Aaron Malone v. State of Tennessee

04/18/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Deember 6, 2016 Session

AARON MALONE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-02332 James C. Beasley, Jr., Judge

No. W2016-00666-CCA-R3-PC

The petitioner, Aaron Malone, appeals the denial of his petition for post-conviction relief

from his conviction for first degree felony murder. He asserts that the court erred in

denying relief because he received the ineffective assistance of counsel and his due

process rights were violated by the State’s failing to preserve unedited footage from “The

First 48” television show. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROBERT L. HOLLOWAY, JR., JJ., joined.

Lance R. Chism (on appeal) and TeShaun D. Moore (at hearing), Memphis, Tennessee,

for the appellant, Aaron Malone.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Kenya N. Smith and

Karen Cook, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was indicted along with a co-defendant, Calvin Nelson, for first

degree felony murder committed during an attempted robbery. The petitioner filed two

motions to suppress prior to trial, both of which were denied by the trial court, and the

case proceeded to trial. The jury convicted the petitioner as charged, and the trial court

imposed a sentence of life imprisonment as a violent offender. The petitioner appealed,

challenging the trial court’s rulings on his motion to suppress his statement, the

admission of the victim’s teeth at trial, and the State’s use of an expert witness in rebuttal.

This court affirmed the trial court’s judgment, and the Tennessee Supreme Court denied

the petitioner’s application for permission to appeal. State v. Aaron Malone, No. W2009-

02047-CCA-R3-CD, 2011 WL 1005487, at *1 (Tenn. Crim. App. Mar. 22, 2011), perm.

app. denied (Tenn. July 13, 2011).

The underlying facts of the case were recited by this court on direct appeal as

follows:

The parties presented the following evidence at the [petitioner’s]

July 2009 trial. Joseph Zeller testified that he owned Tiger Truck Lines and

that the victim began working for the truck line six to seven years before

the trial. Mr. Zeller stated that the victim was in Memphis, Tennessee,

between September 16 and September 17, 2007, because he was delivering

a load of appliances to a warehouse. Mr. Zeller identified a picture of the

victim’s truck outside of a warehouse in Memphis, and he said that he was

familiar with the truck because he bought it from the victim’s widow after

his death. He testified that a person standing on the ground would not be

able to look into the truck’s window, which was six and a half to seven feet

off the ground. Mr. Zeller identified two Comcheck cards, which had

“Tiger Truck Lines, New Albany, Indiana” on the front. He said that he

knew the victim used those two cards because the card numbers matched

the bill associated with the victim’s truck and because the victim signed the

receipts.

Ricky Cole testified that on September 17, 2007, he was working at

Serpro, a warehouse located at 3835 Knight Road in Memphis, Tennessee.

He said that he saw a truck parked at the warehouse that he recognized as

belonging to a truck driver that regularly delivered to Serpro. Someone

informed him that the truck had a broken window, so he went to

investigate. He testified that he knocked on the door, and when no one

answered, he opened the door and discovered the victim’s body lying in the

aisle of the truck. Mr. Cole said that he did not notice anything unusual

about the truck other than the broken glass and did not notice signs of

blood. He testified that he called 911 immediately after finding the victim.

Memphis Police Officer Shaun Tucker testified that he responded to

a homicide call on September 17, 2007. He said that he secured the scene

and located witnesses. Officer Tucker maintained the scene until his

lieutenant, the homicide bureau investigators, and the crime scene

investigators arrived.

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Hardin Edwards, a truck driver, testified that he arrived at his point

of delivery on Knight Road in Memphis at 1:20 a.m. on September 17,

2007. He said that he was sitting in his truck doing paperwork when he

saw a car “come out from where a truck was parked further down in the

warehouse area,” and he saw the same car return ten minutes later to park

beside the rear tires of the truck on the driver’s side. Mr. Edwards testified

that he noticed the car because the rear window was broken and “had

plastic wrapped around it.” He said that when he went to bed at 1:50 a.m.,

the car was still parked in the same place. Mr. Edwards identified a picture

of the car that he saw that day. When he awoke at 7:00 a.m., he saw a fire

truck and police officers responding to the scene. After someone informed

him that a truck driver had been killed, he told the police what he had seen

earlier.

Theresa Rucker testified that in September 2007, she was working

for Federal Express at 3835 Knight Road. She said that on September 17,

2007, she had to be at work at 2:15 a.m. Ms. Rucker testified that on that

day, as she entered the parking lot, she noticed a turquoise car with the rear

window broken because the car was driving fast and almost hit her. She

said that she told police about the turquoise car later that day after seeing

the police and the fire department around the victim’s truck.

On cross-examination, Ms. Rucker testified that she saw a black

male driving the car and a black person in the passenger seat, but she could

not tell whether the passenger was male or female.

Memphis Police Officer Charles Cathey, a crime scene investigator,

testified that he responded to the scene on September 17, 2007. He said

that he observed a red tractor trailer with the driver’s side window broken

and saw glass on the truck’s steps and small dent marks on the door, “like

something had struck the truck.” Officer Cathey testified that when he

opened the door, he saw a red substance that appeared to be blood on the

inside of the driver’s door and broken glass on the driver’s seat and the

floor beside the seat. He also saw a substance that appeared to be blood on

the outside of the driver’s door and the steps of the truck. Officer Cathey

found a human tooth on the floor of the truck. He said that there was a wire

hanging down from the roof of the cab where a CB radio would typically be

located. Officer Cathey testified that there was a large pool of blood

between the front seats of the truck, and a small pool of blood and broken

glass under the driver’s seat. He located a second human tooth on the

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driver’s seat, underneath a seat cover. Officer Cathey said that the victim’s

body was lying on the floorboard of the cab.

On cross-examination, Officer Cathey testified that another officer

processed the truck for fingerprints after they towed it to the impound lot.

He said that the officer did not find any usable prints on the outside of the

truck. He did not recall the officer processing the interior of the truck for

fingerprints. Officer Cathey testified that he completed a form in which he

reported that another officer processed a turquoise Saturn for fingerprints

and found that the car was negative for prints.

Suleman Shamsuddin testified that in September 2007, he owned the

BP service station at 4161 Winchester Road. He said that the video

surveillance system was working on September 17 and that the store had an

automated teller machine (ATM), but the ATM was out of currency. The

[S]tate published the surveillance video from September 17, 2007, to the

jury.

Sheila Dixon testified that in September 2007, she lived in the

Wooddale Condominiums on Winchester Road. She said that on

September 17, 2007, her boyfriend had wired her money, but she could not

pick up the money transfer because she could not find her identification.

