The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 7, 2014
ANTHONY CLINTON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 09-02125 James Lammey, Jr., Judge
No. W2013-00183-CCA-R3-PC - Filed January 30, 2014
Petitioner, Anthony Clinton, was convicted by a Shelby County jury of robbery, a Class C
felony, and was sentenced as a career offender to fifteen years in the Tennessee Department
of Correction. Following an unsuccessful direct appeal, he filed the instant petition for post-
conviction relief. The post-conviction court held an evidentiary hearing and denied relief.
Appealing from the post-conviction court’s order, petitioner pursues the following claims of
ineffective assistance of counsel: (a) failure to file a motion to suppress his identification; (b)
failure to file a motion to suppress the evidence seized during the search of his person; and
(c) failure to obtain copies of the store surveillance tapes and the 9-1-1 recordings.
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
R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and D.
K ELLY T HOMAS, J R., JJ., joined.
Rosalind E. Brown, Memphis, Tennessee, for the petitioner, Anthony Clinton.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Jessica Banti, Assistant District Attorney General,
for the respondent, State of Tennessee.
OPINION
I. Facts and Procedural History
A. Facts from Trial
On direct appeal, this court summarized the evidence presented at petitioner’s trial as
follows:
This case relates to a robbery of an Exxon convenience store on East
Shelby Drive in Memphis, Tennessee. Sophia Chambers testified that she
worked at the store on January 2, 2009. She said she was trained in various
aspects of being a sales associate including being trained to pay attention to a
customer’s appearance and in procedures to follow during a robbery.
Ms. Chambers testified that because her shift was to end soon, she
placed the cash register money into the store safe at approximately 8:50 p.m.,
leaving only sixty dollars in the register. She said no customers were in the
store. She stated that after she placed the money in the safe, a young boy and
a teenage girl entered the store. She said the Defendant entered the store after
them but he did not appear to be with the younger customers.
Ms. Chambers testified that the Defendant “caught” her eye as he
walked through the store. She said the Defendant watched the young boy and
girl and walked back and forth in front of one of the drink coolers. She said
that the young customers approached the counter to pay for the items they
selected and that the Defendant walked behind them as though he was ready
to pay for an item. She said that the Defendant hovered over the young
customers as he moved closer to the counter and that his actions scared her.
Ms. Chambers testified that after the teenage girl paid for the items and
the cash register was open, the Defendant shoved the young boy, jumped onto
the counter, and reached into the cash register. She stated that the Defendant
pushed her and that she slammed the cash register drawer shut on his arm
many times. She stated the Defendant fought her with the elbow of the arm
caught in the cash register and with his other arm to make her back away. She
said that she continued to push the cash register drawer closed while the
Defendant’s arm was still caught in the drawer but that the Defendant was able
to remove his arm and take money from the drawer before she could close the
cash register. Just before the Defendant got the money, he had moved his arm
enough to cause Ms. Chambers to mash two of her fingers as she tried to close
the cash register.
Ms. Chambers testified that she was afraid of the Defendant and
thought he wanted to attack her but that she realized the Defendant “just
wanted the money.” She said she did not attempt to retrieve the money from
the Defendant because she was afraid. She stated that after the Defendant
“jumped back over the counter” and ran to the door to leave, he gave her an
intimidating look that scared her. Ms. Chambers said that she did not know
what the Defendant was going to do and that she just stood behind the cash
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register and watched the Defendant. Ms. Chambers stated that after the
Defendant left the store, she went to the door to look outside and saw the
Defendant sitting in a “silver-grayish” Oldsmobile with Tennessee tag number
228SWW. Ms. Chambers said the Defendant drove northbound on Kirby
toward Raines.
Ms. Chambers testified that after the Defendant drove away, she locked
the doors to the store and asked if the boy and girl would stay to speak with the
police. She went back to the cash register and determined that a twenty-dollar
bill was missing from the register. She spoke with a 9-1-1 dispatcher and
provided a description of the man and his car, the time he entered the store,
and the direction in which he drove. She said the police arrived approximately
ten minutes after she was robbed with a suspect in the back seat of the police
cruiser. She said the police asked her to identify the man, whom she
recognized as the man who robbed her.
Ms. Chambers testified that after the robbery, she remained scared, did
not return to work for one week, and stayed home most of that week. She said
she was too frightened to go back to any Exxon convenience store during that
time. Ms. Chambers said she was scared because she did not know if someone
would target her or if the Defendant remained in jail. She stated that she used
Exxon’s mental health counseling service for two days after the robbery and
that her hand was sore for three days.
