Kenneth Lyle Davis v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 1, 2012

KENNETH LYLE DAVIS v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Madison County
No. C-10-114 Walter C. Kurtz, Senior Judge

No. W2011-02049-CCA-R3-PC - Filed August 2, 2012

A Madison County jury convicted the Petitioner of possession of methamphetamine with
intent to sell and/or deliver, possession of unlawful drug paraphernalia, reckless driving, and
driving on a canceled, suspended, or revoked license. The trial court sentenced him to an
effective ten-year sentence. This Court affirmed the Petitioner’s convictions and sentences
on appeal. State v. Kenneth L. Davis, No W2008-00226-CCA-R3-CD, 2009 WL 160927,
at *1 (Tenn. Crim. App., at Jackson, Jan. 23, 2009), perm. app. denied (Tenn. June 15, 2009).
The Petitioner filed a petition for post-conviction relief in which he alleged that he had
received the ineffective assistance of counsel, which the post-conviction court dismissed
after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when
it denied his request to amend his petition a third time and when it dismissed his petition.
After a thorough review of the record and applicable authorities, we conclude there exists no
error in the post-conviction court’s judgment. We, therefore, affirm the judgment of the
post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Kenneth Davis, Milan, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; James G. Woodall, District Attorney General, and Al Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION
 I. Facts
A. Trial

This case arises from a traffic stop, and subsequent search, of the Petitioner that
resulted in his arrest for possession of methamphetamine and drug paraphernalia. In our
opinion on the Petitioner’s direct appeal, we summarized the facts proven at his trial as
follows:

On January 21, 2007, the [Petitioner] was stopped by an officer with the
Madison County Sheriff’s Department. The vehicle was searched, and illegal
drugs and paraphernalia were discovered inside. Subsequently, the [Petitioner]
was charged with possession of methamphetamine with the intent to sell;
possession of methamphetamine with the intent to deliver; possession of drug
paraphernalia; reckless driving; and driving on a canceled, suspended, or
revoked license. . . . Thereafter, the [Petitioner] filed a motion to suppress the
evidence, claiming that he did not voluntarily consent to the search of his
automobile.

A hearing on the motion to suppress was conducted on September 20,
2007. Officer Shane Barnes of the Madison County Sheriff’s Department
testified that, on January 21, 2007, at approximately 6:45 p.m., he was sitting
at a red light at the intersection of North Parkway and Highway 70, located in
Madison County. It was dark outside, and “medium traffic conditions were
present in the area. He observed a Ford Ranger pickup truck make a turn at [a]
high rate of speed “onto Parkway going westbound from Highway 70.”

According to Officer Barnes, the turn was “real noticeable because of
the speed and the fact that [the Petitioner] went over both lanes of traffic into
the turn lane, the opposing lane of traffic.” He relayed that the [Petitioner’s]
vehicle “was speeding in an unsafe condition to make that turn in a proper
way.” Officer Barnes opined that the [Petitioner] was traveling at forty or fifty
miles per hour when he made the turn. Moreover, he described the
[Petitioner’s] driving as erratic, aggressive, and reckless.

Officer Barnes initiated a traffic stop. Officer Barnes explained to the
[Petitioner] that he was checking to see if the [Petitioner] “was impaired or the
reason why he made a reckless turn.” The [Petitioner] was very cooperative,
and Officer Barnes did not smell any alcohol on the [Petitioner’s] person. The
[Petitioner] had a female passenger, Marilyn Riggs, in the vehicle.

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 Officer Barnes requested the [Petitioner’s] driver’s license. Following
a check of the license, Officer Barnes learned that the [Petitioner’s] license
was suspended due to the Defendant’s failure to pay child support. Rather
than arresting the [Petitioner], Officer Barnes began issuing a citation and
intended on letting the [Petitioner] go. Officer Barnes learned that Ms. Riggs
did not have a valid license either. Unwilling to let either individual drive
away in the truck, Officer Barnes let the [Petitioner] use his cell phone to have
someone come pick them up.

As Officer Barnes “was finishing up the ticket[,]” he asked the
[Petitioner] for consent to search the automobile. According to [O]fficer
Barnes, the [Petitioner] responded, “Sure. Go ahead. No problem.” Officer
Barnes waited for another officer to arrive on the scene, which did not take
“very long[,]” and he then began searching the vehicle.

