FILED

May 26, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER SESSION, 1998

JAMES H. REGISTER, ) C.C.A. NO. 01C01-9605-CC-00199

)

Appellant, )

)

) BEDFORD COUNTY

VS. )

) HON. CHARLES LEE

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN E. HERBISON JOHN KNOX WALKUP

2016 Eighth Avenue South Attorney General and Reporter

Nashville, TN 37204

KAREN M. YACUZZO

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

MIKE MCCOWN

District Attorney General

ROBERT CRIGLER

Assistant District Attorney

Bedford County Courthouse

Shelbyville, TN 37160

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
1

 Petitioner was also convicted of aggravated kidnapping, but the aggravated kidnapping

conviction was rev ersed b y this Court o n direct ap peal. See State v. James H. Register, C.C.A. No.

01C01-9210-CC-00329, 1993 Tenn. Crim. App. LEXIS 538, Bedford County (Tenn. Crim. App. filed

Augus t 12, 1993 , at Nash ville), perm. to app. denied (Tenn. Decem ber 28, 1993).

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OPINION

The petitioner, Jam es H. Register, appeals the Bedford County Circuit

Court’s order denying his petition for post-conviction relief after an evidentiary

hearing. Register was convicted in 1992 of one (1) count of aggravated robbery

and one (1) count of aggravated burglary and received an effective sentence of

thirty (30) years.1 Petitioner subsequently filed the present petition which alleged

numerous constitutional violations. On appeal, the petitioner contends that (1)

the state withheld exculpatory information at a suppression hearing prior to trial;

(2) the state knowingly presented false testimony at trial; and (3) trial counsel was

ineffective for failing to discover such exculpatory information. After a thorough

review of the record before this Court, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

A. Trial

We will recite the facts as set out by this Court on direct appeal:

On October 8, 1991, at 5:10 a.m., a Bedford County resident

was accosted in the bathroom of her home by a man wearing a

nylon stocking over his head. The intruder, brandishing a pocket

knife, demanded the victim’s money and was given $8 from the

victim’s pocket. The intruder then demanded the victim remove her

panties and the victim refused since her two year old son was

watching. The intruder ordered the victim to make her son lay down

and again demanded she drop her panties. The victim explained

that she was on her monthly period and was wearing a pad.

Eventually she dropped her panties and the intruder started undoing

his pants, spied her pad, turned and walked through the back door

of her hom e after cutting the telephone cord. A week later the victim
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identified a photograph she selected as being similar to her attacker.

This was not the defendant. Later that day she subsequently

identified the defendant in a line-up. The victim identified the

defendant’s flannel jacket as being the jacket worn by the intruder.

This testimony and other evidence convinced the jury the defendant

committed these offenses.

State v. James H. Register, 1993 Tenn. Crim. App. LEXIS 538, at *1-2.

B. Suppression Hearing

Prior to trial, the trial court held a hearing on the petitioner’s motion to

suppress items of evidence seized pursuant to a stop of his vehicle by law

enforcement authorities. Detective Ed Luther of the Rutherford County Sheriff’s

Department testified that two incidents similar to the present case occurred in

Rutherford County in the fall of 1991. The law enforcement authorities had a

description of the suspect, and a Cam aro automobile was seen in the vicinity of

the crime in both cases. Detective Luther spoke with Bedford County authorities

who advised him about the October 8 incident. The Bedford County Sheriff’s

Department further advised that Register drove a Cam aro which matched the

description and he worked in Rutherford County. Luther also had information that

Register was driving on a suspended driver’s license. 

Luther then took a witness to the parking lot of Register’s place of

employment, and the witness identified the Camaro as the vehicle seen at the

scene of one of the Rutherford County offenses. Luther and other officers

watched the vehicle until Register got into the vehicle and drove from the parking

lot. When Luther noticed that Register matched the description of the suspect,

the officers stopped the petitioner’s vehicle. Register was frisked, and a pocket

knife was found in his pocket. The officers obtained consent to search the

vehicle and seized various items of evidence, including gloves, scissors, a box
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cutter, boots and a jacket. A pair of wom en’s stockings were also taken from the

petitioner’s car.

The officers subsequently took the petitioner to the Sheriff’s Department,

where the petitioner waived his rights and gave a statement to the officers. In his

statement, the petitioner denied culpability for the offenses, but admitted to being

in the vicinity of one of the offenses around the approximate time that the offense

occurred. The officers thereupon arrested the petitioner in connection with the

Rutherford County offense, but did not arrest the petitioner for driving on a

revoked license. Articles of clothing worn by the petitioner at the time he was

arrested were also seized by the authorities. 

