### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON O ct obe r 7, 200 8 S es sio n

CU RTIS PA LME R v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 03-04188 Jame s M. Lamme y, Jr., Judge

No. W2008-00102-C CA-R 3-PC - Filed Marc h 9, 2009

The pe titioner, Curtis P almer, a ppeals the po s t -c o n v i ction court’s de nial of his petition for
po st- c on vic tio n r e lie f. On app e a l, h e arg ue s th a t he re c e ive d the ine ff e c tiv e a ssi stanc e of

c ou ns e l. Specifica lly, he argue s that his trial counsel was ine ffe ctive as f ollows: (1) coun s el admitted the
pe tit i o n e r ’ s g u i l td u r i n g t h e tr i a l w i t h o u tt h e p e t i t i o n e r ’ s c o n s e n t ; ( 2 ) c o u n s e l f a i l e d t o a d e q u a t e ly inv e sti gate po ssi ble gr ou nd s f or a sp e e dy tr ia l; ( 3) c ou ns e l faile d to c ha lle ng e inv a lidind ic tme nts ; and (4) counsel failed to properly lit igate the suppression of evidenc e. Af ter a thorough revie w of the re cord a nd the parties’ briefs, the judgment of the post-convic tion court denying post-convic tion relief is affirme d.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J. C. M C L IN , J

. , d e li v e r e d th e o p in io n o f th e c o u r t, in which D A V I D H. W ELL ES and T H O M A S T. W OOD ALL , JJ., joined.

Samantha R. Neuma nn, Memphis, Tennesse e, for the appe llant, Curtis P almer.

Rob e rt E. C o o p e r , J r

. , A tt o rn e y G e n e ra l a ndRe po rt e r; Da vidH. Fin dle y, As sis ta nt A tto rn e y G e ne ra l; W ill ia m L . G ibb on s, Di stric t A tto rn e y G e ne ra l; an d Da vidZa k, As sis ta nt D ist

ri c t A tto rn e y G e ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

BACKGROUND

Th e pe tit ion e r w a s c on vic te d o f t wo c ou nts of fi rs t de gr e e fe lon y mu rd e r. Th e re a ft e r, his convictions we re m erged and he was sente nced to life imprisonment without t he possibility of parole . The pe titioner appea led ar guing, int e r a lia , that he wa s denied the right to a speedy trial a nd that the trial court erre d in denying his moti ons to suppress. On di rec t appea l, this court affirmed the petitioner’s c onviction and sentenc e. State v. Curtis Palmer , No. W2004- 01748-CCA-R3-CD, 2005 WL 3416319 (Tenn. Crim. App., at Jac kson, Dec . 9, 2005), perm. app. de nied (Tenn. May 1,-2-

2006). The following is a rec itation of the convicting evide nce se t forth in this court’s opinion on dir e c t app e a l:

Patrice Johnson a nd the vi ctim, Patricia Mil ler, we re f riends and w orked toge ther at the Re gio na l Me dic a l Ce nte r i n M e mph is. Ms. Jo hn so n sai d tha t she re c e ive d a c a ll fr om the me dic a l c e nte r o n J a nu ary 1, 20 02 , b e c a us e the vic tim ha d not r e po rt e d to work that morning. Conce rned, Ms. Johnson drove to the victim's hom e and f ound a door ne ar the car

port cra cked open. Ms. Johnson called the police . Offic ers f ound the victim dead inside he r home.

Carmalita Har

ris, the victim’s daughter , said she staye d with a frie nd on New Y ear ’s Eve a nd spoke with he r mother by telephone around 12:45 a .m. on January 1, 2002. Ms. Har ris said that the vi ctim owned thre e ca r spea kers a nd an amplifier

which she

was attempting to s ell. The spea kers we re w hite, black, and re d, and the mate rial on the fa c e of

on e of the sp e ake rs wa s to rn . M s. Ha rris i de nti fi e d th e sp e ake rs fo un d in De fe nd a nt’ s c ar a s h e r m oth e r’ s.

Ms. Harris said she inspected he r bedr o o m afte r the victim was discove red. She fo un d v ari ou s it e ms o n h e r b e d w hic h w e re no t th e re the da y b e fo re , a nda bu lle t ho le in the ceiling. Her bedroom window was raised, and the air conditi o n er h ad b een

remove d.

Of fi c e r W ill ie Ma the na wi th the Me mph is Poli c e De pa rt me nt re sp on de d to th e c a ll from Ms. Johnson. Offic er Mathena f ound the victim lying on the floor in the de n. In Ms. Har

ris’ bedr oom, Office r Eric Freema n found a “ bullet strike ” on a bedside table, and notice d that the air conditioner had been taken out of the bedr oom window. Th e re wa s a

bu lle t hole in the c e ili ng . A bu lle t f ra gme nt w a s f

ou ndne ar the vic tim

, and a se cond bullet fra gment and thre e shell ca sings were found in the den.

