Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 15, 2017.
from the Criminal Court for Knox County No. 107442 Steven
Wayne Sword, Judge
Petitioner, Terrence McDonald, was convicted of four counts
of aggravated rape and one count of reckless endangerment. He
appeals the post-conviction court's denial of relief and
argues that trial counsel provided ineffective assistance of
counsel. Upon our review, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court for Knox County Affirmed
M. Jeffress, Knoxville, Tennessee, for the appellant,
Terrence Lamont McDonald.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Charme P.
Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney, for the appellee, State of
Camille R. MCMULLEN, J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J., and Robert L. Holloway,
Jr., J., joined.
CAMILLE R. McMULLEN, JUDGE.
Petitioner was indicted by the Knox County Grand Jury for
four counts of aggravated rape and one count of aggravated
assault. The charges stemmed from the Petitioner's
violent sexual assault of his wife, the victim. This court
summarized the facts underlying the Petitioner's charges
in its opinion affirming the Petitioner's convictions and
sentence on direct appeal. See State v. Terrence Lamont
McDonald, No. E2013-02524-CCA-R3-CD, 2015 WL 154251
(Tenn. Crim. App. Jan. 13, 2015), perm. app. denied
(Tenn. May 14, 2015). In short, on the morning of January 22,
2012, after an argument between the Petitioner and the
victim, the Petitioner held a knife to the victim's
throat and threatened to "cut [her] voice box out."
Later that day, after another argument, the Petitioner
"grabbed [the victim's] arm and pulled her . . .
down the stairs." The Petitioner then forced the victim
on the couch and demanded sex, which the victim refused. The
victim testified that the Petitioner "punched [her] in
the chest" and raped her both vaginally and anally. The
victim also testified that the Petitioner "struck her in
the back of the head" during the sexual assault and left
bruises and marks on the victim's body. The victim's
testimony was corroborated by a forensic nurse examiner who
confirmed the victim's injuries were consistent with the
described assault and rapes.
the Petitioner was arrested, he provided a statement to
police admitting to sexually penetrating the victim both
vaginally and anally, on the evening of January 22, 2012, and
stated that he "may have hurt [the victim]." The
Petitioner also acknowledged that he and the victim had been
arguing earlier in the day, however, the Petitioner claimed
that the sexual acts had been consensual. The jury returned a
guilty verdict of the lesser included offense of reckless
endangerment but found the Petitioner guilty of the
aggravated rapes. The trial court imposed an effective
sentence of twenty-five years' imprisonment.
February 29, 2016, the Petitioner filed a pro se petition for
post-conviction relief alleging that his trial counsel
provided ineffective assistance of counsel. On March 11,
2016, the post-conviction court appointed post-conviction
counsel, who later filed a supplemental petition for
post-conviction hearing, the Petitioner testified that trial
counsel failed to investigate and present an alibi defense.
Specifically, the Petitioner claimed that he met with his
brother and that he was at a McDonald's using the
wireless internet on the day of the offenses. The Petitioner
asserted that this evidence would show he was not at his
apartment at the time his wife claimed the knife incident
occurred. The Petitioner also claimed that trial counsel
failed to visit the Petitioner's apartment where the
offenses occurred and that, if counsel had "seen the
scenery, the couch, the position where everything was, "
it would prove that the victim's testimony about the
sexual assaults was "improbable." Likewise, the
Petitioner said that trial counsel failed to interview his
neighbors, who would have heard the victim screaming because
the walls of his apartment were "very thin." The
Petitioner also asserted that trial counsel said he
"could not ask probing questions" of the victim
because she had recently lost her leg.
counsel testified that the Petitioner's defense was that
his wife was lying about the knife incident and that the
sexual acts were consensual. Trial counsel described the
Petitioner's account of the knife incident, which
occurred during an argument between the Petitioner and the
victim. Counsel said that the Petitioner "had an
ornamental dagger in a sheath. He unsheathed it. He
didn't hold it to her throat or anything. He just held it
out and said, 'You want me to cut your voice box, '
or something like that." Trial counsel said he did not
want the Petitioner to testify about the knife incident
because "if he were to say how it happened, that's
still potentially an aggravated assault." Because the
Petitioner admitted that the assault took place, the only
issue trial counsel noted was that the Petitioner believed
the incident occurred in the afternoon and the victim
testified that it occurred in the morning.
counsel confirmed that he did not visit the Petitioner's
apartment. He was not sure who lived in the apartment or if
the apartment was in the same condition with the same
furnishings by the time counsel was assigned the
Petitioner's case. Trial counsel was aware that the
Petitioner believed "there was an issue about the shape
of the couch, the nature of the couch, and had [the victim]
been bent over the couch in a certain way, he wouldn't
have been able to penetrate her." Trial counsel also
confirmed that he did not interview any of the
Petitioner's neighbors because the Petitioner had already
admitted that the sexual acts occurred. Regarding the
victim's cross-examination, trial counsel said that he
"wouldn't be aggressive to a witness anyway in a
case like this, " especially considering that the victim