When she saw the [petitioner], with whom she was friends, in the

condominium complex, she asked him if he could get the money transfer

for her with his identification. Ms. Dixon testified that while they were

waiting for a ride to pick up the money gram, the [petitioner] told her that

he had shot a truck driver by mistake. She said that he offered her the truck

driver’s credit cards, and she said that the [petitioner] also had a telephone,

some papers, and a wallet with him. She testified that she did not take the

credit cards, but that “[t]hey ended up in [her] purse.” Ms. Dixon testified

that the person who picked them up to take them to get the money gram

told the [petitioner] that he wanted “that hot CB” that the [petitioner] had.

She recalled seeing the CB in the car, and she said that she was familiar

with CB radios because her boyfriend was a truck driver. Ms. Dixon

testified that the police searched her apartment, and she gave them her

purse, in which they found the credit cards. Ms. Dixon identified the

Comdata credit cards that the [petitioner] offered to her and which the

police found in her purse. Ms. Dixon recalled that the [petitioner] and his

co-defendant gave her a ride sometime before September 17, and she

testified that there was a sawed-off shotgun in between the seats and that

they told her that “they [were] going to check on a trap.” She said that

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checking on a trap meant to her that they were trying to make some money.

Ms. Dixon said that the co-defendant drove the car and the [petitioner] sat

in the passenger’s seat. She testified that she knew the [petitioner] as Big

Daddy and the co-defendant as Unk.

On cross-examination, Ms. Dixon said that the police came to her

apartment looking for the [petitioner]. She agreed that she told the police

about the [petitioner’s] alleged confession to her while incarcerated on a

forty-eight-hour hold.

Scarlett Renee Banks testified that on September 17, 2007, from her

back door, she saw the [petitioner] driving a burgundy truck and the co-

defendant driving a turquoise car around the Wooddale Condominiums.

She said that she went outside to where they had gotten out of their

vehicles. Ms. Banks testified that the co-defendant handed her a gun and

said, “‘Huh go put this up.’” She took the gun inside of her home and put it

behind her couch. Ms. Banks said that the gun was a short shotgun that had

plastic and tape on it. She testified that she went back outside, and she saw

the [petitioner] and co-defendant in an empty apartment. She said that they

had “a lot of blood on them” and that they were washing money that had

blood on it. Ms. Banks testified that she gave the police consent to search

her apartment on September 20, 2007. She said that the gun was not in her

apartment when they searched it, but the police came back later and found

the gun somewhere else.

Marcus Nelson testified that the co-defendant was his uncle. He

testified that he gave the co-defendant a sawed-off shotgun on a Saturday,

which was the 15th of the month but he could not recall which month. Mr.

Nelson said that he identified the gun for the police on September 20, 2007,

and he agreed that he gave the co-defendant the gun on the Saturday before

September 20.

Tennessee Bureau of Investigation Special Agent Cervinia Braswell,

a forensic scientist in the firearms identification unit, testified that she

examined the shotgun found by police in the course of their investigation in

this case. She explained that the shotgun was a single shot, 12 gauge,

model and that the barrel was sawed off. Agent Braswell said that Hopkins

and Allen manufactured the shotgun between 1898 and 1917. She testified

that the force necessary to pull the trigger was three pounds, but a person

could also fire the weapon if he pulled the hammer back without cocking it

all the way and then let the hammer fall forward. She said that if a person

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hit the back of the gun with a mallet-type hammer with enough force, that

the gun would fire. Agent Braswell clarified that if the hammer is fully

cocked, the person must pull the trigger to fire the gun. Agent Braswell

identified photographs, labeled as Exhibits 40 and 42, which she said

depicted, respectively, pellets consistent with coming from a shotgun shell

and cardboard shotgun shell wad. She testified that she could not identify

pellets as coming from any particular shotgun. Agent Braswell said that for

the medical examiner to find a shotgun shell wad in a victim during an

autopsy, the muzzle of the shotgun “would have to [have been] fairly close”

because the wads lose momentum as they travel.

Memphis Police Sergeant Anthony Mullins testified that he

participated in the investigation in this case. He identified the shotgun

found by police on September 20, 2007, on Boxdale Street. Sergeant

Mullins said that the shotgun “was inside a plastic bag behind a board that

was used to board up a vacant building.” He stated that the co-defendant

told the police that he gave the gun to Renee Banks. When the police did

not find the gun in Ms. Banks’s apartment, they took the co-defendant to

the area and allowed him to speak with Ms. Banks, who eventually led

them to the location of the gun.

Sergeant Mullins further testified that he interviewed the [petitioner]

on September 24, 2007. He said that the police had been actively looking

for the [petitioner] for five to six days. Sergeant Mullins testified that he

and his partner, Sergeant Mason, advised the [petitioner] of his rights prior

to the questioning, and the [petitioner] signed a waiver form. Sergeant

Mullins said that the [petitioner] did not appear to be under the influence of

any intoxicants. The [petitioner] told them that he went to Nashville,

Tennessee, on Sunday, September 16, with a friend because his friend had

an appointment for a urine test in connection with his probation. The

[petitioner] stated that they stayed in a hotel that night, went to the 9:00

a.m. test on Monday morning, and immediately returned to Memphis.

Sergeant Mullins said that he showed the [petitioner] pictures of several

individuals with the same name as the [petitioner’s] friend with whom he

allegedly went to Nashville as well as the pictures of the co-defendant and

potential witnesses. Of all the pictures, the [petitioner] said that he only

recognized Sheila Dixon. Sergeant Mullins showed the [petitioner] a still

photograph taken from the BP station located at Winchester Road and

Lamar Avenue that showed a “teal, blue-green Saturn [with] a big piece of

plastic on the back windshield with tape on it,” and the [petitioner] stated

that he recognized the vehicle. Sergeant Mullins could not recall whether

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the [petitioner] said how he recognized the vehicle. He showed the

[petitioner] a second still photograph from the interior of the BP station that

showed the [petitioner] inside the store, and the [petitioner] read aloud the

time stamp on the photograph, which was September 17, 2007 at 2:26 a.m.

The [petitioner] admitted that he had not been in Nashville the evening of

September 16 through September 17. He said that he met a man called Unk

at the BP station, and they ran a scam with credit cards that Unk had.

Sergeant Mullins said that they questioned him further about “that version

of events” and then took a break from the interview. When they returned,

the [petitioner] told them that he wanted to tell them the truth. The

[petitioner] identified a photograph of the co-defendant as the man he called

Unk. He said that the co-defendant approached him about making money.

