### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 2000 Session
RICKY LEE BEAMON v. STATE OF TE NNESSEE
Appeal from the Criminal Court for Hamilton County No. 217089 Douglas A. Meyer, Judge

No. E1999-00614-CCA-R3-CD September 8, 2000

This appeal arises from the trial court's denial of the petitioner's post-conviction petition. On December

1, 1996, the petitioner was found guilty by a Hamilton County jury of aggravated burglary and theft over $500. The convictions we re affirmed on a

ppeal. On August 4, 1997, the petitioner filed a pro se petition forpost-conviction relief, which was denied by the trial court after an evidentiary hearing. The pet itioner now appea

ls the denial of his

petition. After

careful review, we affirm the judgme

nt of the trial cour

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

A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and T HOMAS T. W OODALL , JJ., joined.

Laura Rule, Knoxville, Tenn ess ee (on appeal) and Charles Dupr

ee, Chattanooga,

Tennessee (at tr

ial) for the appellant, Ricky Lee Beamon.

Paul G. Su mmers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attor ney General ; William H. Cox, III, District Attorney General; and Bates W. Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On March 4, 1994, Laura and James Pettit’s home was burglarized. The thief took pro perty valued at approximately $1, 400, w hich included an antique pocket watch, Mrs. Pettit’s wedding band, a blue stone ring, a green stone ring, a violin and case, and a trombone case. Prior to the trial, Mr. Pettit could not identify the burglar for police but identified the petitioner, as the man h e had
seen with the stolen items , when he saw him in the courtroom. The police subsequently found some of the stolen items at a pawn shop, which led them to Gertrud e H all. Ms. Hall had sol d the items for the petitioner’s s

ister, Ellen Beamo

n. This trail

e ventually led authorities to the petitioner himself. On May 24, 1995, a jury convicted him of aggravated burglary and theft over $500, and he was sentenced a

s a career off

ender (60%) to c

oncurrent sente

nces of fifteen

years and six yea

rs. The convictions were affirmed by this court on December 4, 1996, and permission to appeal to the-2-

supreme court was denied on July

9, 1997. State v. Beamon , No. 03C01-9601-CR-00030, 1996 WL 698962 (Tenn. Crim. App., Knoxville, Dec. 4, 1996), perm
. app
. denied , (Tenn. 1997).

Less than a month later, the petitioner filed a pro se petition for post-conviction relief claiming ineffective assistance of trial counsel, withholding of exculpatory evidence by the State, and the use of

“illegal” evidence at trial to convict him. An evidentiary hearing was held on September

10 and November 30, 1998, after which the trial court denied the petition. The petitioner
now appeals to this court on the issue of ineffective assistance of counsel. Upon careful review of the record, we find that the evidence doesnot preponderat e against the trial court’s decision to deny the post-convicti

on petition and, the

refore, affir

m the judgment of the

trial court.

STANDARD OF REVIEW

Because the defendant fi

led his pro se petition on August 4, 1997, it is governed by the 1995 Post-Conviction Procedure Act. At the evidentiary hearin g, the defendant bears the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f); Hicks
v. Sta te , 983 S .W.2d 240, 245 (Tenn. Crim. App.), perm. app. denied , (Tenn. 1998). Clear and convincing evidence means that there is “no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hicks , 983 S.W. 2d at 24 5 (citing Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). On appeal, we are bound by the trial court’s findings of fact unless the record preponderates against those findings. Hicks , 983 S.W.2d at 245.

When ineffective assistance of counsel is alleged, a convicted defendant must show two things before a reve

rsal of his convic

tion is required: ( 1) that counsel’s performance w

as deficient; and (2) that such deficient performance prejudiced the defendant. Stric kland v. Was hington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To prove deficient performance of counsel, the defendant must show that counsel made such seri ous error s that he or she was not functioning as counsel envisioned by the Sixth Amendment. Id. This inquiry focuses on whether counsel’s assistance was reasonable under the circumstances and is treated very deferentially by the
cour t. Id. , 466 U.S. at 688-89, 104 S. Ct. at 2065. There is a strong presumption on appeal tha t counsel’s conduct falls with in the range of re

asonable profe

ssional performa

nce, and we must evaluate counsel’s perf

ormance from his or her perspective at the time of the alleged error in the context of the totality of the circumstances. Hicks , 983 S.W.2d at 246. In Tennessee, the evidence showing that an attorney f ailed to prepare a sound defense or to present witnesses must be substantial before ineffective assistance of counsel will be found. Id.