Sergea nt Gera ld Crowson and S er g eant Todd Pierc e, with the Southhaven, Mississ ippi Pol ice De partment, observed Def endant drive his Chevy Caprice into a Blockbuster par

king lot around 6:00 p.m. on January 1, 2002. Def endant we nt inside the Blo c kb us te r s tor e . Se rg e a nt Pie rc e a sk e d De fe nd a nt to s te p o uts ide the sto re so he could a sk him a few que stions. S erge ant Pierce said that De fe n d ant was cooper ative. Serge ant Crowson looked in a window of Defe ndant’s ca r and notice d a two-tone, small caliber se miautomatic pistol l ying on the floorboar d of the drive r’s side of the c ar.

Offic er D anielle Mc Kenz ie, with the Horn La ke, Miss issippi Police Depa rtment, was dis patc he d to the sc e ne . She re a d De fe nd a nt h is Miranda ri gh ts. Of fi c e r M c Ke nz ie said that Def

endant told he r he did not “under stand what a n attorney w as.” O ffice r Mc Ke nz ie e xp la ine d th e ro le of a n atto rn e y a ndsa id that D e fe nd a nt a ppe are d to understand. O ffice r McKe nzie s ai d that the offic ers discove red thre e ca r spea kers and an amplifier in the trunk of De fendant’s vehicle.-3-

Sergea nt Nathan Ber

ryman with the Memphis Police De partment said that one of the victim’s friends told him she h ad spoken w ith the victim on the telephone ar ound 10:30 p.m. on Dec ember 31, 2001. The victim told her friend that s h e h ad an o ther call coming in and put the friend on hold. W hen the victim r eturne d to the line, she tol d th e frie ndthat sh e ne e de d to sp e ak to the ma n o n th e oth e r lin e abo ut se lli ng him her c ar spe aker s and amplifier . Def en d an t wa s identified as the c aller f rom the victim’s telephone c aller ide ntification box.

Sergean t B er ry man said that De fendant’s aunt ca lled the police de partment on Ja nu ary 2, 20 02 , a ndinf orme d th e m th a t De fe nd a nt h a d b e e n in c arc e rate d in Mississ ippi. Sergeant Ber ryman a nd Sergea nt Go ssett travele d to Hernando, Mis sis sip pi, a ndbe ga n in te rv ie wi ng De fe nd a nt at app rox im a te ly 5 :00 p. m. De fe nd a nt w a s r e a d h is Miranda rights and signed a waiver of those rights. Sergea nt Berryma n said that Def

endant wa s calm and a

ppear ed to under stand his rights. After of fe ri ng dif fe re nt v e rs ion s o f h ow he ha d ga ine d po sse ssi on of the sp e ake rs fo un d in the trunk of his ca

r, De fenda nt told S erge ant Berryman, “I messed up, didn't I.” Def endant a sked to spe ak to Ser geant Berryma n alone and implicated himself in the

c omm iss ion of

the ho mic ide of

the vic tim

. S e rg e a nt B e rryman r e a d D e fe nd a nt h is Miranda r ig h ts a s e c o n d ti me ar o u n d 6 :3 0 p

. m. , a n d D e f e n d a n t g a ve a w ritten
state me nt w hic h w a s r e a d to the jury d uring the tr ia l.

In his state me nt, De fe nd a nt sa id that he me t th e vic tim a fe w d a ys be fo re Christ ma s, and she told De fendant she had thre e ca r spea kers a nd an amplifier

for sa le. Def endant sa id that while he wa s trying to raise the c ash t o buy the equipment, he

a ndthe vic tim

be ga n see ing e a c h othe r soc ia lly

. De fe nd a nt sa id he c a lle d the vic tim

sever al times on Dec ember 31, 2001, but did not get an answe r. He went to the victim’s home “about eight something that night and parke d in the driveway.” The victim did not answer the door when he knocked and rang the doorbell. De fendant

s aid he went to the back of the house a nd took an air c onditioner out of one of the windows. He hear d the victim call out, “Who’ s there.” Def endant sa id he ra n away but decided to go ba ck. He j u m ped through the ope n window in the bac k of the h o u s e. He said the victim walked a way f rom him saying, “I’m f

ixin[g] to blow yo[ur] ass off.” Def

endant sa id he shot the victim five or six times with a .380 caliber handgun. Def

endant retrieve d the vi ctim’s car speake rs and amplifier from a room in the victim’s house a nd put them in the t runk of his car. D efe ndant said that the victim was sti ll breathing when he lef t. Defe ndant said he dr ove to Mississi ppi afte r stopping at a store to buy beer

, and asked a friend to hook up the speake rs and amplifier in his ca

r.

On cr oss-exa mination, Sergeant Ber ryman said that the she ll casings found at the victim’s home wer e .380 ca liber. He s ai d that differ ent kinds of wea pons were

c apa ble of fi ri ng .3 80 c a lib e r b ull e ts.