The [petitioner] drove the Saturn, with the co-defendant as the passenger, to

a truck stop on Knight Road. They approached a truck, and he let the co-

defendant out of the car and drove away. After hearing a loud noise that he

thought sounded like a gunshot, the [petitioner] looked back at the truck

and saw the co-defendant get into the truck, leave the truck, and return to

the car. Sergeant Mullins testified that they told the [petitioner] that they

had previously talked to the co-defendant, who had told them his version of

the events, and that they felt that the [petitioner] “was still being less than

truthful with [them].” They told him that “[h]e could proceed and tell

[them] the full truth, or go with what [they] had, so far.” Sergeant Mullins

said that, at that point, the [petitioner] admitted to being the passenger in

the car and to firing the shotgun. The [petitioner] told them that “[h]e was

just going to try to scare [the victim] out of his money with the gun, but it

went off as soon as he tried to cock it.” Sergeant Mullins testified that,

after the [petitioner] gave his oral statement, they advised him of his

Miranda rights a second time and memorialized his statement in writing. In

his written statement, the [petitioner] admitted to being responsible for the

victim’s death and stated that he accidently shot him while trying to rob

him. The [petitioner] further stated that his co-defendant drove them to the

victim’s truck in a blue-green car with a busted back window, which the co-

defendant had stolen. He said that he took a phone and a wallet from the

victim. They left the area but then returned to the truck and took a CB

radio. The [petitioner] said that he was wearing a black shirt and blue jeans

when he shot the victim, and he changed into a white shirt and jogging

pants at the Wooddale Condominiums, leaving the black shirt and blue

jeans in a vacant apartment. The [petitioner] said that he “attempted to use

[the victim’s Visa credit card] at BP, but [he] didn’t get a chance to use it.”

He said that the clothes he had on during the interview were the same

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clothes he changed into that day, so Sergeant Mullins collected the clothes

as evidence.

Dr. Lisa Funte, a forensic pathologist and an assistant medical

examiner, testified that lacerations on the victim’s body indicated that the

shooter fired through an intermediate target, and she agreed that glass could

have been the intermediate target. Dr. Funte said that because the pellets

did not have an upward or downward trajectory, the shooter held the

shotgun level with the ground, and because the victim was inside a truck,

the shooter most likely had to stand on the steps of the truck. Dr. Funte

testified that a shortened shotgun fired from close range caused the victim’s

injuries and that a shotgun wound to his neck and chest caused his death.

The [petitioner] offered into evidence Tennessee Bureau of

Investigation reports showing that agents did not find blood on the

[petitioner’s] clothing.

The [S]tate called Sergeant Mullins in rebuttal, and the court

qualified him as an expert in crime scene investigation. He opined that,

based on his analysis of crime scene photographs, a person could have

entered the victim’s truck twice without getting blood on his clothes if he

had moved the victim’s body out of the driver’s seat.

Id. at *3-7.

In addition, this court described the proof at the suppression hearing that took

place before trial as follows:

Prior to trial, the [petitioner] presented two motions to suppress his

statement. His first motion alleged that he was under the influence of

marijuana when interviewed by police; therefore, his waiver of his Miranda

rights was not voluntary, knowing, or intelligent. His second motion

alleged that the court should exclude his statement because it arose due to

an improper arrest. On August 21, October 2, and October 24, 2008, the

court held suppression hearings, at which the parties presented the

following evidence.

State’s Proof. Memphis Police Officer Joe Stark testified that he

was the case coordinator for the investigation into the victim’s death. He

explained that he developed the [petitioner] as a suspect based on the co-

defendant’s identification of the [petitioner], various witness statements,

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and video surveillance tapes of the [petitioner] on the night of the victim’s

murder. Officer Stark testified that none of the witnesses were able to tell

police where the [petitioner] lived.

On cross-examination, Officer Stark agreed that he secured neither a

search warrant for any residence where the [petitioner] might have been nor

an arrest warrant for the [petitioner].

Memphis Police Sergeant Anthony Mullins testified that he

interviewed the [petitioner] after police took the [petitioner] into custody.

Sergeant Mullins said that he had the [petitioner] read aloud the advice of

rights form, and the [petitioner] did not have any difficulty reading the

form. He stated that the [petitioner] was “kind of unkempt, but he was

alert. He was basically cooperative during the entire process . . ., and he

seemed to be pretty clear[-]headed, lucid.” Sergeant Mullins testified that

nothing in his interaction with the [petitioner] led him to believe that the

[petitioner] was not in control of his faculties or intoxicated in any way.

On cross-examination, Sergeant Mullins testified that the [petitioner]

had said that he had smoked marijuana “about two hours before he was

even arrested . . . [w]hich was about three hours before [they] talked to

him.” Sergeant Mullins stated that it might have been up to five hours

between when the [petitioner] smoked the marijuana and when he

interviewed him. He testified that it took six and a half hours to begin

typing the [petitioner]’s written statement because the [petitioner] told

“elaborate” lies, they took breaks, and they took time to attempt to verify

what the [petitioner] told them. Sergeant Mullins said that it was necessary

to tell the [petitioner] parts of what the police already knew so that the

[petitioner] would realize that the police were not merely guessing about

his involvement.

Detective Jason Bartlett, of the Shelby County Sheriff’s Office,

testified that the Memphis Police Homicide Unit requested that the sheriff’s

office assist them in locating the [petitioner]. Detective Bartlett said that

his research on the [petitioner] led him to a residence on Auburn Road. He

and his team went to that address. Detective Bartlett testified that they

knocked on the door, and . . . a young, adult, male black . . .

answer[ed] the door. [They] identified [themselves] to the

young adult. [They] were in gear that said Sheriff on it. And

[they] showed the young male black a picture of [the

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petitioner] and asked him if he knew him and the subject

identified that he did know him. [They] asked if [the

petitioner] was inside the residence and the young male black

said . . . he was. And [they] asked him where he was and . . .

he pointed towards the back of the residence on the inside. At

that time, the young male black . . . stepped out of the way of

the doorway allowing [them] access into the residence.

Detective Bartlett said that they found the [petitioner] lying on a bed

and handcuffed him. He stated that they did not search the residence.

On cross-examination, Detective Bartlett said that the person who

answered the door appeared to be at least eighteen years old. He agreed

that he did not ask the person who he was, whether he had permission to

grant access to the home, or to sign a consent to search form. Detective

Bartlett testified that he did not encounter anyone else in the house and did

not recall anyone asking him whether he had a warrant.

Defense Proof. Geraldine Maldrough testified that in September

2007, she lived on Auburn Road with her sister, Edna Elrod, and Ms.

Elrod’s two grandsons, Lindsey and Delvon. Ms. Maldrough recalled that

on a Monday during the day, Delvon came to her room, which was in an

attached mother-in-law suite, and told her that the police w[]ere there

looking for the [petitioner]. She went to the front of the house and asked an

officer whether they had a warrant. The officer replied that they did not

need a warrant. Ms. Maldrough said that by that time, they were taking the

[petitioner] out of the house. She said that she saw more than four officers.