On cross-examination, Ms. Chambers testified that there were eight or
more surveillance cameras inside the store. She said approximately fifteen
police officers were at the store after the robbery and recalled speaking with
Officers Robinson and Valentine. She said that when she gave her statement
to the police the night of the robbery, the police were aware of the eight
surveillance cameras. She said she did not know if the police gathered the
video recordings from the surveillance cameras because after the police
arrived, she identified the Defendant in the backseat of the police cruiser, the
Defendant was placed in custody, and she drove with her friend, Latoya
Boatwright, to the police station to make her statement.
Ms. Chambers testified that while she and the Defendant struggled over
the cash register, the Defendant jumped onto the counter but did not make it
behind the counter. She said that when she said “over the counter” in her
formal police statement, she meant that the Defendant had to jump over the
shelves in front of the counter.
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....
Memphis Police Officer Herman Robinson testified that on January 2,
2009, he received a radio communication to be on the lookout for a late model
silver, four-door Oldsmobile Intrigue driven by a black male. Officer
Robinson said he saw a car matching the description approximately six
minutes later. Officer Robinson stated that he activated his blue lights and
honked his horn and siren. The car stopped and Officer Robinson identified
the Defendant as the driver. Officer Robinson said he found a twenty-dollar
bill in the Defendant’s pants pocket. The twenty-dollar bill was received as an
exhibit.
....
Officer Robinson said Ms. Chambers identified the Defendant without
hesitation as the person who robbed her. Officer Robinson said Ms. Chambers
stated that the Defendant was able to get the money by shoving her backwards
and that she injured her hand during the robbery.
State v. Anthony Clinton, No. W2010-02157-CCA-R3-CD, 2011 WL 4026863, at *1-3
(Tenn. Crim. App. Sept. 12, 2011), no perm. app. filed.
B. Procedural History
Petitioner filed a timely petition for post-conviction relief, and through appointed
counsel, he filed an amended petition. The post-conviction court held an evidentiary hearing,
after which it denied relief.
C. Facts from Evidentiary Hearing
At the November 12, 2012 evidentiary hearing, petitioner called trial counsel as his
first witness. Trial counsel testified that he represented petitioner in a robbery case in 2009
involving an Exxon gas station. He stated that during the course of his representation, an
issue arose concerning the identification of petitioner. Officers did not utilize a photographic
line-up; rather, they conducted a “show-up” identification almost immediately after the
robbery occurred. Petitioner was arrested approximately four miles from the Exxon station.
According to trial counsel, petitioner did not deny being present at Exxon and taking
money. He claimed that it was a theft and not a robbery. The victim testified at the
preliminary hearing, and trial counsel had her testimony transcribed. Trial counsel stated that
in his experience, if a surveillance tape from a store such as Exxon was not obtained during
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the initial investigation, it would not be available because the tape is “looped” every six
hours and would have been taped over very quickly. Trial counsel requested a copy of the
9-1-1 recording, but he learned that those calls are preserved for only a period of months. He
received a copy of the event chronology, but the tape itself was no longer available.
Moreover, he stated that in his experience, 9-1-1 tapes never assisted his clients. He
anticipated that the recording would have stated, “‘We’ve been robbed,’” which was “the last
thing” he would have wanted the jury to hear.
Trial counsel explained that there was no allegation that petitioner used a weapon. The
robbery charge was predicated upon placing the store clerk in fear. Trial counsel did not file
a motion to suppress the “show-up” identification. He testified, “[I]f I thought I had grounds,
I would have filed a motion; however, I take the rules seriously[,] and it’s against the rules
to file a frivolous motion[.]” He gleaned from the discovery material that the Exxon parking
lot was “extremely well-lit” and that the store clerk alleged that petitioner’s car was parked
on the side of the building where she could see it when she walked outside. She was able to
write down the vehicle’s tag number, and the number matched the automobile that petitioner
was driving on the night in question. The victim also identified petitioner at the preliminary
hearing.
Trial counsel recalled the circumstances of the offense and said that the allegation was
that petitioner forcefully removed $20 from the cash register when the clerk opened it to
complete a transaction with another customer. When petitioner was arrested, an officer
removed a single $20 bill from petitioner’s pocket. Trial counsel did not recall whether
petitioner said that he had other money in his possession when he was arrested.
On cross-examination, trial counsel acknowledged that petitioner’s claim was that he
“‘shoplift[ed]’” the money from the cash register and that he did not utilize a weapon or
place the victim in fear. Petitioner never denied to trial counsel that he was present; he
merely asserted that he committed a theft and not a robbery. He opined that even if petitioner
had denied being present, there would not have been a basis for moving to suppress the
show-up identification.