Dr. Te resa

Allen Campbell stated that she w as a forensic pathologist and performed an autopsy on the vic tim on January 2, 2002. Dr. Campbell said that the victim died-4-

as a r esult of multipl e gunshot w ounds. Dr. Campbell said that the absenc e of soot or gunpowde r on the victim’s clothing indicated that the shooter wa s standing more than t w o f

e e t a w a y f

r o m th e v ic ti m w h e n th e w e ap o n w a s f ir e d

. O n e b u ll et penetr ated the victim’s uppe r right back causing the right lung to hemorrha g e and collapse. D r. Campbell said t his wound was sufficie nt to cause death, although the vic tim c ou ld ha ve po ssi bly re c ov e re d fr om thi s wou nd if sh e ha d r e c e ive d im me diate medical treatment. A second bullet e ntere d the victim’s body in the m i d d l e o f her ba c k, tr a ve le d thr ou gh he r bod y, a nd pie rc e d h e r a bd omi na l w a ll. Dr . Campb e ll s a id this wound was also sufficie nt to cause death. Dr. Campbell said that there was not a lot of blee ding associated w ith the abdominal wound bec ause she believed that the victim had alre ady expir ed fr om the chest wo u nd. Two other bullets c aused superf icial wounds to the victim’s bac k and upper leg.

Id . at *1-3.

In Nove mber of 2006, the petitioner timely filed a pe tition f o r p ost-conviction re lief. There afte r, post-convic tion counse l w a s a p p o in te d

, aname n d e d

p e ti ti on was filed, and an evide ntiary hearing was held. At the hearing, the petit ioner c omplained that counse l informed the jury during closing argume nt that the petitioner wa s guilty “of something” without his consent. The petitioner the n r e a d a n e xc e rp t of co un se l’ s clo sin g ar gu me nt fr om the tr ia l tra ns c ri pt wh e re in co un se l said t o the jury, “la dies and ge ntlemen, I’m not telling you what you should find. I’m not telling you to let him go. What the [the petitioner] did is inexcusa ble. It’s a crime. The re is no question about it, and you’re going to convict him of a crime, but it’s your job to decide what that crime is.” The petitioner

asserted that counse l n ev er discussed with him the strategy of pur suing a conviction for a lesser

included off

ense.

Th e pe tit ion e r n e xt c omp la ine d th a t c ou ns e l impr op e rl y argue d th e iss ue of a sp e e dy tr ia l. The pe titioner said that counsel err o n eousl y argue d that the triggering date for the speedy tria l

mo t ion was the date of the indictment in 2003 rather than the date of the ar rest in 2002. The petitioner suggested that if the appe llate court would have unde rstood that his triggering date w as

earlier, he w ould have pr evailed on his spee dy trial issue. The petitioner also asse rted that c ounsel failed to c hallenge the validity of t he indi ctments, which lacked fa ctual allegations. The petitioner finally complained that counsel wa s ineffe ctive in fa iling to adequately ar gue suppre ssion of the gun

a t th e su pp re ssi on he ari ng ba se d o n a vio la tio n o f the Fou rth A me ndmen t. Th e pe tit ion e r a lso

asserted that counse l did not eff ectively cross-e xamine the office rs who testified at the suppr ession hearing.

On cr oss- ex am i n at i o n , t h e p et i t i o n erad m i t t ed t h atco u n s el cr oss-exa mined the police of

ficers about finding the gun. He also admitted that afte r hi s arr est, his car was impounded. How ever , he

a sse rt e d that the gu n wa s p ut i n h is c ar b y h is c o- de fe nd a nt andthat th e vic tim ’s pr op e rt y f ou ndin his ca r “happe ned to be ther e.” T he petitioner a lso asserted that he was tric ked into making a

c on fe ssi on to the mur de r o f the vic tim

.

Trial counse l testified that he began repr esentation of the petitioner in Novembe r 2003. Counsel rec ounted that the petitioner c onfesse d to police re vealing that he shot th e v i ct i m in her-5-

house and took the vic tim’s stereo equipment. Counsel also noted t hat t he poli ce f ound the stere o equipment and the gun used to mur der the victim in the petitioner’s ve hicle. Counsel re called that he inf orme d the pe tit ion e r that he wo uld try to supp re ss the gu n a ndpr op e rt y ta ke n f ro m th e vic tim along with the petit ioner’s state ment to police. Counsel also rec alled that he w arne d the petitioner that hi s c ha nc e s a t tria l w e re no t go oda nd rec omm e nd e d th a t th e pe tit ion e r t ake a ple a de a l if offe red. Counsel said that t h e p et i t i oner w as in total agre ement and ne ver de nied committing the crime. Counsel a lso pointed out that the petitioner admitted that he shot and killed the victim and took her prope rty while under oath during the sente ncing hea ring.