Officer Barnes went to the passenger side of the truck, opened the door,
and started looking around. He observed a “Game Boy type bag sitting in the
middle” between the passenger and the driver. “It was sitting right in the
center console.” According to Officer Barnes, both individuals would have
had access to the bag. Officer Barnes looked inside the bag and discovered
approximately 15.9 grams of methamphetamine, six clear glass pipes, one red
plastic pipe, a pair of scissors, a white spoon, a small torch, multiple plastic
bags of different sizes, a small composition book containing names and home
numbers, and a small metal container. When asked the significance of the
items found inside the bag, Officer Barnes stated, based on his experience, that
the drugs were for resale.

After discovery of the drugs and paraphernalia, both the [Petitioner] and
Ms. Riggs were placed under arrest, and the Metro Narcotics Division was
contacted. Neither person claimed ownership of the bag.

On cross-examination, Officer Barnes acknowledged that he did not
attempt to get written consent from the [Petitioner] before searching the
vehicle. He did not do so because the car was equipped with a video system
that recorded traffic stops. However, the audio was not working when Officer
Barnes stopped the [Petitioner], so there was just a video with no sound.

Officer Barnes also stated that he found a small metal vial in Ms. Riggs’
possession.

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 The [Petitioner] testified that Officer Barnes did not request his consent
to search his vehicle. Moreover, the [Petitioner] was unaware that his license
was suspended. According to the Defendant, Officer Barnes found a metal
cylinder under the passenger seat, which “looked like methamphetamine.”
Officer Barnes asked Ms. Riggs if she was going to claim the cylinder, to
which she said no.

On cross-examination, the [Petitioner] acknowledged that he owned the
vehicle. He denied that the bag belonged to him.

At the conclusion of the suppression hearing, the trial court determined
that the [Petitioner] voluntarily consented to the search of his truck. Thus, the
evidence was admissible against the [Petitioner], and he proceeded to trial.

Officer Barnes provided a similar account of the events at trial. At trial,
Officer Barnes further opined that the composition book was a “type of thing
commonly used by a drug dealer to keep up with his customers.” Officer
Barnes also testified that the metal container was found underneath the
passenger seat and, in his opinion, appeared to contain methamphetamine. He
stated that he observed the container “rolling” when Ms. Riggs exited the
vehicle. Officer Barnes further noted that the pill bottle was discovered inside
the bag where the drugs were found. Inside the pill bottle was a necklace with
a heart charm on it.

The videotape was shown to the jury and admitted as an exhibit.
Moreover, testing by the Tennessee Bureau of Investigation confirmed that the
two bags discovered during the search of the [Petitioner’s] truck contained
methamphetamine; 13.8 grams in one bag, and 1.5 grams in the other. No
finger print analysis was conducted.

The [Petitioner] did not testify at trial or present any evidence in his
defense.

Following the conclusion of proof, the jury convicted the [Petitioner]
guilty as charged.

B. Post-Conviction

On April 13, 2010, the Petitioner filed a timely pro se petition for post-conviction, in
which he alleged that he had received the ineffective assistance of counsel. On June 3, 2010,

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the Petitioner filed his first amended petition for post-conviction relief. On March 1, 2011,
the Petitioner filed a second amended petition for post-conviction relief. On June 4, 2011,
the trial court entered a scheduling order in which it stated that there would be no further
amendments to the post-conviction petition. On September 2, 2011, the Petitioner requested
permission to file a third amended petition for post-conviction relief, attempting to add
claims that the State violated his due process rights by failing to present exculpatory evidence
to the grand jury. The post-conviction court denied his request, stating that the amended
petition was untimely filed, that it did not state a cognizable post-conviction claim, and that
he had already made a legally similar claim that was properly part of his previously amended
post-conviction petition.

At the hearing on the Petitioner’s petition, the following evidence relevant to this
appeal was presented: The Petitioner, who represented himself, testified that his petition
alleged that his trial Counsel was ineffective and that the State withheld exculpatory
evidence. The Petitioner testified that Counsel was also ineffective for failing to investigate,
interview, and present either Marilyn Riggs or her criminal record. He said that Counsel
properly filed a motion for discovery, but the State, in their response, failed to provide him
a copy of Riggs’s criminal history. At the time of his arrest, the Petitioner said that Riggs
was on bond in an unrelated case for possessing methamphetamine. The Petitioner testified
that Counsel should have presented this evidence to the jury.

