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Guinn v. State

Court of Criminal Appeals of Tennessee, Jackson

April 5, 2018

WENDELL GUINN
v.
STATE OF TENNESSEE

          Session July 11, 2017

          Appeal from the Criminal Court for Shelby County No. 12-05110 J. Robert Carter, Jr., Judge

         The 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.[1] Following 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 Affirmed

          Valentine Darker, Memphis, Tennessee, for the appellant, Wendell Guinn.

          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.

          D. 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.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         I. Procedural History

         In 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.

         This 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 behalf.

         The 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.

         II. Trial Facts

         The 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. Id.

         According 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).

         The 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 "'tussling'" and "'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 grandmamma.'" Id.

         The 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.

         The 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.

         At 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.

         The 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).

         III. ...


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