Session July 11, 2017
from the Criminal Court for Shelby County No. 12-05110 J.
Robert Carter, Jr., Judge
Petitioner, Wendell Guinn, appeals from the Shelby County
Criminal Court's denial of his petition for
post-conviction relief. The Petitioner contends (1) that his
constitutional rights were violated by prosecutorial
misconduct during the jury voir dire and the State's
closing arguments; (2) that the trial court committed several
errors in the jury instructions; and (3) that he received
ineffective assistance from his trial and appellate
counsel. Following our review, we affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Valentine Darker, Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Carrie Shelton Bush
and Leslie Fouche, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen, J., joined. Norma McGee Ogle, J.,
concurring in results only.
KELLY THOMAS, JR., JUDGE
2012, the Petitioner was indicted on charges of aggravated
kidnapping, rape, aggravated burglary, and domestic assault.
State v. Wendell Guinn, No. W2013-01436-CCA-R3-CD,
2014 WL 3513000, at *1 (Tenn. Crim. App. July 15, 2014),
perm. app. denied (Tenn. Dec. 18, 2014). The
Petitioner was tried by a jury in February 2013. The State
dismissed the domestic assault charge during the trial, and
the jury acquitted the Petitioner of the aggravated
kidnapping and aggravated burglary charges. Id. The
jury convicted the Petitioner of rape, and the trial court
imposed a nine-year sentence. Id.
court affirmed the Petitioner's conviction on direct
appeal. Guinn, 2014 WL 351300, at *1. On December
18, 2014, our supreme court declined to review that decision.
On December 18, 2015, the Petitioner, through counsel, filed
a timely petition for post-conviction relief. An amended
petition was subsequently filed on the Petitioner's
petitions alleged that the trial court erred in its
instruction on the applicable mental element for the rape
charge, in its instruction on the aggravated burglary charge,
and in issuing a supplemental jury instruction. The petitions
also alleged that the prosecutor improperly commented on his
decision not to testify at trial. Finally, the petitions
alleged trial counsel was ineffective for failing to properly
investigate the facts of the case and for failing to properly
address the jury instruction and prosecutorial misconduct
issues. Following an evidentiary hearing, the post-conviction
court entered a written order denying the petition on
September 23, 2016.
victim testified at trial that she had been involved with the
Petitioner in a lengthy extramarital affair. Guinn,
2014 WL 351300, at *2. The victim further testified that she
had "'tried to end'" the relationship
because the Petitioner would not leave his wife. Id.
According to the victim, the Petitioner repeatedly called her
on the morning of March 19, 2012, to ask her to help him post
flyers about some missing property. Id. The victim
testified that she did not initiate the phone calls and that
she never invited the Petitioner to her house that morning.
to the victim, the Petitioner then showed up in her driveway
and aggressively came up to her "'with his hands
towards [her].'" Guinn, 2014 WL 351300, at
*2 (alteration in original). The victim told the Petitioner
that she did not "'have time to wrestle and tussle
with'" him, and the Petitioner responded that the
victim was "going to take care of this first."
Id. The victim took this to mean that the Petitioner
wanted her "'to take care of [his] sexual
needs.'" Id. (alteration in original).
victim testified that the Petitioner then "'backed
[her] up into'" a bedroom inside the house and
"'locked the door.'" Guinn, 2014
WL 351300, at *2-3 (alteration in original). Once in the
bedroom, the victim and the Petitioner began
"'pushing'" each other. Id. at *3.
The Petitioner told the victim that she was going to give him
"'this p---y today.'" Id. The
victim testified that she told the Petitioner that "it
was 'not going to happen'" because her
granddaughter was in the house. Id. According to the
victim, the Petitioner responded that he did not care because
all of her grandchildren "knew he was 'f--king their
victim testified that the Petitioner unlocked the door to the
bedroom so she could talk to her granddaughter.
Guinn, 2014 WL 351300, at *3. The victim and her
granddaughter then unsuccessfully attempted to "'get
rid of'" the Petitioner. Id. When the
victim returned to the bedroom, the Petitioner
"'slammed the door and locked it'" telling
the victim that she was "'going to give [him] this
p---y today.'" Id. The Petitioner then
"'started wrestling'" with the victim and
trying to take off her clothes. Id. The Petitioner
was able to remove the victim's underwear and penetrated
her vagina with his fingers despite the victim's telling
him not to do so. Id.
victim testified that while the Petitioner attacked her, she
screamed for her granddaughter to call the police.
Guinn, 2014 WL 351300, at *3. A short time later,
police officers arrived at the victim's house and
arrested the Petitioner. Id. at *1, 4. At trial, the
officers described the victim as appearing "'kind of
disheveled'" and that she "seemed distraught
and upset." Id. at *1. The officers found the
Petitioner's "coat, underwear, and some flyers with
the [Petitioner's] name and phone number on the floor of
the bedroom." Id.
trial, the victim's granddaughter corroborated the
victim's testimony about attempting to get the Petitioner
to leave and the victim's screaming. Guinn, 2014
WL 351300, at *1-2. The victim's granddaughter testified
that "it was unusual for the victim to yell like that,
" that the victim "sounded scared, " and that
the victim told her that the Petitioner was "'trying
to rape [her].'" Id. at *2.
Petitioner gave a statement to the police that was introduced
into evidence at trial. Guinn, 2014 WL 351300, at
*4. In the statement, the Petitioner admitted to penetrating
the victim's vagina with his fingers. Id. The
Petitioner also stated that he went to the victim's house
"to 'get her to help [him] distribute some
flyers.'" Id. (alteration in original).
However, the Petitioner claimed that the victim had consented
to the digital penetration. Id. The Petitioner also
claimed that the victim had "'called out for [her
granddaughter] previously during sex'" and that the
victim was joking when she told her granddaughter to call the
police. Id. (alteration in the original).