Counsel testified that his motion to suppr ess did not prevail, and as a r esult, the petitioner’s confe ssion was admitted into evidence and cor roborated by photographs, crime scene evidenc e, and wi tne ss t e sti mon y. Gi ve n th e ov e rw he lmi ng e vid e nc e a ga ins t th ep e ti ti o n e r , c o u n se l th ou gh t th e be st thing to do was to attempt t o p er s u ad e t h e jury to find the petitioner guilty of a lesser- included offe nse. Counsel said he attempte d t o u s e the pe titioner’s confe ssion which ref lected that the peti ti o n e r h a d a r e lati o n s h ip w ith th e v ic ti m in e f f o r t to s h o w th e r e w a s mo r e to th e c a s e than a fe lon y mu rd e r. Cou ns e l c on c e de d th a t he did no t ha ve the pe tit ion e r’ s sp e c if ic c on se nt t o a dmi t guilt, but counsel emphasized that the petitioner had been “on board” with trying to get something less than a c onviction for fe lony murder. Counse l s ai d t h at t he petitioner indicated he wa s very happy with counse l’s closing argument until the jury ca me bac k with their verdic t of guilty.

Regarding the pe titioner’s speedy trial complaint, counsel said that he “brought out

everything” in his argume nt to the trial court, including the petitioner’ s arr est date. Rega rding the petitioner’s invalid indictment c omplaint, c ounsel said that he re ad the indictments and did not see
any p r o b le ms w ith th e m. Co u n s e l s a id th a t th e in d ic tm e n ts n o ti f ie d th e p e ti ti o n e r o f wha t the char ges we re and what the state would prove . Counsel said there w as neve r any c onfusion betwee n the petitioner a nd himself as to what c riminal offe nses the state was attempting to prove. Regarding the petitioner’s Fourth Amendme nt complaint, counsel said the i ssue was litigated and it was c lear from the testimony of a Mississippi officer at the suppre ssion hearing that he saw the murde r we apon in p la in v ie w. Cou ns e l sa id that th e pe tit ion e r w a s c on fu sin g th e pr oo f w ith the arg ume nt.

At the conc lusion of the hearing, the post-conviction court questioned whether the petitioner testified truthfully and ac cordingly ac cre dited the testimo n y of counse l. After c onsidering the petitioner’s a llegations, the post-conviction court held t hat t he petitioner f ailed to prove that counsel

wa s d e fi c ie nt, or

that th e pe tit ion e r w a s p re jud ic e d by cou nsel ’s pe rf ormanc e un de r the te st i n Strickland v. Washington

. The post-conviction court denied the petition for post-c onviction relief by writt e n o rd e r e nte re d A pril 1 1, 20 08 . T he pe tit ion e r f ile d a tim e ly n oti c e of

app e a l.

AN AL YSI S

In orde r for

a petitioner to suc cee d on a post-conviction claim, the petitioner must prove the allegations of f

ac t set forth in his petition by clear and convinc ing evidence . Tenn. Code Ann. § 40 -3 0- 11 0( f) . O n a

pp e a l, thi s c ou rt

is r e qu ir e d to a ff

ir m th e po st- c on vic tio n c ou rt ’s fi nd ing s u nle ss th e p e ti ti o n e r p r o v e s th a t th e e v id e n c e p r e p o n d e r a te s a g a in s t th o s e f in d in g s

. S t a t e v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) . Our re view of the post-conviction court’s fac tual findings, such as fi nd ing s c on c e rn ing the c re dib ili ty o f w itn e sse s a ndthe we igh t and va lue giv e n the ir te sti mon y, is-6-

de novo with a presumption that the findings are corr ect. See id. Our review of the post-conviction court’s le gal c o n cl u s i o n s and application of law to fac ts is de novo without a presumption of

corr ectne ss. Fi e lds v . S tat e , 40 S.W.3d 450, 457-58 (Te nn. 2001).

In orde r to establish the ineff ective a ssistance of c ounsel, the petitioner be ars the bur den of proving that (1) counsel’s performanc e was defic ient and (2) the def icient per formanc e pre

judiced th e d e f e n s e r e n d e r in g th e o u tc o me u n r e li ab le o r f u n d a me n ta ll y u nfair. S trickland v. Washington