The Petitioner said Counsel was ineffective for failing to request that an independent
expert test and examine the drugs involved in this case. He said that the State’s expert
explained that her test involved adding a chemical to the substance. If the substance turned
from orange to brown, then the substances was confirmed to be drugs. The Petitioner said
the State’s expert also testified that one of the bags only turned a slight “faint orange.” The
Petitioner took this to mean that the substance was not drugs at all. He said Counsel should
have hired an expert to examine the substance in the bags confiscated by police.

The Petitioner contended that the State withheld exculpatory evidence. He said that
he requested the maintenance reports on the arresting officer’s video equipment. The
Petitioner recounted that the officer testified that the audio was not working on his video
equipment. The Petitioner stated that, at trial, Officer Barnes testified that he had gotten the
audio fixed on his video camera and that the problem was a little transmitter box that was
replaced. In fact, according to the Petitioner, a letter from Captain Heavner, which the
Petitioner obtained after his trial, showed that the captain had spoken to Officer Barnes and
Officer Barnes stated that there was no repair needed. Officer Barnes told Captain Heavner
that he replaced the unit’s 9 volt battery and that replacing the battery solved the problem.

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 The Petitioner testified Counsel was ineffective for failing to investigate the traffic
stop, failing to investigate the videotape mechanics, and failing to discover the maintenance
records of the repairs done on Officer Barnes’s video and audio camera.

The Petitioner said that Counsel was ineffective for failing to request that the trial
court offer the jury an instruction on the lesser-included offense of simple possession.
Further, the Petitioner testified, the cumulative effect of Counsel’s errors rendered Counsel’s
representation ineffective.

During cross-examination, the Petitioner testified that Counsel should have done a
more thorough investigation of the video equipment. He said that he had maintained
throughout the course of these proceedings that he never gave Officer Barnes consent to
search his vehicle. The Petitioner conceded that Counsel filed a motion to suppress to deal
with this issue. The Petitioner agreed that the video was shown to the jury at trial and that
Officer Barnes testified about what happened on the video. The Petitioner said, however,
that the video had been “altered.” He said Officer Barnes was unable to produce the video
tape of his arrest before the suppression hearing and did not produce it until shortly before
his trial. The Petitioner believed that the videotape was altered during the time it was
missing.

The Petitioner testified that the video was altered again before it was given to him for
the post-conviction proceeding. He said that, on the video he was provided before the post-
conviction hearing, he was unable to see things that he recalled from the video shown at his
trial. He asked for the chain of custody records from the clerk’s office. He noted that the
clerk at his trial did not turn in the video immediately after the trial. He said the video was
checked out for exactly one year. In order to prove that the video had been altered, the
Petitioner said he asked Counsel for the copy of the video contained in Counsel’s file.
Counsel told him that he had not retained a copy but that he had turned his copy over to the
appellate court. The Petitioner testified he knew this to be untrue.

The Petitioner agreed that Riggs never testified at his trial and that the trial court ruled
that her criminal history was not relevant. He said that her criminal record, however, should
have been admitted to bolster his defense that the drugs belonged to Riggs and not to himself.
He noted that Riggs was, at one time, his co-defendant. The Petitioner said that Counsel
requested Riggs’s criminal record, but he never filed a motion to compel when he did not
receive it. He also never went to the Sheriff’s Department to request information about any
maintenance done on Officer Barnes’s vehicle. The Petitioner conceded that there was no
maintenance record on Officer Barnes’s vehicle but said that he had received a letter stating
that Officer Barnes said that no maintenance was necessary.

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 The Petitioner contended that Counsel failed to investigate the district attorney’s
“improper influence” on the grand jury to “no true bill . . . Riggs.” The evidence, he said,
pointed more toward Riggs than to himself. He conceded that this was his defense at trial
but said that the jury never heard that Riggs was out on bond for similar offenses when they
were arrested in connection with this case.

Counsel testified that he represented the Petitioner when the Petitioner was charged
with possession of methamphetamine. Counsel said that Riggs was on bond for a
methamphetamine possession charge when she and the Petitioner were arrested for
possessing methamphetamine. Counsel testified that he and the Petitioner discussed this, and
Counsel requested her criminal record. Counsel said, however, he did not think the criminal
record would have been admissible because it was not relevant to whether the Petitioner was
guilty in this case.

