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McDonald v. State

Court of Criminal Appeals of Tennessee, Knoxville

September 29, 2017

TERRENCE MCDONALD
v.
STATE OF TENNESSEE

          Assigned on Briefs August 15, 2017.

         Appeal from the Criminal Court for Knox County No. 107442 Steven Wayne Sword, Judge

         The 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 post-conviction court.

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

          Leslie 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 Tennessee.

          Camille R. MCMULLEN, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         The 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.

         After 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.

         On 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 relief.

         At the 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.

         Trial 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.

         Trial 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 was ...


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