Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 20, 2019
from the Criminal Court for Davidson County No. 2016-B-714 J.
Randall Wyatt, Jr., Judge 
defendant, Terry D. Winters, was indicted for and convicted
of aggravated kidnapping, aggravated assault, and domestic
assault for which he received an effective twenty-year
sentence. He now appeals the denial of his motion for new
trial wherein he alleged he received ineffective assistance
of counsel and challenged a statement made during the
State's closing argument. Following our review, we affirm
the denial of the motion.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Michael L. Freeman, Nashville, Tennessee, for the appellant,
Terry Dewayne Winters.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Assistant Attorney General; Glenn Funk,
District Attorney General; and Amy Hunter and Jeffrey
Jackson, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
ROSS DYER, JUDGE
and Procedural History
case arises from an incident occurring between the defendant
and the victim at a motel room in Davidson County, Tennessee.
For his actions, the defendant was charged with aggravated
kidnapping, aggravated assault, and domestic assault. Tenn.
Code Ann. §§ 39-13-102; -111; -304. After initial
counsel withdrew and the trial court appointed subsequent
counsel, the defendant proceeded to trial on March 6, 2017.
The State presented the following facts for the jury's
Johnson, the defendant's fiancée and victim,
testified she had been in an "on and off"
relationship with the defendant for approximately eight or
nine years. In 2016, the victim had recently been diagnosed
with COPD and required oxygen. She did not live with the
defendant but saw him one to three times per week typically
at a friend's or his family's house or a motel. The
victim also served as the defendant's means of
transportation, as he did not have a car.
February 2, 2016, the defendant bought new tires for the
victim's car before they rented a motel room. After
spending time together in the room, the victim went to sleep
around 10:00 or 11:00 p.m. while the defendant watched
television. Hours later, at approximately 2:30 or 3:00 a.m.,
the defendant tried to wake the victim in order to have sex.
The victim ignored his advances, but the defendant got
"louder and louder." The defendant began to insult
the victim so she "jumped up out of the bed and got
[her] purse" in an effort to leave the room. The
defendant "got in front of the door" and told the
victim she "was going to stay there . . . or take him
home." The victim, however, did not want to drive the
defendant home because she was upset and "just wanted to
go home [herself]." As she reached for the doorknob, the
defendant began "wrestling" with her. The two
pushed each other and "ended up on the ground" for
approximately two or three minutes, three separate times.
Each time they fell to the ground, the defendant landed on
top of the victim and she was unable to move. The defendant
would eventually help her up, and the victim would try to
exit the room which "just started it all over
the episode, the victim was scared the defendant
"wasn't going to let [her] out" of the room, so
she began "yelling for help, " "banging on
walls, " and "screaming trying to get out." At
one point, the defendant "put his hand over [the
victim's] nose and  mouth, " causing her to lose
her breath. The defendant stated, "I'm going to take
you out" and that he "didn't care about [the
victim's] air." The victim was unable to breathe and
told the defendant she "needed to go outside to get some
air." At trial, the victim explained she did not believe
the defendant intended to obstruct her airway but admitted he
did hinder her ability to breathe throughout the struggle,
and he knew she suffered from a lung condition that caused
her to "lose [her] breath real easy."
conclusion of the struggle, which lasted approximately one
and a half hours, the victim was "still screaming."
She reached for the telephone in the room, but the defendant
blocked her and told her to "[s]it down until I get my
clothes on." The victim complied and waited for the
defendant to dress as he expected her to drive him home. She
still did not want to drive the defendant home, explaining
"at that point [I] didn't want to be in that
predicament again, so . . . when he finally opened the door I
pushed my alarm on my car, that is the only thing I could
think to do." The victim's car was parked in front
of the motel room, and as the alarm went off, she exited the
room and began "banging on people's doors and
windows." The defendant followed behind the victim, but
he did not restrain her. The victim saw a car belonging to
her friend, Lashanda Bloodworth, and began yelling
"Randy, " Ms. Bloodworth's fiancé's
name. Ms. Bloodworth and her fiancé heard the victim
and let her in their room where the victim called 9-1-1 at
approximately 4:00 or 4:30 a.m. The victim was
"terrified" and "just afraid [the defendant]
was going to get in and do more, you know, he was going to
get, he was going to come get me." A recording of the
9-1-1 call was played for the jury. During the call, the
victim stated she feared the defendant was going to smother
her to death and kill her. At trial, the victim again
explained that at the time of the incident she was scared and
was unsure what the defendant might do to her.