Counsel agreed that in discovery they had received a laboratory report about the drugs
upon which a note was written from the assistant district attorney to someone named “Betty.”
The handwritten note read, “Betty, we need to no bill Marilyn Riggs.” Counsel said that the
assistant district attorney told Counsel that they believed that the Petitioner was the one who
should have been charged with methamphetamine possession and not Riggs. Counsel
reminded the Petitioner that Counsel had no control over this decision. Counsel argued at
the Petitioner’s trial that Riggs was not at the trial, that she had not been charged with the
offense, and that she was “suspicious.” Counsel said he sent an investigator to speak to
Riggs, who the investigator found uncooperative and unwilling to provide information.
Counsel did not subpoena Riggs to testify at the Petitioner’s trial based upon the
investigator’s interview with her. Counsel agreed that his investigator never asked Riggs if
Officer Barnes requested consent to search the vehicle.

Counsel said he did not interview or subpoena Steve Dameron, who was the
Petitioner’s boss. Counsel agreed that, before Officer Barnes found the methamphetamine,
Officer Barnes had allowed the Petitioner to use his phone to call for a ride home. The
Petitioner called Dameron, who arrived at the scene. Counsel disagreed that Dameron could
have offered testimony rebutting Officer Barnes’s testimony about where Officer Barnes
parked during the stop. Counsel expressed his belief that the video tape of the stop was not
altered and that the video tape showed where the officer had parked. Counsel said that
Dameron’s testimony would not have been relevant to whether the Petitioner was guilty as
charged.

Counsel testified that he did not request an independent analysis of the drugs in this
case. He agreed that the State’s expert testified that there were two separate bags of
methamphetamine found, one weighing 13.8 grams and the other weighing 1.5 grams.

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Counsel agreed that the State’s expert said that one of the bags of methamphetamine only
slightly changed color to orange. Counsel recalled that he questioned the expert about this,
and she maintained that the substance tested was methamphetamine. Counsel was unsure
whether the expert provided a “quantity amount” of the drugs, which may have been relevant
to the level of felony for which the Petitioner was charged.

Counsel said he “could have” requested that the trial court instruct the jury on the
crime of simple possession. He explained that he did not do so because the Petitioner’s
defense was that the drugs were not his but that they belonged to Riggs.

Counsel testified he did not, as part of this case, investigate whether the Sheriff’s
Department kept maintenance records on their vehicles. Counsel opined that Officer Barnes
had not intentionally removed the audio from the videotape. Counsel said that he, therefore,
did not think an independent analysis of the videotape was necessary.

During cross-examination, Counsel testified that, at the time he represented the
Petitioner, he was aware that the Petitioner had filed a complaint against him in the past. He
said that he and the Petitioner discussed whether this presented a conflict, but the Petitioner
never filed a request to have the Public Defender’s office recuse itself. Counsel said he also
did not believe that the Petitioner asked him to withdraw as counsel. The idea that Counsel
should withdraw did not “c[o]me up” until the appellate stage. Counsel said that, before
filing his appeal, the Petitioner asked Counsel to withdraw.

Counsel testified that he investigated this case in a manner similar to how he
investigates all cases. He received pretrial discovery and talked with the Petitioner about
possible defenses and potential witnesses. Counsel said he received a copy of the videotape
recording of the traffic stop. Officer Barnes testified at the Petitioner’s probation revocation
hearing, and Counsel received a transcript of that testimony. Counsel said he had his
investigator track down and speak to Riggs, who was not helpful.

Counsel recalled that the Petitioner expressed his belief that the videotape had been
altered. Counsel said that, when he reviewed the videotape, there did not appear to be any
alterations to or tampering with the videotape.

The Petitioner then called Anthony Heavner, a captain with the Madison County
Sheriff’s Department who was in charge of the maintenance records for vehicles owned by
the Madison County Sheriff’s Department. The captain identified a letter written by
Petitioner to the captain requesting that he provide the Petitioner with maintenance records
for the video equipment on Officer Barnes’s vehicle. Captain Heavner also identified a letter
that he sent to the Petitioner in response to his request. That letter stated that he spoke with

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Officer Barnes, and Officer Barnes informed the captain that there was no repair needed to
the video or audio equipment. Officer Barnes said he had replaced the 9 volt battery and that
had solved the problem. Captain Heavner agreed that there had been no maintenance or
repair to Officer Barnes’s equipment.