Ms. Maldrough testified that Delvon was fourteen years old at the time.

The defense called Detective Bartlett, who testified that he did not

recall having a conversation with the [petitioner] about whether the

[petitioner] was under the influence of any drugs. He stated that he had

reviewed a videotape of when he walked the [petitioner] into the homicide

office. Detective Bartlett testified that the tape recorded his making a

statement that the [petitioner] had told the officers that they were ruining

his high.

Edna Elrod testified that she was a friend of the [petitioner] and that

they had dated from 1998 until 2001. She said that she lived on Auburn

Road with her sister, her son, and her grandsons, Lindsey and Delvon. Ms.

Elrod stated that Delvon was fourteen years old in September 2007. She

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testified that the [petitioner] had been staying with her for approximately

one week before his arrest.

In its order denying the [petitioner’s] motion to suppress his

statement, the court found that the [petitioner’s] arrest was illegal because

(1) the [petitioner] was an invited guest, (2) the police did not have a

warrant, (3) they did not have valid consent to enter, and (4) there were no

exigent circumstances. Under the precedent of New York v. Harris, 495

U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the court ruled that the

exclusionary rule did not require that the [petitioner’s] statement be

suppressed because the police had probable cause for arresting the

[petitioner] and they did not obtain his statement by exploiting the unlawful

entry.

Id. at *1-3.

Relevant to this appeal, the petitioner challenged the trial court’s suppression

ruling on direct appeal, but this court upheld it. Id. at *7. This court first rejected the

petitioner’s argument that his Miranda waiver was not knowing and voluntary because he

was intoxicated with marijuana at the time. Id. at *7-8. This court noted Sergeant

Mullins’ testimony that an estimated three to five hours had passed between when the

petitioner smoked marijuana and when officers began the interview and that all of the law

enforcement officers who testified agreed that the petitioner did not appear to be

intoxicated. Id. at *8. This court also noted that the petitioner was capable of giving a

narrative of past events and creating an elaborate false story prior to eventually detailing

how he shot the victim while robbing him. Id. This court further noted that the petitioner

presented no evidence suggesting that he was so influenced by drugs that his “confession

cannot be considered the product of a free mind and rational intellect.” Id. (citation

omitted). This court accordingly found that the petitioner was not entitled to relief with

regard to the knowing and voluntary nature of his confession. Id.

With regard to the petitioner’s assertion that his statement should have been

excluded because it arose during an improper arrest, this court, in reliance upon New

York v. Harris, 495 U.S. 14 (1990), declined to exclude the statement. Id. at *7, *9-10.

This court noted that, under Harris, the exclusionary rule did not bar the use of a

statement if it was taken after an unlawful arrest that was nonetheless supported by

probable cause. Id. at *10 (citing State v. Jenkins, 81 S.W.3d 252, 264 (Tenn. Crim.

App. 2002)). Turning to the present case, this court observed that “[t]he police had

information from the co-defendant and other witnesses regarding the [petitioner’s]

involvement, and they took the [petitioner’s] statement at the police station after ensuring

that the [petitioner] understood his Miranda rights.” Id. This court concluded that “the

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police had probable cause to arrest the [petitioner] in his residence and that the

exclusionary rule does not require the suppression of his subsequent statement taken

outside of the residence.” Id.

On March 14, 2012, the petitioner filed a pro se petition for post-conviction relief.

Thereafter, various amended and supplemental petitions were filed through appointed

post-conviction counsel as well as pro se. In his petitions, the petitioner raised a number

of allegations, including three of the issues pursued in this appeal: that trial counsel was

ineffective for (1) failing to argue that the petitioner’s arrest was not supported by

probable cause; (2) failing to argue that the petitioner’s judicial determination of probable

cause was unreasonably delayed; and (3) not attempting to obtain the unedited footage

from “The First 48” television show.

The post-conviction court conducted an evidentiary hearing, at which the

petitioner testified that he “[v]aguely” remembered the events of the night he was

arrested. He recalled that he was asleep at his girlfriend’s house and woke “up with guns

in [his] face.” He admitted that, prior to falling asleep, he was “[g]etting high” on

“[w]eed, cocaine, rock cocaine.” Specifically, he “had been smoking rock cocaine all

night and . . . had smoked about five blunts.” The petitioner said that when he took

drugs, he became “spaced out,” and his mind felt “clouded.” He also said that, when

under the influence of drugs, he was capable of telling an elaborate lie “if [he] was trying

to get out of something.” The petitioner estimated that on the night he was arrested, he

was “[o]ver the scale” on a scale of one to ten with ten being the “highest” he could be.

The petitioner testified that he could not recall how long it took for him to get to

the police station because he was high and drowsy, having only been asleep for

approximately thirty minutes when he was awakened by police. He could not recall

whether anyone advised him of his Miranda rights. He said that the officers placed him

in an interrogation room, and he “put [his] head down and went to sleep.” He could not

remember how long the interrogation lasted but noted that the “paper” showed it lasted

seven and a half hours. He claimed he was “in and out” of consciousness during the

interview. With regard to the effect of the drugs wearing off, the petitioner said,

“[Y]ou’re high till you get at least a[n] eight-hour sleep in order to get back functioning.”

The petitioner admitted that he told the officers a false story that he was in

Nashville with a friend on the night in question before ultimately confessing to the

murder. Asked why he changed his story, the petitioner explained, “When you been

arising really to try to get away from people and scared, it’s no telling what you will do

when you’re high or sober.” He elaborated, “I couldn’t tell you why it changed. It just

changed because I believe because I was scared.” He claimed that he was threatened “a

lot of times.” In particular, the officers told him that they were “going to lock [him] up

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for the rest of [his] life if [he] d[id]n’t tell the truth.” At one point, an officer told him

that he was free to go, but he was unable to do so because his ankle was cuffed to a chair.

The petitioner admitted that the officers confronted him with images of himself at

a gas station and told him that they had spoken with his co-defendant. He said that the

officers told him that he would be set free if he told them “what they showed [him] on a

paper that suppose [sic] to be [his] charge partner wrote down.” He clarified that the

officers wanted him to write down verbatim the contents of his co-defendant’s statement.

The petitioner said that he complied because he was in and out of consciousness and

wanted to get some more rest and drugs. However, even though he claimed to be in and

out of consciousness, the petitioner recalled the interrogation, answering the officers’

questions, and being able to write his statement. The petitioner recalled that his case was

featured on “The First 48” television show, but he did not remember seeing the camera

until after the interrogation ended and he was booked. However, he remembered the

officers’ talking about it. The petitioner claimed that he was arrested on September 24,

2007, but was not taken before a judge until September 27, 2007.