The trial court found that based upon the identification of the petitioner’s

vehicle, the officers had reasonable suspicion to stop the petitioner. The trial

court further found that the petitioner gave the officers consent to search his

vehicle and, as a result, denied the petitioner’s motion to suppress the items

seized from the vehicle at that time. However, the trial court determined that the

officers did not have probable cause to arrest the petitioner and suppressed the

items seized subsequent to his arrest. 

C. Post-Conviction Hearing

At the post-conviction hearing, the petitioner testified that he was thirty-five

(35) years old and had an eleventh grade education. He stated that he was

represented at trial by the public defender’s office. He claimed that his attorney

did not discuss the investigation of his case or any defense strategies with him.

Although he acknowledged that his attorney discussed the suppression hearing

with him, he testified that there was no discussion as to why some items of

evidence were suppressed and others were not. He stated that, subsequent to

his trial and appeal, he was involved in a federal lawsuit against Detective Luther
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and in connection with such lawsuit, received discovery materials, including an

investigation report prepared by Detective Luther. In the investigation report,

Detective Luther states that the officers conducted a second search of the

petitioner’s vehicle after the petitioner was arrested. The pair of wom en’s

stockings were recovered during that second search. 

Detective Luther also testified at the post-conviction hearing. Luther

admitted conducting a second search of Register’s vehicle which produced the

pair of women’s stockings. However, Luther could not recall whether the

investigative report was given to the Bedford County District Attorney’s Office. 

The petitioner was represented by Forest Durard of the Public Defender’s

Office at trial. At the tim e of the petitioner’s trial, Durard had been involved in

approximately thirty (30) jury trials. Durard testified that he met with the petitioner

approximately nine (9) times in preparation for trial. Durard received the state’s

file on the petitioner’s case around the time that the preliminary hearing was to

take place. Because the petitioner agreed to waive his preliminary hearing, the

assistant district attorney agreed to open file discovery. Durard testified that he

investigated case law and reviewed the discovery materials in preparation for the

petitioner’s suppression hearing. He was unaware that the officers conducted a

second search of his client’s vehicle until the petitioner’s appeal had concluded.

Durard stated that he did not obtain a copy of the investigative report in

preparation for trial, and to his knowledge, such report was not in the state’s file.

He testified that, in his experience with the Bedford County District Attorney’s

Office, he “had no reason to believe that the attorney general’s office had [the

report].” 

Assistant District Attorney Robert Crigler testified at the hearing that he

assisted in the petitioner’s trial. He was not intimately involved in the pre-trial
2

 Gary Jo nes, lead couns el for the sta te in this cas e, was d eceas ed at the tim e of the he aring. 

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matters on this case, but reviewed the state’s file and did not find the investigative

report prepared by Detective Luther.2

In a written order, the trial court observed that although the items seized

from the petitioner’s vehicle at the time of the initial stop were admissible at trial,

both defense counsel and the trial court were led to believe that the women’s

stockings were seized at the time of the initial stop. The court determined that

information was withheld from the defense regarding the seizure of these

stockings. The trial court further determined that had trial counsel been aware

of this second search, he would have been successful in suppressing the

stockings as evidence in the petitioner’s trial due to the court’s previous ruling

that all items seized subsequent to the petitioner’s arrest were inadmissible. 

However, the trial court noted that the stockings were merely a “minor part of the

proceedings,” and the “heart of the state’s case against the petitioner was the

eyewitness identification by the victim.” Although the stockings were

corroborative of the victim’s identification, the trial court found that other items of

properly admissible evidence also corroborated the victim’s testimony. Finding

that the stockings were not material to the state’s case under Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, the trial

court denied post-conviction relief in this regard. Furthermore, the trial court

found that the petitioner did not receive ineffective assistance of counsel with

regard to his attorney’s failure to discover the second search of the vehicle

because the petitioner could not demonstrate how he was prejudiced. As a

result, the trial court denied the post-conviction petition. From the trial court’s

order, the petitioner brings this appeal.
3

 Und er the 1995 Pos t-Co nvictio n Pro cedure Act, the petitio ner h as the bur den of pro ving h is

claims by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). However, since the present

petitio n was filed prior to the effective d ate of the 1 995 act, th e petitioner’s cla ims mu st be proven by a

preponderance of the evidence.

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POST-CONVICTION STANDARD OF REVIEW

In post-conviction proceedings, the petitioner bears the burden of proving

the allegations raised in the petition by a preponderance of the evidence.3

Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Wade v. State, 914 S.W.2d

97, 101 (Tenn. Crim. App. 1995). Moreover, the trial court’s findings of fact are

conclusive on appeal unless the evidence preponderates against the judgment.

Tidwell v. State, 922 S.W.2d at 500; Campbell v. State, 904 S.W.2d 594, 595-96

(Tenn. 1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).