To p rove prejudice,

the defendant mus

t show that counsel ’s errors were so serio us that h e was deprived of a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. In other words, even if error oc curred by counsel, a conviction is not to be set aside if the error had no effect on the outcome of the trial. Id. , 466 U.S. at 691, 104 S. Ct. at 2066.

The petitioner in the present case alleges a number of things that his trial attorney failed to do in developing a trial strategy and in properly investigating the facts of the case. Specifically, he alleges that his trial attor ney failed to inte

rview or subpoena

a favorable witn

ess, Claude Jones;1 In other po rtions of the transcript, this e yewitne ss is referred to as “Carl” Jo nes. We will use “Claude” Jones

for conti nuity.
-3- failedt o interview G regory Herkley, who was first identified as the robber; failed to validate the value of the items taken; failed to investigate whether Ellen Beamon was threatened unless she changed her story; failed

to secu re any expert wi tness to show the unr

eliability of eyew

itness testimony; and failed to

advise the petitioner that the State had filed notice of intent to seek enhanced punishment. A review of the record shows that these claims are without merit.

The petitioner testified at

the post-conviction hearing that his trial attorney told him that the maximum sentence he would receive was ten year s. His attorney, who was the petitioner’s third lawyer, refuted this testimony and produced a letter from the prosecutor, dated approximately two months prior to the trial, offering the petitioner eighteen years at 45%, which the petitioner rejected. The pe titioner stated at trial that he would have rejected an offer of a twelve-year sent ence. Hi s attorney stated that

the petitioner was fully aware of his fifteen-year exposure as a career cr iminal but chose to go to trial. Failure to Investigate

The petitioner further testified that his attorney did not interview a ke y defense witness, Claude Jones, 1 who apparently had seen the burglar running away from the Pettits’ house and identified him to police as Gregory Herkley. During discovery, the petitioner’s attorney learned that Herkley had an iron-clad alibi and felt that Jones’s testimony would only hurt the petitioner’s case. The attorney testified that he interviewed

all of the State’s witnesses before trial, and the petitioner didnot ask to have Mr. Jones subpoenaed to testify. At trial, the petiti oner’s attorney

vigorously cross-examined

the detective and Mr. Pettit about Jones and Herkley and directed the jury’s attention to the fact that Mr. Pettit originally told the police that he could not identify the robber but changed his story at trial. It w

as a lso brought out at trial that Gertrude Hall, Ms. Beamon’s friend who pawned the items, had originally told detectives that she did no t receive the stolen items from the petitioner’s sister butfrom her boyfriend, a lead that was not pursued by police. The attorney stated that he was trying to create reasonable doubt that the petitioner was the burglar. We will not second guess the attorney’s trial strategy. His performance was reasonable under the circumstanc es. Additionally, the petitioner cla ims th at his attorney failed to investigate Ellen Beamon’s (petitioner’s sister) claim

that the police threatened to take her children from her if she did not testify against the petitioner. Th

e petitioner’s at

torney testified a

t the post-convict

ion hearin

g that wh en he went to see Ms. Beamon at her home, she admitted that she had lied to the police when she to ld them initially that she received the stolen property from someone else and admitted that it was the petitioner who had given her the i tems to pawn. Ms. Beamon was a State’s witness at trial and testifi ed t hat the petitioner gave her the items. The petitioner’s attorney then cross-examined her about inconsistencies in

her statements to

police and the conflict betwee n her desire to te

ll the truth under oath and the love of her brother. A tape recordin g of Ms. Beamon was

also introduced in

to evidence in which she told a detective that the petitioner had given her the stolen property to pawn.-4-

Understandably, the attorney beli eved that Ms. Beamon’s testimony severely hurt the petitioner’s
case. Ms. Beamon could not be found to

testify for the petitioner at the post-conviction hearing. In the end, it appears that this witness was present at trial and did not help the petitioner’s case in any
w ay. We cannot see anything else that the attorney could have done to ascertain the substance o f this witness’s testi

mony and to protec

t his client from its d

amaging effect

s. Withholding of Evidence

T he petitioner’s related allegation that the State withheld evidence that someone els e committed the crime is likewise without meri t. The St ate gave the petitioner’s counsel evidence linking the petitioner to the robbery through other witnesses, and the attorney had information about Herkley’s alibi. At the post-conviction hearing, the petitioner’s attorney testified that it was brought outduring t he trial that the police had confirmed Herkley’s alibi. Mr. Pettit made an in-court identification of the petitioner, and the petitioner’s sister gave very damaging testimony linking the petitioner to the crime. It is d

ifficult for us to conceive of how more information from the State on Herkley’s alibi could have exonerated the petitioner. Additionally, the petitioner has not offered any evidence to support his claim that the State withheld fingerprint evidence on two of the stolen items, a violin and trombone, and, thus, has failed to carry his burden of proof on this issue. Value of Stolen Property