The petitioner testified that he attempted to seek interlocutory review of the trial

court’s ruling on the motion to suppress. According to the petitioner, he and trial counsel

did not discuss the suppression hearing beforehand, so he did not know what to expect.

He asked trial counsel to appeal the trial court’s suppression ruling, but trial counsel

advised him to address it on direct appeal. The petitioner stated that he was satisfied with

the witnesses trial counsel presented at the suppression hearing, but he was dissatisfied

that counsel failed to ask those witnesses certain questions. During counsel’s

representation of him, the petitioner provided counsel with legal authority and various

motions, but counsel told the petitioner that the motions were frivolous. The petitioner

said that he wanted trial counsel to look at the door to his girlfriend’s house where he was

arrested, so counsel could see that the door was broken and that it would have been easy

for the police to “pry it open and just go in.”

The post-conviction court sought clarification as to what the petitioner was

challenging regarding trial counsel’s performance during the suppression hearing

considering that the trial court ruled that the petitioner’s arrest was illegal, but, because

the police had probable cause to arrest him, his confession was not fruit of the illegal

arrest. The petitioner said that trial counsel “argued . . . [the petitioner’s] statement but

[counsel] didn’t argue that they came and arrest[ed] [the petitioner] illegally, [counsel]

just argued the statement.” Post-conviction counsel then clarified that trial counsel failed

to dispute that the police had probable cause to arrest the petitioner. The post-conviction

court disagreed, noting that the State presented evidence supporting a finding of probable

cause at the suppression hearing.

-13-

The petitioner testified, with respect to the trial, that he felt trial counsel should

have hired a blood splatter expert. He also mentioned that it was trial counsel’s decision

that the petitioner not testify because “[counsel] felt that he would win without [the

petitioner] testifying.” The petitioner was dissatisfied that trial counsel did not have a

surrebuttal prepared. He said that his girlfriend, his girlfriend’s son, and the boy who

answered the door to his girlfriend’s home the night he was arrested could have been his

alibi witnesses. He claimed he provided those names to trial counsel, but “[counsel]

didn’t do nothing.” He also claimed that he never gave a statement of admission to

Sheila Dixon. After further inquiry by the post-conviction court, the petitioner reiterated

his dissatisfaction with trial counsel’s not calling a blood splatter expert in rebuttal, not

calling his co-defendant to testify, not impeaching Sheila Dixon, and not obtaining “The

First 48” video footage. He also said that trial counsel “should [have] brought in proof

showing that the evidence within the whole entire case was not substantial to prove the

statement.” He further said that the State should have had the footage from “The First

48” that was filmed during his interrogation.

Sergeant1 Anthony Mullins testified that in 2007, he worked as a detective for the

Memphis Police Department’s Homicide Bureau. Sergeant Mullins was not the arresting

officer, but he interviewed the petitioner and co-defendant. Asked about his typical

practice regarding arresting or interrogating suspects, Sergeant Mullins said that he may

ask a suspect to voluntarily come in for an interview even though he had probable cause

to arrest him or her. He elaborated that he preferred to interview a suspect to ensure that

formal charges were appropriate because he had arrested people in the past for crimes

they did not commit “because they weren’t vetted enough.” Although he could not recall,

Sergeant Mullins assumed that the arresting officers had probable cause to arrest the

petitioner if they brought him to the police department in order to be interviewed.

Sergeant Mullins testified that he did not typically issue a warrant based solely on

a co-defendant’s statement, but a co-defendant’s identification of someone as being

involved “would be enough for [him] to want to talk to whoever they name.” He could

not remember whether anyone other than the co-defendant had implicated the petitioner

in the crime, but he did recall that the police had recovered property and seen surveillance

footage linking the petitioner to the crime.

Sergeant Mullins could not recall how long his interview of the petitioner lasted,

nor did he recall the petitioner’s asking to leave at any point. He said that the petitioner

did not appear to be intoxicated during the interview but, rather, was lucid, alert, and

1

At the time of the post-conviction hearing, Sergeant Mullins had been promoted to the rank of

Lieutenant. However, we will refer to him by the rank of Sergeant to be consistent with the evidence and

testimony presented in the petitioner’s trial.

-14-

gave appropriate responses to questions. Sergeant Mullins said he had been in an

interview room with an intoxicated person, and, in that situation, he did not interview that

person. Contrary to the petitioner’s assertion, Sergeant Mullins said that the petitioner

was not in and out of consciousness or falling asleep during the interview. He stated that

if a person were falling in and out of consciousness, he might have called an ambulance

for that person but certainly would not have continued the interview.

Upon questioning by the post-conviction court, Sergeant Mullins briefly

referenced the “forty-eight-hour hold” procedure utilized by the police department during

that time period:

At . . . the time we’re talking about, we used the forty-eight-hour hold.

Where if we had the probable cause we’d put them on a hold and that might

be the reason for the hold, in essence, is we had significant information but

this person is so intoxicated or I’ve had people that needed medication, so

we stopped the interview. I’ve had people that . . . could barely sit up when

they were brought into our office, so . . . if it were applicable we’d put them

in the jail.

Upon further questioning by post-conviction counsel, Sergeant Mullins elaborated

that the forty-eight-hour hold was not only used when a suspect was intoxicated.

Sergeant Mullins explained how it was sometimes used before a suspect was charged:

If, for example, I may have enough to . . . charge this person with a crime,

and in this case a murder, and maybe it’s just a quirk on my part but I don’t

-- it’s too serious for me to say, hey, I got just enough to charge him, so

let’s just charge him and be done with it. We would use the forty-eight-

hour hold, we would have people that were in the hospital, we can’t talk to

them. Maybe they didn’t do it but we can’t ask them because they’re

knocked out under the influence of narcotics. We’ve had people that we

would get them in at our office late in the evening and we may begin the

interview and they say, look, I’m tired. We’ve got enough that . . . we just

can’t in good conscious just let them go. And we had that tool available, so

we used it. Quite frankly, we used the forty-eight-hour hold.

Sergeant Mullins also recalled “The First 48” television show that was filmed in

Memphis during that time period. His understanding from the producers of the show was

that all the footage was shipped to New York and that any footage the producers decided

not to use was destroyed. He was aware of other lawyers and courts attempting to get

footage from the producers, but he was not aware of any being successful. Sergeant

Mullins agreed that the entire six-hour interview of the petitioner was not aired on the

-15-

television show, meaning “[t]he other five and a half hours w[ere] cut on the editing

floor.”