Blake Giles of the Metropolitan Nashville Police Department
arrived and photographed the victim's injuries. The next
day, the victim went to the hospital, and her cousin took
photographs of additional bruises that "popped up"
overnight. The photographs depicting the victim's
injuries were entered into evidence and showed bruising to
her cheek, neck, face, breasts, arms, forearm, right wrist,
and underneath her arms. One photograph also showed a cut on
the victim's cheek and another showed the defendant's
fingerprint under her left ear.
victim explained she still cared for the defendant and spoke
to him on a regular basis including the night before trial.
In communicating with the defendant prior to trial, the
victim acknowledged he "sometimes" encouraged her
not to cooperate with the police or the district
attorney's office. She admitted she did not want to
proceed with the case against the defendant, noting they
"both want him to get out."
cross-examination, the victim expressed her belief that she
did not think the defendant was trying to keep her in the
motel room against her will. She stated the defendant might
have just left the room "if [she] would have just sat
down and hushed, " but again noted at the time she was
"terrified." The victim also stated the defendant
had previously been diagnosed with bipolar disorder for which
he was on medication and was to avoid alcohol. According to
the victim, the defendant "was drinking" prior to
the incident and had not taken his medication. The victim
stated, "[w]hen [the defendant] is drinking he just goes
berserk and he just I don't think understands what he is
doing hisself (sic)." The victim did not believe the
defendant kidnapped her on February 2, 2016. She clarified
some of her bruises resulted from the defendant trying to
stop her from falling and explained the defendant covered her
mouth and nose during the struggle to prevent her from
screaming. At the conclusion of her testimony, the victim
admitted she still feared the defendant.
Giles responded to the motel after the victim and an
anonymous caller dialed 9-1-1. He spoke with the victim and
arrested the defendant at the scene. Officer Giles described
the victim as "[v]ery upset, very distraught and
emotionally kind of just anxious, nervous, scared." He
completed a domestic violence supplemental form which
included a statement from the victim and documented her
physical and emotional condition. A copy of the form was
entered into evidence and detailed injuries to the
victim's arms and chest, including bruises, scratches,
and cuts. Additional photographs of the victim's injuries
were also entered into evidence.
victim's friend, Lashanda Bloodworth, testified she and
her fiancé were staying at the same motel as the
victim and the defendant on February 2, 2016. At
approximately 4:00 a.m., Ms. Bloodworth woke up to a car
alarm and the victim banging on doors and yelling her name.
She assumed the victim saw her car parked in front of the
motel and called her name as a result. Ms. Bloodworth and her
fiancé allowed the victim to enter their room where
the victim called 9-1-1. Ms. Bloodworth's fiancé
stood outside their room until the police arrived. Inside the
room, the victim was "upset, crying, [and]
nervous." She told Ms. Bloodworth the defendant
"had hit her" and the victim "had bruising all
over her chest area."
the State rested its case, the trial court denied the
defendant's motion for judgment of acquittal. The
defendant waived his right to testify and did not put on any
additional proof. The jury convicted the defendant as charged
on all counts, and the trial court immediately proceeded with
a bifurcated hearing on count 3 in order to determine the
number of prior domestic assault offenses the defendant had
committed. During the hearing, the defendant pled guilty to
domestic assault, third offense. At a subsequent sentencing
hearing, the trial court imposed concurrent sentences of 20
years for aggravated kidnapping, 10 years for aggravated
assault, and 90 days for domestic assault, third offense.
Motion for New Trial Hearing
5, 2017, trial counsel filed a premature notice of appeal
which was stayed by this Court. By June 16, 2017, new counsel
began representing the defendant and a timely motion for new
trial was filed and later amended. In the amended motion, the
defendant alleged numerous reasons as to why he received
ineffective assistance of counsel at trial, including that
trial counsel failed to: prepare him for trial; "put
forth any defense or attempt to mitigate any evidence brought
by the [S]tate;" "properly interview any
witnesses;" request a bench trial; pursue a "mental
health" defense by not investigating or "presenting
evidence of [the defendant's] mental deficiencies at
trial;" "request to have the defendant examined in
order to determine if he was mentally able to appreciate the
nature of the charges against him and whether the defendant
was able to assist in his defense either at trial or leading
up to trial;" "explore other possible
defenses;" request funds for and obtain expert
witnesses; cross-examine Ms. Bloodworth; "investigate
[the] [d]efendant's drug and alcohol history;"
interview the defendant's brother; "put forth expert
testimony as to the [d]efendant's state of mind when he
consumed alcohol;" "put forth a defense of
intoxication as to the charge of aggravated kidnapping;"
request a jury instruction "providing that kidnapping is
a specific intent crime;" "offer any assistance to
the [d]efendant at all, " barring two objections.
the defendant also challenged a statement made during the
State's closing argument. According to the ...