The petitioner’s contention that his attorney failed to show the p roper value of th

e property stolen is likewise without m erit. He alleges

that his attorney r

efused to intervi

ew th e pawn shop
owner where some of the items were recovered to see what the actual value was pr ior to the trial and failedto have the items brou ght int o court so the jury could value them. At the post-conviction hea ring, the petitioner claimed that he called the pawn shop owner himself and was told that th e value was only $30-40, which would have reduced the theft charge to a misdemeanor. The petitioner agreed, however, that his attorney que stioned the shop owner at trial about the pawn shop value, which is not the market va lue, and the prope

rty owner, Mr. Pet

tit, also testified as to the value of the items. In addition, the attorney testified that he objected to the juryinstructions that did not include theft under $500, which was then added by the court. Therefore, the jury was allowed to consider the misdemeanor

theft but obviously rejected it. Finally, the petitioner offered no evidence at the post-conviction hearing of the value of the items and, therefore, fa iled to carry his b

urden to show that his attorney was ineffective in not establishing a different value than what was claimed by the State.-5- Eyewitness Testimony Expert

The petitioner has also claimed t hat his tria

l counsel was incompetent for not having an expert witness testify as t

o the unreliability

of eyewitness t

esti mony. This claim is also without merit. This court has rec ently spoken on the

questio n of expert testimon y regarding eye

witness identification in State v. Eddie L. Coley, Jr. , No. 01C01-9707-CC-00270, 1998 WL 712838 (Tenn. Crim. App., Nashville, Oct. 13, 1998) (Tipton, J., dissenting), perm

. appeal granted(Tenn. April 19, 1999). Citing State v. Wooden , 658 S.W.2d 553 (Tenn. Crim. App. 1983) and State v. Ward , 712 S.W.2d 4 85 (Tenn. Crim. App. 1986), this court concluded that “[a]s with any proferred exper t testimony, the admission of expert testimony on the pro

cess of eyewitness ide

ntification rema

ins a matter of the trial court’s sound discretion in each individual case.” Coley , 1998 WL 712838, at *3. Tennessee Rule of Evidence 702 a llows expert testimony if “scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue. . . .” The diss ent in Coley argued that there should have been a hearing as to the admissibility

of the expert eyewitness testimony, the witness’s certainty of identification having no positive correlation to accuracy contradicting the jury instructions as to the certainty of the witness testimony. Our

supreme court granted permission to appeal in Coley , oral argument be ing heard in February 2000.

We note that the trial attorney attempted to exploit what appeared to be problems in t h e State’s eyewitness proof

. The attorney te

stified at the post-

convictio n hearing that he thoroughly explored the discrepancy between Mr. Pettit’s and Claude Jones’s initial identification of Herkley
as the robber and Mr. Pettit’s subsequent courtroom identification of the petitioner during the trial
as the thief. Thus, the j ury had the conflicting eyewitness evidence before it. Additionally, the petitioner has not offered a

ny evidence that

expert testimony in

this r egard would have made any difference in t

his case. This issue

is without merit.

Even if the attorney’s

performance ha

d been deficien

t as al leged, we fail to see how the outcome of the trial was a

ffected. The Sta

te’s proof in this c

ase was unlike that in Coley , which consisted solely of the identification of the defendant by two witnesses. There was strong evidence presented against the petitioner, including the testim ony of his sister (Ellen Bea mon), Gertrude H

all, and the pawn shop ow ner. These w itnesses connected the stolen items to the petitioner independently

of Mr. Pettit’s courtroom identification. It was Ms. Beamon who received the stolen property from the petitione

r and gave it to

Ms. Hall to pawn for her. This court has already held on direct appeal that the evidence was sufficient to convict the petitioner beyond a reasonable do

ubt. None of the above actions or inactions by the petitioner’s attorney would likely have changed the jury’s guilty ver dict, and the petitioner has failed to carry the burden of showing prejudice in any event.-6- CONCLUSION Because the record does not preponderate against the trial court’s finding that the attorney provided effective coun

sel, we affirm th

e judgment of the tr

ial court in

denying the petitioner’s postconviction petition.

___________________________________ ALAN E. GLENN, JUDGE