Trial counsel confirmed that he had over thirty years of experience practicing law and
that he had tried over one hundred cases. As such, he pursued the best defense available to
petitioner, which was that he committed a misdemeanor and not a felony. The defense was
in contravention of the victim’s testimony that she smashed her fingers in the cash register
drawer as she attempted to slam it shut and that she struggled with petitioner. The customer
at the counter testified that she witnessed the struggle between petitioner and the clerk and
identified petitioner at trial.
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Petitioner then testified on his own behalf. He denied having admitted to trial counsel
that he committed a theft at Exxon. He claimed that the first time he saw the clerk was at the
preliminary hearing. He maintained that when he was arrested, law enforcement seized over
one thousand dollars from him but that “the only thing that came up” was the $20 bill.
Petitioner stated that he asked trial counsel to obtain surveillance footage from Exxon but
that he failed to do so. He also said that when the police drove him back to Exxon for the
show-up identification, he remained in the car, which was parked approximately ten feet
away from the clerk’s vantage point. He did not believe that she could see him from where
she was located.
On cross-examination, petitioner indicated that he believed that the arresting officer
coerced the victim’s identification of him. He claimed that the officer said to the victim in
court, “‘That’s him right there, about the fifth from the right.’” He said that they were trying
to solve the case and that he “fit the bill” because he had similar charges on his record. He
acknowledged that he had seven prior robbery convictions and twelve prior theft convictions
before this charge.
At the close of the hearing, the post-conviction court made the following oral findings:
I didn’t believe a word [petitioner] had to say[,] to be honest; and, so, . . .
there’s no way, in my opinion[,] . . . he has carried his burden of proof as to
either prong of the Strickland case.
According to Strickland [v.] Washington, [petitioner] must first show
the counsel’s errors were so serious as to deprive . . . petitioner of effective
assistance of counsel as guaranteed by the [S]ixth and [F]ourteenth
[A]mendments to the United States Constitution. Well, there were no errors
– there were none. In fact, I can’t think of a single thing that [counsel] did
wrong other than, perhaps, maybe, not forcing [petitioner] to take [the plea]
offer that he was given. [Petitioner] . . . was the cause of his own demise; and,
of course, a lawyer can’t force a client to do that.
And even today, [trial counsel] is willing to help out [petitioner]. It’s
just one who I don’t think deserves any type of consideration, whatsoever. He
clearly lied to me under oath today. So, there is no violation of the first prong
of Strickland . . . [C]onsequently, the second prong [is] that . . . petitioner must
show that counsel’s performance prejudiced [petitioner][,] therefore[] denying
[petitioner] a fair trial. That is[,] performance must fall below the objective
standard of reasonableness.
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I find that [petitioner] has not carried his burden of proof in this matter[,] and
the petition for post-conviction relief is denied.
This appeal follows.
II. Analysis
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).
The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).
To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). Further, to establish that he suffered prejudice as a result of counsel’s
deficient performance, he “must establish a reasonable probability that but for counsel’s
errors the result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116
(citing Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).
We now turn to petitioner’s complaints of ineffective assistance of counsel. His
argument on appeal consists of one-half of a page, in which he lists the following allegations
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of ineffective assistance of counsel: “trial counsel’s (a) failure to seek suppression of his
identification; (b) failure to seek suppression of evidence resulting from the search and
seizure; [and] (c) failure to get copies of the store surveillance tape and 9-1-1 call tape.” He
makes the statements that “[p]etitioner further contends that trial counsel’s failures fell well
below the range of competence demanded of an attorney in a criminal case” and that “he was
prejudiced by [t]rial [c]ounsel’s failures.”
Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure provides that a brief
shall contain “[an] argument . . . setting forth the contentions of the appellant with respect
to the issues presented, and the reasons therefor, including the reasons why the contentions
require appellate relief, with citations to the authorities and appropriate references to the
record . . . relied on.” Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues
which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.” State v. Brock, 327 S.W.3d 645, 696 (Tenn.
Crim. App. 2009). Petitioner failed to set forth any argument whatsoever with regard to how
trial counsel performed deficiently or how, exactly, he suffered prejudice as a result thereof.
Although petitioner cites both the Strickland and Baxter cases as propositions of law, he
makes no citation to the record directing this court to testimony in support of his assertions
of error. Therefore, we conclude that petitioner has waived appellate review of the post-
conviction’s order denying relief in this case.
CONCLUSION
Based on the record as a whole, the parties’ briefs, and applicable legal authorities,
we affirm the judgment of the post-conviction court.
_________________________________
ROGER A. PAGE, JUDGE
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