, 46 6 U .S. 66 8, 68 7 ( 19 84 ); se e als o Arn old v . S tat e , 143 S.W.3d 784, 787 (Tenn. 2004) . Def icient perf ormanc e is shown if counsel’s conduct f ell below an obje ctive standa rd of r easona

bleness under
preva iling professional standar ds. Strickland , 4 66 U. S. at 68 8; se e als o B ax te r v . R os e , 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that repr esentation should be w ithin the range of compe tence demande d of attorne ys in criminal c a s e s ). A fair assessment of c ounsel’s per formanc e, “r equire s that

every eff ort be made to eliminate the distorting effe cts of hindsight, to reconstruc t the circ umstances of counse l’s challenge d conduct, a nd to evaluate the conduc t f rom counsel’ s perspe ctive at the time.” Strickland , 4 66 U. S. at 68 9; se e als o Ni c ho ls v . S tat e , 90 S.W.3d 576, 587 (Tenn. 2002). De fer ence is m a de to t

ri a l strate gy or

ta c tic a l c ho ic e s if

the y a re inf orme d o ne s b a se d u po n a de qu a te prepa ration. He lla rd

v . S tat e , 629 S.W.2d 4, 9 (Tenn. 1982). The f act that a particula r strate gy or tactica l decision failed does not by itself establish ineffe ctive assistanc e of c ounsel. Go ad v . S tat e , 93 8 S .W. 2d 36 3, 36 9 ( Te nn . 1 99 6) . O nc e the pe tit ion e r p ro ve s th a t c ou ns e l’ s r e pr e se ntatio n f e ll below a r easona

ble standar d, the petitioner must also prove pr ejudice. Pre judice is shown if, but for counsel’s unprofessional errors, there is a re asonable probability that the outcome of the proce eding would have been differe nt. Strickland , 466 U.S. at 694. Both deficient performanc e and pr ejudice

mu s t b e es t ab l i s h ed to prove ineffe ctive assistanc e of c ounsel. Id . at 697. If e ither ele ment of ine ff e c tiv e a ssi sta nc e of

c ou ns e l ha s n ot b e e n e sta

bli sh e d, a c ou rt ne e d no t a dd re ss the oth e r e le me nt. Id

.

I.

Th e pe tit ion e r f

ir st a ve rs that tr ia l c ou ns e l w a s in e ff e c tiv e in a dmi tti ng the pe tit ion e r’ s g uil t be fo re the jury w ith ou t th e pe tit ion e r’ s c on se nt.

“ Ca se s a dd re ssi ng a

de fe ns e c ou ns e l’ s a dmi ssi on tha t hi s cli e nt is guil ty g e ne ra lly fa ll i nto

o n e of two categories.” Pa ul G alb re ath v . S tat e , C. C. A

. N O

. 0 1 C0 1

- 9 6 0 3

- CC

- 0 0 0 9 7, 1997 WL 576495, at *2 (Tenn. Crim. App., at Nashville, S ept. 18, 1997). In some ca ses, def ense c ounsel’s admission of his client’s culpability is char acte rize d as a “func tional guilty plea” and c onstitut es the ineffe ctive assistance of counse l. Se e , e. g. , Wil ey v . S owd e rs , 647 F.2d 642, 649-50 (6th Cir. 1981). In oth e r c a se s, ho we ve r, c ou ns e l’ s a dmi ssi on of his c lie nt’ s c ulp abil ity ha s be e n c ha ra c te ri z e d a s a

rea sonable strategic choic e under the circ umstances since it leaves ope n the possibilit y of the jury finding the defe ndant guilty of a lesser -included of fense

. Se e , e .g ., Sta te v . Ca ldw e ll , 671 S.W.2d 459, 466 (Tenn. 1984)

. As previously set forth, the petitioner’s defe nse counsel admitted in closing argument that the petitioner wa s guilty of a crime. Howeve r, counsel testified at the post-convic tion evidentiary he ari ng that th e pe tit ion e r un de rs too d the e vid e nc e a ga ins t him a nd wa s “ on bo ard ” wi th tryin g to ge t so me thi ng le ss than a c on vic tio n fo r fe lon y mur de r. Cou ns e l e xp la ine d th a t he wa s f a c e d w ith-7-

overw helming proof that the pe titioner shot and killed the victim in her home and took the vic tim’s
pr op e rt y. Cou ns e l no te d th a t th e pe tit ion e r’ s c on fe ssi on ind ic a te d th a t he a ndthe vic tim ha d s ome kind of a re lationship. Theref ore, c ounsel suggested to the jury that the pe titioner was culpa ble of

“ so me thi ng ” in at te mpt to c on vin c e the jury th a t th e pe tit ion e r w a s g uil ty o f a le sse r- inc lud e d o ff

e ns e and not the cha

rged of fense of first degr ee f

elony murder

.