EXCULPATORY EVIDENCE

In his first issue, the petitioner claims that the state withheld exculpatory

information regarding the seizure of the women’s stockings during the second

search of his vehicle. He argues that trial counsel would have been successful

in suppressing the stockings as evidence at trial had counsel been aware that the

officers conducted a second search of the vehicle. Because the stockings were

admitted as evidence in the petitioner’s trial, he contends that he is entitled to a

new trial.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d

215 (1963), the Supreme Court held that “suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of good faith or
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bad faith of the prosecution.” See also Hartman v. State, 896 S.W.2d 94, 101

(Tenn. 1995). In order to establish a due process violation under Brady, four

prerequisites must be met:

1. The defendant must have requested the information (unless the

evidence is obviously exculpatory, in which case the State is bound

to release the inform ation whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The burden of proving a

Brady violation rests with the defendant, and the violation must be proven by a

preponderance of the evidence. Id.; State v. Spurlock, 874 S.W.2d 602, 610

(Tenn. Crim. App. 1993).

In determining the materiality of undisclosed information, a reviewing court

must establish whether “in [the] absence [of the information] [the defendant]

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L.

Ed. 2d 490 (1995). In other words, evidence is considered material only if there

is a reasonable probability that had the evidence been disclosed to the defense,

the results of the proceeding would have been different. Kyles v. Whitley, 514

U.S. at 433, 115 S. Ct. at 1565; State v. Edgin, 902 S.W.2d at 390.

In its order denying post-conviction relief, the trial court found that the state

withheld information concerning the seizure of the stockings, and if such

information had been disclosed, trial counsel would have been successful in

suppressing the stockings from evidence at trial. However, the trial court found

that such information was not material. We agree.
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The victim testified unequivocally at trial that the petitioner was the man

who attacked her on October 8, 1991. Although she was unable to identify the

petitioner from a photographic line-up, she identified the petitioner prior to trial in

a physical line-up. Detective Dale Elliott of the Bedford County Sheriff’s

Department testified that the victim showed no hesitation in identifying the

petitioner during the physical line-up. Furthermore, the victim identified a pocket

knife found on the petitioner as resembling the one used by her attacker and a

flannel jacket found in the petitioner’s car as one worn by the perpetrator. 

Moreover, Shirley Clanton, the petitioner’s neighbor, testified that she read

a newspaper article on October 8 which described the incident and the suspect,

as well as the suspect’s clothing. She notified the authorities when she noticed

that the petitioner matched the description of the suspect and was wearing similar

clothing on October 8.

Betty Jones testified that she and the petitioner lived together at the time

of the incident, and the petitioner was driving her vehicle on the day he was

stopped by the law enforcement authorities. She stated that she frequently wore

the type of stockings found by the officers in her car because she was pregnant.

She further testified that she often removed her stockings in her car due to

swelling in her legs and feet.

The victim’s identification of the petitioner as the perpetrator of the crime

was uncontroverted. Furthermore, the state presented evidence which

corroborated the victim’s identification testimony. The presence of stockings in

the petitioner’s vehicle was only slight corroborative evidence of the perpetrator’s

identity. Additionally, when coupled with Betty Jones’ explanation as to the

presence of the stockings in the car, the significance of the stockings diminishes.

The petitioner has not demonstrated a reasonable probability that, had the
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stockings been suppressed at trial, the result of the proceeding would have been

different. As a result, we agree with the trial court that the petitioner has not

carried his burden in this regard.

This issue is without merit.

FALSE TESTIMONY

In a related issue, the petitioner argues that the state knowingly presented

the false testimony of Detective Luther at the suppression hearing. He asserts

that Detective Luther’s testimony implied that all of the items were seized from

the vehicle at the time of the initial stop. Thus, the petitioner claims that the

state’s failure to correct Detective Luther’s misleading testimony deprived him of

a fair trial.

“[A] conviction obtained through the use of false evidence, known to be

such by representatives of the State” deprives a defendant of due process.

Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959);

see also Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31

L.Ed.2d 104 (1972); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App.

1993). “The same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360

U.S. at 269, 79 S.Ct. at 1177. Therefore, when a witness testifies falsely, either

on direct or cross-examination, the state has an affirmative duty to correct such

false testimony. State v. Spurlock, 874 S.W.2d at 617.

To prevail on a claim that the state knowingly presented false testimony,

the appellant must show by a preponderance of the evidence “(a) that false or

perjured testimony was admitted at trial, (b) that the state either knowingly used
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such testimony or knowingly allowed it to go uncorrected, and (c) that the

testimony was material and deprived him of a fair trial.” Roger Morris Bell v.

State, C.C.A. No. 03C01-9210-CR-00364, 1995 Tenn. Crim. App. LEXIS 221, at

*9, Hamilton County (Tenn. Crim. App. filed March 15, 1995, at Knoxville), perm.

to app. denied (Tenn. August 28, 1995); see also Phillip Shupe v. State, C.C.A.