Detective Joe Stark testified that he worked as a detective for the Memphis Police

Department’s Homicide Bureau in 2007 and was the case coordinator in the petitioner’s

case, meaning he managed the investigation and determined whether to issue an arrest or

search warrant. Detective Stark stated that the homicide bureau typically did not seek an

arrest warrant for a suspect in a homicide case but, instead, attempted to interview the

individual before formally charging him or her in order to make sure the person did not

have a “plausible explanation” for the evidence against him or her.

Detective Stark testified that officers discovered the body of the victim in his truck

on September 17, 2007. They then spoke to witnesses who had seen a green Saturn with

a broken, taped-up back window parked next to the victim’s truck. One of the witnesses

was very specific about the make and model of the car because his wife owned a similar

one. Another witness, Theresa Rucker, saw the Saturn in the immediate vicinity of the

crime scene and noted that it was driven by an African-American man with a passenger

who was also African-American, although she was not positive of the passenger’s gender.

The officers subsequently found a surveillance video that showed the Saturn pull into a

nearby convenience store parking lot and then, seconds later, showed the petitioner trying

to use an ATM inside the store.

Officers arrested the co-defendant, Calvin Nelson, who was seen driving a Saturn

matching the description, and recovered the murder weapon from information received

from Mr. Nelson. Mr. Nelson told the officers that the petitioner “was the one that pulled

the trigger.” Officers also questioned Sheila Dixon who was found with the victim’s

credit cards in her possession. Ms. Dixon said that she received the credit cards from the

petitioner, but she was not able to testify whether the petitioner was at the scene of the

murder. Detective Stark described Mr. Nelson and Ms. Dixon as co-defendants and

could only recall one other person implicating the petitioner, although “it was going to be

like a hearsay type thing.” He admitted that he did not issue a warrant for the petitioner’s

arrest prior to having him brought in for questioning, but Detective Stark believed he

“had enough to charge him for the first degree murder.”

Detective Stark explained when a “forty-eight-hour hold” was used: “[B]asically

when it would get late at night or we feel like there was something else to do. But before

you put somebody on a forty-eight-hour hold we always had enough to charge them with

a charge.” He recalled that the petitioner gave a confession during the forty-eight-hour

hold. Detective Stark recalled that the petitioner was arrested without a warrant on

September 24, 2007, at 3:30 p.m., and he sought a judicial determination of probable

cause on September 26, 2007, at 1:05 p.m. Detective Stark believed that even if the

-16-

petitioner had not given a confession, there was still enough evidence to charge him with

murder.

Trial counsel testified that the petitioner was “easy to get along with and wasn’t

very demanding of the things he thought [counsel] should be doing.” He recalled that the

petitioner would ask him “what [they] were going to do and [counsel] would tell him

what [counsel’s] plan was and he and [counsel] were on the same page, . . . pretty early

on.” He did not remember having any disagreements with the petitioner or “not doing

things [the petitioner] wanted [him] to do.” Trial counsel said that his usual practice was

to file a boilerplate motion to suppress and then a more specific memorandum in support

or an amended motion after he had an opportunity to review the evidence. However, he

recalled that as the suppression hearing proceeded, he realized that he needed to call other

witnesses and had the hearing bifurcated twice to allow for further testimony.

Trial counsel acknowledged that he never requested the unedited footage of “The

First 48” television show that featured the petitioner’s case. However, he elaborated that

the reason he did not do so was because, in another case he had handled, he contacted the

producer about getting such footage and was informed that any footage not aired on the

show was destroyed. He made this phone call within months of his representation of the

petitioner and did not “duplicate” it just to be told again that the producers no longer had

the uncut footage. Moreover, although there was one three-second portion of the final

video that was helpful, it also captured the petitioner’s confessing to shooting the victim

and corroborated part of the State’s case.

Trial counsel testified that the petitioner did not have any interest in testifying.

The petitioner never asked him to hire a blood splatter expert, nor did trial counsel know

what retaining such an expert “would have accomplished in [the petitioner’s] favor at his

trial.” The petitioner never suggested that he was not at the crime scene or gave trial

counsel the names of any witnesses to look for.

Trial counsel testified that he did not argue at the suppression hearing that the

police lacked probable cause to arrest the petitioner because he did not think it was a fight

he would win in light of the State’s evidence. He tried not to raise frivolous or fruitless

arguments with the court because doing so could damage his credibility. Regarding the

length of the petitioner’s detention, trial counsel noted that the petitioner confessed six

hours after being brought into custody and that Sergeant Mullins provided a reasonable

explanation for why it took that long. Trial counsel described the petitioner as a “silent

partner” at the suppression hearing, making no requests of trial counsel to do additional

work.

-17-

Following the conclusion of the hearing, the post-conviction court denied the

petition. With regard to “The First 48” television show, the court noted that trial counsel

and attorneys in other cases had made efforts to obtain video footage from the show but

that once the show’s producers edited the program, any unused footage was destroyed.

The court also noted that some aspects of the show were staged and not always shown in

sequential order. The court determined that the video would have been inadmissible due

to the alteration and editing. The court, therefore, found that the petitioner did not

establish ineffective assistance of counsel on this ground.

Regarding the petitioner’s motion to suppress, the post-conviction court noted that

trial counsel had successfully litigated the legality of the petitioner’s arrest at the

suppression hearing but that the trial court and this court had found that the arrest was

supported by probable cause and that the petitioner’s statement was therefore admissible.

The post-conviction court found again that the petitioner’s arrest was supported by

probable cause due to the statements of Mr. Nelson and Ms. Dixon, corroboration from

witnesses who saw the car in the vicinity, and the petitioner’s being seen in the

immediate vicinity. The court further found no ineffectiveness in trial counsel’s failure to

argue that there was no probable cause because trial counsel, “an experienced long-

seasoned veteran criminal trial lawyer who’s tried many homicide charges,” felt there

was no basis for such an argument. The court also rejected the petitioner’s forty-eight-

hour hold argument, finding that the petitioner was not unduly delayed and was brought

before a magistrate within forty-eight hours of his arrest. The court determined that the

petitioner was not under the influence or unable to give a knowing and voluntary

statement. The court ultimately found that trial counsel was not ineffective and provided

“very proper representation” that was “very effective in the manner in which he defended

[the petitioner].”

ANALYSIS

In this appeal, the petitioner alleges that trial counsel was ineffective for (1) failing

to argue that the petitioner’s arrest was not supported by probable cause; (2) failing to

argue that the police unreasonably delayed in seeking a judicial determination of probable

cause; and (3) not attempting to obtain the unedited footage from “The First 48”

television show. The petitioner also sets forth the additional argument that his due

process rights were violated by the State’s failing to preserve unedited footage from “The

First 48” television show.