Th e a dmi ssi on of a c lie nt’ s gu ilt by de fe ns e c ou ns e l is c e rt a inl y a serio us and wei gh ty decision that ought to be made only after consultation with the client. Ind ee d

, without the acquie scenc e of the client, su ch an admission by defe nse counse l may constitute ineffe ctive assistance of counse l. Se e Ga lbr e ath , 1997 WL 576495, at *2. Howeve r, it is also true that such a n admission may be a r easona ble tactica l decision where the client’s acquiesce nce is obtained. Id . In the instant case , the post-conviction court found that counsel’ s a d mi s s ion of the petitioner’s guilt was

a re asonable tactica l decisi o n . We a gree . The re cord r efle cts that the petitioner unde rstood the overwh el m i n g evidenc e against him and ac quiesce d to counsel’s strategy of trying to get a le sser conviction than first degre e felony murder. D uring closing argume nts, counsel did not admit that the petitioner wa s guilty of the char ged off ense; but rather, c ounsel admitted that the petitioner wa s culpable of

some crime in attemp t t o s ec u re acquittal of the char ged off ense. A ccor dingly, we conclude that the evidenc e does not pr eponder ate against the post-conviction court’s findings and the petitioner is not entitled to relief on this issue.

II.

The pe titioner next argue s that counsel failed to corr ec t l y i d entify and a rgue the

commence ment of the spee dy trial period. Spec ifically, the petiti oner a sserts that trial counse l

err oneously argue d that the date of the petitioner’s indictment in June 2003 trigger ed his right to a speedy tria l rather

than the date of his arr est on January 2002. As proof of his arre st, the petitioner points to the first page of the written statement he ga ve to police whe rein a warning was given that he w a s “ un de r a

rr e st a ndma y b e c ha

rg e d w ith Fir st D e gr e e Mu rd e r i n c on ne c tio n w iththi s complaint.” The petitioner asse rts that but f or counsel’s mistake rega rding the triggering event f or a spee dy trial, this court would have rea ched a differ ent conc lusion regar di n g this iss ue on dire ct

app e a l.

Once the state initiates criminal procee dings, the right to a speedy tria l is im plicated pur suant to the Sixth Amendment to the United States Const itution and to Article 1, section 9 o f t he Te nn e sse e Con sti tut ion . W he n a de fe nd a nt c on te nd s that he wa s de nie d h is righ t to a sp e e dy tr ia l, the re viewing court must conduct a four part ba lancing test to deter mine i f t h i s ri g ht was, indee d, abridge d. Barker v . Wingo , 407 U.S. 514, 530 (1972). This test includes consideration of: (1) the length of the de lay; (2) the rea sons f or the delay; ( 3) the de fendant’s assertion of his right; and (4) the actual prejudice suffe red by the defe ndant bec ause of the delay. Id

. See also State v . Bishop , 493 S.W.2d 81, 84-85 (Te nn. 1973) (implicitly adopting the Barker balanc ing te st fo r o u r st ate’ s

con stitut ion a l a ndstatut ory righ t to a sp e e dy tr ia l) . G e ne ra lly on dir e c t app e a l, the fi rs t Barker fa c tor , le ng th o f d e la y, is a thr e sh old fa c tor , servin g as the tr igg e ri ng me c ha nis m th a t w ill ne c e ssi ta te consideration of t he other three fac tors. Barker

, 407 U.S. at 530. H oweve r, of “ these fa ctors, and

cruc ial to supporting a claim for ineffe ctive assist ance of counsel, the single most im portant fa ctor-8-

is prejudice to the defe ndant, and the critica l inquiry c oncerning prejudice ‘is the impairment of the ability to prepare a def

ense.” State v. Jame s A l a n Bates , No. E2007-00187- CCA-MR3-PC , 2008 WL 465271, at *8 (Tenn. Crim. App., at Knoxville, Feb. 21, 2008), perm. app. de nied (Tenn. June 23, 2008) (c itations omi tted).

We be gin our revie w by re iterating that it is the petitioner who b ears the burde n in a post-conviction proc eeding to prove his factua l grounds for r elief by c lear and convinc ing evidence

. At the post-convictio n h earing, trial counsel testified that he pursued the petitioner’s right to a speedy tria l and “br ought out everything” in his argume nt, including the petitioner’s ar rest date . The post-conviction court acc redited tria l counsel’s testimony and found that counsel compete ntly raised the issue of spee dy trial during appe llate proc eedings. W e agr ee.

As the re c or d r e flects, th e pe tit ion e r thr ou gh c ou ns e l c ha lle ng e d th e de nia l of his constitutional right to a speedy trial on dire ct appe al. In making the ch al l en ge, the pe titioner submitt ed “that his righ t t o a speedy tria l was trigger ed whe n the Memphis police off icer s interviewe d him in Mississ ippi on January 2, 2002, a lthough he was not cha rged w ith the Tennesse e offe nses unt il his i ndictment in June 2003.” Palmer

, 2005 WL 3416319, at *9. Based on a revie w of the rec ord, this c ourt found that the petitioner was in c ustody in Mississippi on unrelated cha rges of armed robbe ry in January of 2002, but he was not char ged with the vi ctim’s murder in Te nnessee until June of 2003. Id

. at *8. Acc ordingly, this court found that “the triggering eve nt for spee dy trial
purposes . . . wa s [the p et i t i o n er ’s ] indictment for the curr ent cha rges in June 2003, not his initial interview w ith the Memphis police on January 2, 2002.” Id . at *10. Finding that the length of the delay wa s not presumptiv el y prejudicia l, this court then determined that the petitioner’s right to a speedy tria l was not violated. Id

. See B arker , 407 U.S. at 530 ( “Until there is some de lay which is presumptively prejudicial, ther e is no nece ssity for inquiry into the other fac tors that go into the balanc e.”)