Captain Heavner testified that the Sheriff’s Department’s internal policies require that
officers report damaged or defective departmental property. Officer Barnes had never
reported that his videotape equipment malfunctioned. The captain testified that if Officer
Barnes’s transmitter box had malfunctioned, there would be a maintenance record to support
that it had been fixed. The captain said there was “no repair” done to Officer Barnes’s video
equipment.

During cross-examination, Captain Heavner testified that his department did not keep
records of battery changes in the video equipment.

Officer Shane Barnes testified that he recalled that the videotape of his stop and arrest
of the Defendant did not have audio. He explained that the “old video systems” that the
department used in 2008 included a body microphone that clipped to the officers’ duty belts.
Officer Barnes explained that the microphones were powered by a 9 volt battery. At the
beginning of each shift, each officer was to check the video systems to ensure they were
properly operating. To ensure that his microphone was working, Officer Barnes would turn
on the battery pack of the microphone and confirm that the red light illuminated. Officer
Barnes said, however, that when a battery in the pack would stop working during the shift,
the officer was not provided any notice. The light on the battery would still be illuminated
when the battery began to stop working, but the transmitter in the microphone would not
transmit the audio to the recorder located in the car. This, Officer Barnes testified, is what
happened to his audio equipment during the Petitioner’s stop and arrest.

Officer Barnes recalled previously testifying that the microphone worked “off and
on.” He said this was due, in part, to the fact that the antenna worked like a radio system.
Officer Barnes testified that he checked whether the video and audio equipment were
working at the beginning of each shift. He said he was aware of the policy about having
malfunctioning equipment fixed but said that changing the battery immediately fixed the
audio problem.

Officer Barnes testified that he would have given a copy of the tape to the Petitioner
as soon as the Petitioner or his attorney requested it. He said that the original videotape
would have been made a part of the record. Officer Barnes testified that if the Petitioner
failed to make a written request for the video before the probation revocation hearing on
April 2, 2007, then the videotape would not have been provided to him before that hearing.

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Officer Barnes said he did not know whether the videotape had been turned over before the
suppression hearing.

Betty Newman testified she was a secretary for the District Attorney’s Office. She
said her responsibilities included typing the indictments. Newman testified she had never
been a grand jury member and had never presented a case before the grand jury. Newman
identified a lab report upon which there was a handwritten note that said, “Betty, we need to
no bill Marilyn Riggs. Al.” Newman explained that this kind of a note would usually mean
that there was not enough evidence to prosecute the person because of the lab results or some
other reason. Newman would, under these circumstances, be responsible for helping get the
bill dismissed.

Al Earls, an attorney in the district attorney’s office, testified that he drafted the
indictment and presented the case to the grand jury. Earls testified he had no independent
recollection of the Petitioner’s case and said he did not know if he spoke with Officer Barnes
before he presented the case. He said, normally, he would not interview an officer unless he
had some question about the case. Earls identified the note on the lab report that he had
written telling “Betty” to “no bill” Riggs. Earls said he could only speculate about why he
would not have sought an indictment against Riggs but sought one against the Petitioner. He
said that the State sometimes only prosecuted the “main Defendant” and, in this case, the
main defendant was the Petitioner.

After hearing arguments, the post-conviction court dismissed the Petitioner’s petition
for post-conviction relief.

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred when it denied
his request to amend his petition a third time and when it dismissed his petition for post-
conviction relief. He asserts that his trial counsel was ineffective for failing to: (1)
adequately investigate the case; (2) have an independent expert analyze the drugs; and (3)
request a jury instruction on the lesser-included offense of simple possession. He also asserts
that the cumulative effective of Counsel’s errors entitles him to post-conviction relief.

A. Third Amended Petition

The Petitioner contends that the post-conviction court erred when it denied his request
to file a third amended petition for post-conviction relief. In the third amended petition, the
Petitioner raised the claim that the State failed to present exculpatory evidence to the grand
jury that would have affected the grand jury’s decision to charge him. His “theory” was that

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Riggs was found in possession of “some of” the methamphetamine and that she was arrested
and given the opportunity to claim ownership of the drugs. When she failed to do so, Officer
Barnes arrested both Riggs and the Petitioner. In the amended petition, the Petitioner alleged
that the prosecutor failed to inform the grand jury about Riggs’s arrest or that she was on
bond for a methamphetamine possession charge at the time of her and the Petitioner’s arrests.
He asserts that the post-conviction court’s decision to disallow the amended petition amounts
to a ruling on the merits of the claim without an evidentiary hearing.