No. 03C01-9804-CC-00126, 1999 Tenn. Crim. App. LEXIS 111, at *4, Bradley

County (Tenn. Crim. App. filed February 9, 1999, at Knoxville).

It is unclear whether Detective Luther deliberately falsified his testimony

regarding the second search or merely limited his answers to the questions

posed to him. Regardless, it is clear that Luther’s testimony can arguably be

construed as misleading. However, there is no indication in the record that the

Bedford County District Attorney’s Office knew that such testimony was

misleading. Indeed, the petitioner recognizes in his brief that “[t]he record does

not disclose whether any prosecuting attorney was aware of Detective Luther’s

duplicity.” Assistant District Attorney Crigler testified at the post-conviction

hearing that the state’s file did not contain the investigative report prepared by

Luther which revealed the second search. Without any evidence to the contrary,

we are reluctant to hold that the state knowingly presented false or misleading

testimony.

In any event, the petitioner has not demonstrated that the evidence was

material and deprived him of a fair trial. As we previously stated, the stockings

constituted very little of the state’s proof of the petitioner’s identity. If the state

had corrected Detective Luther’s testimony and the stockings were ruled

inadmissible, we are not convinced that a reasonable probability exists that the

result of the proceedings would have been different. Thus, the petitioner’s claim

in this regard m ust fail.
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This issue has no merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his final issue, the petitioner claims that trial counsel was ineffective for

failing to discover the second illegal search at the time of the suppression

hearing. Essentially, he argues that trial counsel did not effectively crossexamine Detective Luther at the suppression hearing. He contends that had trial

counsel asked the proper questions during the suppression hearing, the trial

court would have suppressed the stockings as evidence. Therefore, he

maintains that trial counsel’s performance was deficient, and he was prejudiced

as a result.

The United States Supreme Court articulated a two-prong test for courts

to employ in evaluating claims of ineffective assistance of counsel in Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court

began its analysis by noting that “[t]he benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. When

challenging the effective assistance of counsel in a post-conviction proceeding,

the petitioner bears the burden of establishing (1) the attorney’s representation

was deficient; and (2) the deficient performance resulted in prejudice so as to

deprive the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at

2064; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). This

Court is not required to consider the two prongs of Strickland in any particular

order. Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996).
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“Moreover, if the Appellant fails to establish one prong, a reviewing court need

not consider the other.” Id.

The test in Tennessee in determining whether counsel provided effective

assistance at trial is whether counsel’s performance was “within the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975); see also Harris v. State, 947 S.W .2d at 163. In

order to demonstrate that counsel was deficient, the petitioner must show that

counsel’s representation fell below an objective standard of reasonableness

under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at

2064; Harris v. State, 947 S.W.2d at 163.

Under the prejudice prong of Strickland, the petitioner must establish that

“there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694, 104 S.Ct. at 2068.

In reviewing counsel’s conduct, a “fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at

2065. The mere failure of a particular tactic or strategy does not per se establish

unreasonable representation. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

However, this Court will defer to counsel’s tactical and strategic choices only

where those choices are informed ones predicated upon adequate preparation.

Id.; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

The trial court found that trial counsel’s performance was not deficient in

this case. Furthermore, the trial court found that the petitioner had not
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demonstrated how he was prejudiced by his attorney’s alleged deficiency. We

agree.

Trial counsel testified that he received open file discovery from the state

but did not receive Detective Luther’s investigative report which revealed the

second search of the petitioner’s vehicle. He was unaware of the second search

until after the petitioner’s appeal had concluded. Durard testified that he

thoroughly investigated case law and reviewed his discovery materials in

preparation for the suppression hearing. Trial counsel had no reason to believe

that a second search of the vehicle was conducted; therefore, he had no reason

to question Detective Luther concerning the second search of the vehicle. As a

result, the petitioner has not proven that trial counsel’s performance in this regard

was deficient.

Furthermore, the petitioner has not demonstrated how he was prejudiced

by this alleged deficiency. W e have previously concluded that the admission of

the stockings as evidence did not materially affect the state’s case against the

petitioner. As such, the petitioner has not shown “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

This issue has no merit.

CONCLUSION

After a thorough review of the record before this Court, we conclude that

the petitioner has not proven his allegations by a preponderance of the evidence.

Accordingly, the judgment of the trial court denying post-conviction relief is

affirmed.
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However, upon our review of the record, we observe that the judgments of

conviction indicate that the petitioner was sentenced as a Mitigated Offender.

However, a reading of the transcript reveals that the petitioner was sentenced as

a Range II, Multiple Offender. When there is a conflict between the court minutes

or judgment and the transcript, the transcript controls. State v. Moore, 814

S.W.2d 381, 383 (Tenn. Crim. App. 1991). As a result, this case must be

remanded to the trial court for entry of proper judgments.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOHN H. PEAY, JUDGE