. Contrary to the petitioner’s complaint, it is clea r from this c ourt’s opinion on dire ct appe al that the petitioner’s right to a speedy trial wa s tr i g g er ed wh en he wa s char ged with first degr ee murder in 2003, a nd not wh i l e h e wa s in custody on unrelate d char ges of a rmed robbe ry in 2002. See U nited States v. Marion , 4 04 U. S. 3 07 , 3 20 (1 97 1) ; State v. Utley , 956 S.W.2d 489, 492 (Tenn. 1997) (not i n g t h at “i t is ‘either a formal indictment or information or else the a ctual re straint imposed by arr est and holdi ng to answe r a criminal cha rge’ that triggers the spe edy trial a nalysis.”). The pe titioner’s ref

ere nce to the f

irst p ag e o f h i s writ ten conf ession does not establish clea r and convincing proof that he was a rre sted for f

irst degre e murde r on June 2, 2002, a nd place d in custody on this date as a dir ect r esult of the first degre e murde r cha rge r ather than re maining in custody on the unre lated robbery char ges. Additionally, like the post-conviction court, we fail to discern how trial counsel wa s deficie nt in arguing this issue. Success or perf ection is not the standar d of mea sure f o r c o u n s e l ’ s p e r f

o r m a n c e ; r a t h e r , a p e t i t i o n e r i s e n t i t l e d o n l y t o c o n s t i t u t i o n a l l y a de qu a te repr esentation. Se e De nto n v . S tat e , 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996) . Furthermore

, assuming arguendo that th e pe tit ion e r w a s p la c e d u nd e r a rr e st f or the fe lony mur de r i n 2 00 2, thi s court on dire ct appe al found no proof of actual prejudice sustained by the petitioner be cause of the delay. Palmer , 2005 WL 3416319, at *11. Simil arly, in the c ase sub judice , the petitioner ha s failed to identify and pre sent proof of actua l prejudice as a r esult of the delay. Acc ordingly, we c onclude-9-

that th e pe tit ion e r did no t c arry his bu rd e n on thi s is su e a ndthat th e po st- c on vic tio n c ou rt c or re c tly denied his petition as to this iss ue.

III

.

Th epe tition e r nex t co nt end s co un sel was in effect iv e beca us e he d id no t ch all eng e the v alid ity of the ind ic tme nts . Sp e c if

ic a lly , th e pe tit ion e r a

rg ue s th a t th e ind ic tme nts c ha rg ing him wi th f

ir st degre e fe lony murder we re inva lid because the i ndictments failed to state any specific fac ts which formed the basis for the f elony murder

.

We be gin our revie w by re citing the language of Count 1 of the pet i t i o n er ’s t wo count indictment for fe lony murder. Count 2 is simil ar in it s language with exce ption that it refer ence s the

un de rl yin g f

e lon y o f the ft

of pr op e rt y. Cou nt 1 re a ds in p e rt ine nt p art a s f oll ow s:
CURTIS PALMER during t he period of time betwee n the dates of Dec emb er 31, 20 0 1 an d J an u ary 1, 2002 in Shelby County, Tennesse e, and be fore the finding of this indi ctment, di d unlawfully and w ith the intent to commit Aggra vated Burglar y kil l PA TRI CI A M IT CH EL L d uring the pe rp e tr a tio n of Ag gr a vate d Bu rg lary , in violation of T.C. A. 3 9 -1 3 -202, against the peac e and dignity of the State of Tenne ssee.

An indictment that achie ves its “over riding purpose of notice to the acc used will be consider ed sufficie nt to satisfy both constitutional and statutory require ments.” State v. Hamm onds , 30 S.W.3d 294, 300 (Tenn. 2000) . It is well established that an indict m ent is sufficient to satisfy notice require ments if it “contains allegations that (1) enable the acc used to know the ac cusation to which

answe r is require d; (2) furnish the trial court an adequate basis for entry of a prope r judgment; and (3) pr otect the a ccuse d from a subse quent prosec ution for the same offe nse.” Id

. at 299 (c iting Sta te

v . H ill , 954 S.W.2d 725, 727 (Tenn. 1997). In additi on, this court has previously observe d that “a felo n y m u rd er indictment must allege that the killing was committ ed during the pe rpetration of a felony, but spec ific allegations of t he elements and facts of the underlying felony a re unne cessa

ry.” State v. Alfonz o E

. A n derson , No. W2000- 00737-CCA-R3-CO, 2002 WL 1558491, at *2 (Tenn. Crim. App., at Jackson, Ja n. 9, 2002) (c itations omi tted).