At the time it denied allowing the third amended petition, the post-conviction court
found that the amended petition was untimely filed, it contained claims not properly
reviewable pursuant to a petition for post-conviction relief, and that it was based upon claims
already asserted in the previous petitions. The post-conviction court, therefore, denied the
Petitioner’s request to file the amended petition.

On appeal, the Petitioner asserts that the post-conviction court should have allowed
him the opportunity to amend his petition. In Hutcherson v. State, 75 S.W.3d 929, 931
(Tenn. Crim. App. 2001), we noted that a post-conviction court has discretion to enter an
order allowing a petitioner to file an amended petition. Id.; see T.C.A. § 40-30-106(d)
(2006). Citing Tennessee Supreme Court Rule 28, section 6(B)(4)(b), we reiterated “that a
trial court must not dismiss a pro se petition ‘for failure to follow the prescribed form until
the court has given petitioner a reasonable opportunity to amend the petition with the
assistance of counsel.’” Hutcherson, 75 S.W.3d at 931.

We conclude that, in this case, the Petitioner was afforded a reasonable opportunity
to amend his pro se petition. After receiving the Petitioner’s original petition for post-
conviction relief and his first amended petition, both of which were filed pro se, the post-
conviction court appointed the Petitioner counsel. The Petitioner requested to represent
himself and filed a second amended petition. The trial court informed the Petitioner that
there would be no more amended petitions allowed. The Petitioner then filed a third
amended petition for post-conviction relief. We have recently held, “While courts should be
and are more lenient in construing pro se filings, no court can simply ignore the failure to
provide any factual support whatsoever for a claim raised in a pro se post-conviction
petition.” State v. Xavier C. Parks, No. W2007-00142-CCA-R3-PC, 2008 WL 648937, at
*1 (Tenn. Crim. App., at Jackson, March 11, 2008). The post-conviction court in this case
allowed the Petitioner a reasonable opportunity to amend his petition and also determined
that the issues raised in the third amended petition for post-conviction relief were not
colorable. The trial court did not abuse its discretion in this regard. The Petitioner is not
entitled to relief on this issue.

B. Ineffective Assistance of Counsel

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 The Petitioner contends that his trial counsel was ineffective for failing to: (1)
adequately investigate his case; (2) request or obtain an independent analysis on the drugs
found in the Petitioner’s vehicle; and (3) request a jury instruction on the lesser-included
offense of simple possession. He further contends that the cumulative effect of Counsel’s
errors entitles him to post-conviction relief.

To obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-
30-103 (2006). The Petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006).
Upon review, this Court will not re-weigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony and
the factual issues raised by the evidence are to be resolved by the trial judge, not the appellate
courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578–79 (Tenn. 1997). A post-conviction court’s factual findings are subject to de novo
review by this Court; however, we must accord these factual findings a presumption of
correctness, which can only be overcome when a preponderance of the evidence is contrary
to the post-conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). A post-conviction court’s conclusions of law are subject to a purely de novo review
by this Court, with no presumption of correctness. Id. at 457.

Both the Sixth Amendment to the United States Constitution and Article I, section 9,
of the Tennessee Constitution guarantee the right of a criminally accused to representation.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong test
directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that trial counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the [petitioner] by the
Sixth Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. Unless a [petitioner] makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

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 In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or the services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, “the reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n. 38 (1984)). We should not deem that counsel was ineffective merely
because a different procedure or strategy might have produced a different result. Williams
v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a particular strategy
or tactic failed or hurt the defense does not, standing alone, establish unreasonable
representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996)). However, deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation. House, 44 S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

1. Investigation

The Petitioner contends Counsel was ineffective because he failed to adequately
investigate the following: the circumstances surrounding the traffic stop; the videotape

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mechanics; and police department maintenance records. The Petitioner notes that Officer
Barnes testified during the suppression hearing, explaining the equipment malfunction by
saying “[I]t’s a little transmitter. It was in the transmitter box and they had to replace that.
That was fixed.” The Petitioner states that Counsel failed in his duty to investigate whether
there were any maintenance records indicating that the transmitter box had been replaced.
The State counters that Counsel’s explanation for not pursing the circumstances surrounding
the traffic stop and the malfunctioning audio equipment was reasonable and that the
Petitioner had not proven that he was prejudiced by Counsel’s representation.