The post-conviction petitioner bears the burden of proving his allegations by clear

and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary

hearing is held in the post-conviction setting, the findings of fact made by the court are

conclusive on appeal unless the evidence preponderates against them. See Tidwell v.

-18-

State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely

factual issues, the appellate court should not reweigh or reevaluate the evidence. See

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s

application of the law to the facts of the case is de novo, with no presumption of

correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective

assistance of counsel, which presents mixed questions of fact and law, is reviewed de

novo, with a presumption of correctness given only to the post-conviction court’s

findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6

S.W.3d 453, 461 (Tenn. 1999).

I. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland

standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a

“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a

reasonable probability that were it not for the deficiencies in counsel’s representation, he

or she would not have pled guilty but would instead have insisted on proceeding to trial.

-19-

Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn.

2001).

Courts need not approach the Strickland test in a specific order or even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim”).

A. Arrest Supported by Probable Cause

The petitioner first argues that trial counsel was ineffective because he failed to

argue in the motion to suppress that the petitioner’s arrest was not supported by probable

cause.

“Probable cause . . . exists if, at the time of the arrest, the facts and circumstances

within the knowledge of the officers, and of which they had reasonably trustworthy

information, are ‘sufficient to warrant a prudent [person] in believing that the [defendant]

had committed or was committing an offense.’” State v. Echols, 382 S.W.3d 266, 277-78

(Tenn. 2012) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)).

At the post-conviction evidentiary hearing, trial counsel testified that he did not

argue at the suppression hearing that the police lacked probable cause to arrest the

petitioner because he did not think it was a fight he would win in light of the State’s

evidence and that he tried not to raise frivolous or fruitless arguments because doing so

could damage his credibility. In its order denying the petition, the post-conviction court

found that trial counsel was not ineffective for failing to argue that the petitioner’s arrest

was not supported by probable cause because trial counsel, “an experienced long-

seasoned veteran criminal trial lawyer who’s tried many homicide charges,” felt there

was no basis for such an argument. The post-conviction court found that the petitioner’s

arrest was indeed supported by probable cause and noted that this court also determined

such on direct appeal.

Upon review, we conclude that the record supports the post-conviction court’s

determination. At the time of the petitioner’s unlawful arrest, the police had information

that witnesses saw a turquoise Saturn with a broken and taped-up rear window parked

next to the victim’s truck in which his body was found. One witness told the police that a

Saturn matching that description sped by her around 2:00 a.m. the day of the murder.

The witness recalled that the driver was an African-American male and the passenger

was also African-American, although she was not sure whether the passenger was male

or female. Officers obtained surveillance video from a nearby convenience store that

-20-

showed the Saturn pulling into the parking lot and, seconds later, the petitioner

attempting to use an ATM inside. The officers identified the co-defendant as being

involved in the offense, and the co-defendant provided a statement implicating the

petitioner in the crime and providing information that led to the murder weapon. The

officers questioned Sheila Dixon, who was found with the victim’s credit cards in her

possession and said she received the cards from the petitioner. All of this information

was known by Detective Stark when he directed the arresting officer to locate and arrest

the petitioner. As this court determined previously on direct appeal, these facts were

sufficient to warrant a prudent person in believing that the petitioner was involved in the

murder. Therefore, trial counsel was not deficient for failing to argue that the petitioner’s

arrest was not supported by probable cause.

Even if the petitioner’s arrest was not supported by probable cause, his subsequent

statement to police may still be admissible if it is not “fruit of the poisonous tree.” See

State v. Johnson, 980 S.W.2d 414, 423 (Tenn. Crim. App. 1998). “[T]he primary inquiry

is ‘whether [the statement] was sufficiently an act of free will to purge the primary taint

of the unlawful invasion.’” Id. (quoting Brown v. Illinois, 422 U.S. 590, 599 (1975)). In

making this determination, courts are to consider: (1) the presence or absence of Miranda

warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of

intervening circumstances; and finally, of particular significance, (4) the purpose and

flagrancy of the official misconduct. Id. (quoting State v. Huddleston, 924 S.W.2d 666,

674 (Tenn. 1996)).

In this case, first, the petitioner was provided multiple Miranda warnings. This

court has previously rejected the petitioner’s argument that he was intoxicated, and the

testimony at the post-conviction hearing likewise indicates that he was not intoxicated.

Second, there was a relatively short time period between the petitioner’s arrest and the

giving of his statement. Third, before giving his statement to the police, the petitioner

first gave an elaborate, false story to the officers that was arguably an intervening

circumstance demonstrating that the petitioner’s later decision to confess was an act of

free will. Lastly, the testimony at the post-conviction hearing indicates that the officers

believed they had probable cause to arrest the petitioner and only sought to interview him

before obtaining an arrest warrant to ensure that the charges were appropriate.

B. Unreasonable Delay

The petitioner next argues that trial counsel was ineffective because he failed to

argue in the motion to suppress that the judicial determination of probable cause was

unreasonably delayed.

-21-

A judicial determination of probable cause that occurs within forty-eight hours of

a defendant’s arrest is generally sufficient to satisfy the Fourth Amendment, unless there

is evidence that the probable cause determination was unreasonably delayed for the

purpose of gathering additional information to justify an arrest, was motivated by ill will

toward the defendant, or constituted a “‘delay for delay’s sake.’” Huddleston, 924

S.W.2d at 672 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)).

“[I]f the statement was given prior to the time the detention ripened into a constitutional

violation, it is not the product of the illegality and should not be suppressed.” Id. at 675.

In ruling on this issue, the post-conviction court found that “there was [no] issue

that [trial counsel] could [have] raised” because the petitioner was brought before a

magistrate within forty-eight hours and there was “enough probable cause at that point to

hold him and charge him.” Upon our review, we likewise discern no ineffectiveness on

trial counsel’s part. The evidence shows that the petitioner was arrested at 3:30 p.m. on

September 24, 2007. He was read his Miranda rights at 5:24 p.m., began giving his

typewritten statement at 11:50 p.m., and finished his typewritten statement at 12:42 a.m.

the following day. The magistrate made a probable cause determination on September

26, 2007, at 1:05 p.m., within forty-eight hours of the petitioner’s arrest.

The petitioner has failed to show that this presumptively reasonable delay was

done for an impermissible reason. When the petitioner was brought to the police

department, the officers had sufficient probable cause to support his arrest. Although

Sergeant Mullins interviewed the petitioner to ensure that it was appropriate to charge

him and that the petitioner did not have a “plausible explanation” for the evidence against

him, he did not seek to gather additional information to justify the arrest. Trial counsel

was not ineffective for failing to assert a meritless argument.