In denying re lief on the c laim that the petitioner raises on appea l, the post-conviction court’s

or de r s ta te s in pe rt ine nt p a rt :

Petitioner testified that the indictment lacke d fa ct u al material and allegation constituting t he off

ense. Pe t i tioner conc eded that the indictment did include the elements of the char ge. [Counsel] testified that he did not see a ny problem with the indic tm e n ts w h e n h e r e a d th e m. [ Co u n s e l] te s ti f ie d th a t th e in d ic tm e n t p r o v ided adequate notice a nd did not cause any confusion over the char ges against Petitioner. This Court finds that [counsel’s] actions did not fall below an objective standard of

re a so na ble ne ss.-10-

We a gree with the post-conviction court’s findings. The indictments at issue tra cked the language of the fe lony murder sta t u t e, m ad e spec ific re fer ence to the statute, stated the unde rlying felony,
pr ov ide d th e date of

the of fe ns e , a ndide nti fi e d th e na me of the vic ti m. As su ch, the ind ic tme nts satisfied both constitutional and statutory require ments and wer e valid. Acc ordingly, the petitioner has not met his burden of de monstrating that counsel wa s defici en t in failing to challenge the ind ic tme nts or

that the pe tit ion e r wa s pre jud ic e d as a re su lt of that alle ge d de fi c ie nc y. Th e iss ue is wi tho ut m e ri t.

IV.

Th e pe tit ion e r ne xt c on te nd s that he re c e ive d the ine ff e c tiv e a ssi stanc e of

c ou ns e l be c aus e his tr ia l c ou ns e l f

a ile d to pr op e rl y li tig a te the su pp re ssi on of e vid e nc e a t th e mot ionto s up pr e ss he ari ng a ndon app e a l.

Addre ssing this issue, the post-conviction court found the following:

Pe ti ti o n e r te s ti f

ie d th a t tria l c o u n s e l p r o d u c e d e v id e n c e a t th e [ a ] p p e ll a te hea ring which counse l failed to put on during th e [s] uppression [h] earing. Petiti oner

conce ded, howe ver, that trial counsel did cr oss-exa mine the prosec ution’s witnesses at the [s] uppression [h] earing, which did provide proof. Petitioner further agre ed that he had no w itnesses of his own at the [s]uppre ssion [h]ea ring. [Counsel] testified that while he did te ll the judge that he did not ha ve any pr oof to put on, he did argue

. . . b a se d o n c ro ss- e xa min a tio n [ that] the c ou rt sh ou ld s up pr e ss the e vid e nc e . [ Cou ns e l] fu rther te sti fi e d th a t a t th e Cou rt of Cr imi na l A pp e a ls, he pr ov ide d th e sa me argume nt as at the trial level. This Court finds that Petit ioner ha s failed to prove how [c ou ns e l’ s] a c tio ns fe ll b e low a n o bje c tiv e stand ardof re a so na ble ne ss.

We a gree with the post-conviction court’s findings. The re cord e stablishes that co u n s el filed a
mot i o n t o suppress the e vidence and ef fec tively repre sented the pe titioner at the hea ring on the motion to s uppress. None theless, the trial court he ld that the evidenc e wa s not subjected to an illegal

sear ch and se izure . On direc t appea l, this court review ed the pe titioner’s suppression i s s u e and fo un d a s f oll ow s:

Based on our r eview, the seizure of the gun i n De fe n d ant’s car by the Mississippi
po lic e of fi c e rs wa s p ro pe r u nd e r the plain vie w ex c e pti on to the wa rr a nt r e qu ir e me nt. Moreove r, bec ause a

gun was discovere d in pla in vie w in D efe ndant's car , the police office rs had pr obable c ause to sea rch D efe ndant’s entire vehicle, inc luding the trunk.

Palmer

, 2005 WL 3416319, at *7. The petitioner’s prese ntation of post-conviction proof r egar ding this claim is greatly lacking in de tail a s to how counsel’s repr esentation wa s defic ient and how any defic iency pr eju d i ce d h i s ca s e. We also note that the pe titioner did not support thi s argument on appea l with citation to authorities or appropriate re fer ence s to the re cord. See Tenn. Ct. Crim. App. R. 10(b). Ac cordingly, we determine that the petitioner fa iled to car ry his burden to show that tria l

c ou ns e l w a s in e ff

e c tiv e a ndthe iss ue is w ith ou t me ri t.-11- CO NC LU SION

The pe tition er h as failed to meet his burden of proof r egar ding his claims of ineffe ctive assistance of counse l, and the post-convic tion court corr ectly denie d th e p et i t i o n . There fore , the judgment of the post-convic tion court is affirmed.

___________________________________ J.C. McLIN, JUDG E