The post-conviction court found:

When [P]etitioner was arrested, the arrest was video-taped, but the audio was
not functional. Petitioner claims that the officer “lied” about this and that the
audio would have proven that he did not consent to the search. The officer
explained that his transmitter was not functional.

Petitioner says his lawyer should have investigated and found the
maintenance records for the police car, which would have impeached the
officer’s testimony. The proof, however, was that there were no maintenance
records, as was explained at the hearing. The problem with the transmitter was
a battery problem. The battery was later replaced. If the trial lawyer had gone
to the sheriff’s maintenance shop for the records, he would have found none.

There was a minor inconsistency in the officer’s explanation for the
failure of his transmitter between his suppression hearing testimony and the
explanation at trial. Both explanations, however, were consistent with a bad
battery. The issue is expanded way out of proportion by the [P]etitioner. Trial
counsel was certainly not responsible for the officer’s testimony, and there
were no maintenance records to find. Furthermore, consent to search was not
an issue before the jury. That issue had already been resolved at the
suppression hearing.

We agree with the post-conviction court that the Petitioner has not proven by clear and
convincing evidence that Counsel was ineffective in this regard. The evidence proved that
the audio equipment malfunctioned because of a low battery. Officer Barnes changed the
battery, which did not produce any maintenance records for Counsel to find. With regard to
any claim about Counsel’s failure to investigate Riggs, Counsel sent an investigator to speak
with Riggs. She answered “I don’t know” or “no” to each of the investigator’s questions.
Counsel did not think, with good reason, that she would be a helpful witness for the
Petitioner. We conclude that Counsel’s representation was not ineffective based upon his

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investigation and that the Petitioner has not proven that he was prejudiced. He is not entitled
to relief on this issue.

2. Independent Analysis

The Petitioner contends that Counsel was ineffective for failing to request or obtain
an independent analysis of the drugs in the Petitioner’s vehicle. He asserts that the State’s
expert testified that one of the bags of drugs only slightly changed to an orange color. The
Petitioner asserts that this showed that the bag did not contain drugs at all, and Counsel
should have requested an independent analysis of the drugs. The State counters that the
Petitioner has not proven that Counsel was ineffective or that he was prejudiced by Counsel’s
representation in this regard.

The post-conviction court found that Counsel’s explanation of why he did not employ
the services of an independent expert was “reasonable.” The post-conviction court said that
the Petitioner’s defense was premised upon the fact that the drugs belonged to Riggs and not
to him. As such, the court found that any proof about the weight of the drugs or independent
testing verifying that the substance was, in fact, drugs, was not relevant to that defense.
Further, the post-conviction court noted that the Petitioner had offered no proof at the post-
conviction proceeding that the drugs seized were not methamphetamine or that the weight
was different from what the State had indicated at trial.

We conclude that the Petitioner has not proven by clear and convincing evidence that
Counsel was ineffective for failing to obtain the services of an independent expert. As noted
by the trial court, the Petitioner’s defense was based upon the assertion that the drugs did not
belong to him. This strategy did not require that Counsel prove that the substance was not
drugs or that it weighed less than the State indicated. Further, the Petitioner has not proven
that he was prejudiced. He has offered no proof that the substances were not
methamphetamine or that they weighed less than the State’s expert indicated at trial. The
Petitioner is not entitled to relief on this issue.

3. Jury Instruction

The Petitioner next contends that Counsel was ineffective for failing to request a jury
instruction on the lesser-included offense of simple possession. The Petitioner concedes that
the jury instructions are not a part of the record but says that he has requested to multiple
courts, including the post-conviction court and this Court, that they be transcribed but that
his requests have been denied. About this issue, the post-conviction court held:

In this regard, the [P]etitioner has misinformed the Court. Simple

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 possession was instructed. See TR p. 114.

Our review of the record indicates that the evidence does not preponderate against the post-
conviction court’s finding that the jury was instructed on the crime of simple possession.
The Petitioner is not entitled to relief on this issue.

4. Cumulative Effect

The Petitioner contends that the cumulative effect of Counsel’s errors rendered
Counsel’s representation ineffective. Because we have concluded that Counsel did not
commit any of the errors alleged by the Petitioner, we conclude the Petitioner is not entitled
to relief based upon the cumulative effect of those errors.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court did not err when it dismissed the Petitioner’s petition for post-
conviction relief. As such, we affirm the judgment of the post-conviction court.

________________________________
ROBERT W. WEDEMEYER, JUDGE

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