Moreover, even if the delay was unlawful, the confession was not “fruit of the

poisonous tree” requiring suppression of the statement. See Huddleston, 924 S.W.2d at

674. In making this determination, we consider: (1) the presence or absence of Miranda

warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of

intervening circumstances; and finally, of particular significance, (4) the purpose and

flagrancy of the official misconduct. See id. at 674-75 (considering these factors in the

context of a Gerstein2 violation). Here, the petitioner was provided multiple Miranda

warnings, his statement was provided well within the forty-eight-hour time period, his

first giving a false story to the officers was arguably an intervening circumstance

dissipating the taint of any illegal detention, and the delay was not for some flagrant

reason but to provide the petitioner an opportunity to explain the evidence against him.

2

In Gerstein v. Pugh, 420 U.S. 103, 125, the United States Supreme Court determined that the

Fourth Amendment mandates a prompt judicial determination of probable cause as a prerequisite to any

extended restraint of liberty after a warrantless arrest.

-22-

C. Television Footage

The petitioner next argues that trial counsel was ineffective because he did not

attempt to obtain the unedited footage of his arrest and the investigation from “The First

48” television show.

At the post-conviction hearing, trial counsel acknowledged that he did not request

the unedited footage of “The First 48” television show that featured the petitioner’s case.

However, he elaborated that the reason he did not do so was because, in another recent

case he had handled, he contacted the producer about getting such footage and was

informed that any footage not aired on the show was destroyed. He made this phone call

within months of his representation of the petitioner and did not “duplicate” it just to be

told again that the producers no longer had the uncut footage. Sergeant Mullins testified

at the post-conviction hearing that his understanding from the producers of the “The First

48” television show was that all the footage was shipped to New York and any footage

that the producers decided not to use was destroyed. He was aware of other lawyers and

courts attempting to get footage from the producers, but he was not aware of any being

successful. The petitioner has failed to prove that trial counsel was deficient for failing to

needlessly duplicate a phone call.

Moreover, the petitioner has failed to establish prejudice. In order to succeed on a

claim that counsel did not properly investigate or call favorable witnesses at trial, a

petitioner must generally elicit favorable testimony from those witnesses at the

evidentiary hearing, as a post-conviction court may not speculate “on the question of . . .

what a witness’s testimony might have been if introduced” at trial. Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990). This court has recently emphasized that the

requirements in Black are true for witnesses who should have been called and for any

evidence the petitioner claims should have been discovered and presented. See Randall

K. Madison v. State, No. M2014-01942-CCA-R3-PC, 2015 WL 9488951, at *15 (Tenn.

Crim. App. Dec. 29, 2015). “Failure to do so requires that the claim be denied since the

court may not speculate as to the contents of the missing evidence.” Id. Therefore, even

if trial counsel should have duplicated the phone call to the show’s producers, the

petitioner has not established prejudice because he did not present the raw footage at the

post-conviction hearing. The petitioner “ask[s] that this Court make an exception” to this

general rule because of the “strong likelihood that the unedited footage would have been

beneficial to his case.” However, the petitioner supports this assertion with nothing other

than speculation, and “strong likelihood” is not the relevant standard but instead the

petitioner must establish his factual allegations by clear and convincing evidence. See

Tenn. Code Ann. § 40-30-110(f).

-23-

II. Due Process

The petitioner lastly argues that his due process rights were violated under State v.

Ferguson, 2 S.W3d 912 (Tenn. 1999), by the State’s failing to preserve unedited footage

from “The First 48” television show. He asserts that the State should have confiscated

the footage before the producers left the city. The petitioner, however, failed to raise this

issue in the trial court, in his motion for new trial, on direct appeal, or in his post-

conviction petition. The petitioner asserts in a footnote that he raised a Brady3 issue and

that it should be considered a Ferguson issue because the case involves lost or destroyed

evidence. However, the petitioner provided no authority for this proposition. Moreover,

the petitioner raised his prosecutorial misconduct claim citing Brady in a pro se amended

petition filed after the post-conviction court had appointed counsel. We note that a

person who is represented by counsel may not simultaneously proceed pro se. See State

v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); State v. Lyons, 29 S.W.3d 48, 51 n.2

(Tenn. Crim. App. 1999). The petitioner also maintains that he should be able to raise

this issue “for the first time in the post-conviction court.” However, he cites no authority

for this proposition either. The petitioner has waived this issue for numerous reasons and

may not pursue it now before this court.

In addition, the petitioner acknowledges that this court has held that the “[S]tate is

not obliged to furnish the appellant with information, evidence, or material which is

available or accessible to him or which he could obtain by exercising reasonable

diligence.” State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993). Further,

citing to a number of cases, the petitioner acknowledges that Tennessee courts have

repeatedly stated that the State is not required to turn over material that was not in the

possession or control of the State when it was lost. See, e.g., State v. Hutchison, 898

S.W.2d 161, 168 (Tenn. 1994); State v. Middlebrooks, 840 S.W.2d 317, 333 (Tenn.

1992); State v. Carter, 682 S.W.2d 224, 226 (Tenn. Crim. App. 1994); State v. Fox, 701

S.W.2d 233, 236 (Tenn. Crim. App. 1985); State v. Ladarron S. Gaines, No. M2013-

02272-CCA-R3-CD, 2014 WL 4179123, at *8 (Tenn. Crim. App. Aug. 22, 2014); State

v. Yevette Somerville, No. W2001-00902-CCA-R3-CD, 2002 WL 1482730, at *4-5

(Tenn. Crim. App. Feb. 11, 2002).4 However, the petitioner urges this court to determine

3

See Brady v. Maryland, 373 U.S. 83 (1963).

4

The only contrary authority the petitioner cites is State v. Sheri Lynn Cox, Alias, No. E2005-

00240-CCA-R3-CD, 2005 WL 3369257, at *3 (Tenn. Crim. App. Dec. 12, 2005), in which this court

considered a Ferguson claim regarding receipt books, although there was no evidence the receipt books

were in police custody. However, in that case, the receipt books were exchanged in the presence of a

police officer in order to confirm a shortage of money for which the defendant was later prosecuted. Id.

at *1. Thus, the police allowed the victim organization to retain the receipt books in order to determine

the amount of the loss at issue but never collected them.

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that the State had a duty to collect the unedited footage from the private actor “The First

48” television show because the private actor was filming a “state activity,” yet he

provides no authority for this distinction. The footage was never in the State’s

possession, and the State had no duty to confiscate it. Even if this issue is not waived, the

petitioner is not entitled to relief.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the

petition.

_________________________________

ALAN E. GLENN, JUDGE

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