup two days after the incident, S.M. was unable to identify [the Petitioner]. She explained that her "memory . . . went kind of fast and [she] couldn't remember too well." She admitted that she saw [the Petitioner] "face to face" but "just blocked [it] out of my mind." Several days later she recognized [the Petitioner] when "[the Petitioner] came back into that building [where she lived]" and the victim saw him. She immediately called the police. S.M. admitted that [the Petitioner] was the only person in the courtroom, beside the attorneys and the police officers, when she identified him at trial.
[The Petitioner] was brought in for questioning. He was "cooperative" and agreed to provide a DNA sample. He denied all of the allegations.
Tennessee Bureau of Investigation Special Agent Lawrence James testified as an expert in the area of DNA analysis and serology. Having tested the samples from the victim and [the Petitioner], Special Agent James opined that "the profile indicated there was more than one person's DNA present in that profile and the profile that I got was consistent with the mixture from [the victim] and [the Petitioner]." Special Agent James explained that the probability that an unrelated individual would be included as a contributor to this DNA mixture was approximately one in 17.3 million based on the number of individuals from the African-American population. He explained that any time there was a "mixture" of DNA in a sample, the probability is increased but that, in his opinion, the DNA of [the Petitioner] was present in the sample.
[The Petitioner] presented no proof. After deliberating, the jury found [the Petitioner] guilty of aggravated rape as charged in the indictment.

State v. Wayne Sellers, No. W2013-02771-CCA-R3-CD, 2014 WL 6491070, at *1-3 (Tenn. Crim. App. Nov. 20, 2014), perm. app. denied (Tenn. Apr. 14, 2015) (footnotes omitted). This court affirmed the Petitioner's judgment of conviction, and the Tennessee Supreme Court denied further review. Id.

         Post-Conviction Proceedings

         Thereafter, the Petitioner filed a timely pro se petition for post-conviction relief. Following the appointment of counsel, the Petitioner filed an amended post-conviction petition.

         At an evidentiary hearing, the Petitioner testified that he and trial counsel discussed "[t]o a certain degree" what evidence the defense would present at trial. The Petitioner testified that the defense was to be based on "what was strong in [his] case, " including a lack of identification, errors in the police reports, and issues relating to the DNA evidence. The Petitioner acknowledged that the jury heard that the victim could not pick him out of a photographic lineup. However, he ...


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