IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 12, 2016

CHARLIE A. CLARK v. STATE OF TENNESSEE

Appeal from the Circuit Court for Henderson County

No. 15001 Roy B. Morgan, Jr., Judge

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No. W2015-01484-CCA-R3-PC - Filed November 22, 2016

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Petitioner, Charles Anderson Clark, appeals from the post-conviction court’s denial of his 

post-conviction petition for relief. Petitioner alleges that the post-conviction court erred 

by not considering all of the proof presented in regard to the racial makeup of the jury. 

Petitioner further contends that he received ineffective assistance of counsel due to his 

trial counsel’s failure to locate certain individuals to serve as witnesses. After review, we 

conclude that Petitioner has failed to establish that he is entitled to post-conviction relief, 

and affirm the judgment of the post-conviction court. 

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN

and ROBERT H. MONTGOMERY, JR., JJ., joined.

Chadwick R. Wood, Lexington, Tennessee, for the appellant, Charlie A. Clark.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; James G. (Jerry) Woodall, District Attorney General; and Angela Scott, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Background 

This court summarized the facts of this case, on direct appeal, as follows:

On or about July 10, 2012, two sexual encounters occurred between the 

victim and the Defendant-Appellant, a friend of the victim’s roommate. 
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Early that morning, around 4 a.m., the victim’s roommate asked her to 

allow the Defendant-Appellant to wait inside their home until his ride 

arrived. Although the victim had previously expressed misgivings about 

the Defendant-Appellant, she reluctantly agreed. However, she told her 

roommate that she preferred for the Defendant-Appellant to wait on the 

front porch. The victim fell asleep on the futon in the living room and 

was later awakened by the Defendant-Appellant “putting his hands down 

[her] pants.” She told him to stop, immediately went to her bedroom, 

and locked the door behind her. 

The victim was awakened again later that morning with the DefendantAppellant on top of her. She said that the Defendant-Appellant was 

penetrating her anally with his penis. She was unable to scream for help 

because he had her pinned down, pushing her face into a pillow with his 

left arm pressing against her neck. . . .

State v. Charles Anderson Clark, Jr., No.W2014-00445-CCA-R3-CD, 2014 WL 

7204525 (Tenn. Crim. App. Dec. 17, 2014), no perm. app. filed. 

Petitioner was convicted of rape by a Henderson County jury, and was sentenced 

to 25 years as a Range III, persistent offender. Petitioner appealed to this court, and in an 

opinion filed on December 17, 2014, this court affirmed the judgment of the trial court. 

Id. Petitioner did not seek permission to appeal to the Tennessee Supreme Court, but 

filed a pro se petition for post-conviction relief. The post-conviction court appointed 

counsel, and held an evidentiary hearing on the petition. 

Post-conviction hearing

A post-conviction hearing was conducted on June 5, 2015. Petitioner did not 

testify. The post-conviction court was presented with testimony from Petitioner’s trial 

counsel, two of Petitioner’s acquaintances, and Petitioner’s cousin.

Petitioner’s trial counsel testified that Petitioner sent many letters to him from jail 

and that he personally met with Petitioner approximately six times. Trial counsel 

testified that he discussed trial strategy with Petitioner at those visits, and trial counsel 

stated that the primary strategy was to discredit the testimony of the alleged victim by 

presenting evidence that the victim’s story was inconsistent. Trial counsel testified that 

Petitioner gave him several names and phone numbers of individuals that Petitioner 

wanted to call as witnesses. However, after attempting to contact the potential witnesses, 

trial counsel discovered that none of the phone numbers were working numbers, and most 

of the names were “street” names. Trial counsel specifically recognized the names 
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Cortney Morton and Andre Rice. Trial counsel testified that he was unable to locate 

these individuals despite looking up the given phone numbers, asking members of the 

community how to find them, and further, searching for information about the individuals 

on the Internet. Trial counsel testified that, as part of his strategy, he advised Petitioner 

not to testify at trial due to Petitioner’s 19 prior felony convictions. 

Cortney Morton, Petitioner’s life-long friend, testified that he had seen Petitioner 

with the victim several times, and he believed Petitioner and the victim were in some type 

of relationship. Mr. Morton further testified that he had been living in Jackson the entire 

relevant time period and would have given the same testimony at trial, but he was not 

contacted by anyone. Mr. Morton also testified that he was not present when the alleged 

rape took place and that he had written to Petitioner while Petitioner was in jail, so 

Petitioner should have known his address. 

Similarly, Andre Rice testified that he had seen Petitioner and the victim together 

several times and that he believed them to be in a relationship. Mr. Rice further testified 

that his testimony would have been the same if he had been subpoenaed to come to the 

trial and that he did not attempt to contact Petitioner’s attorney even though he knew that 

the attorney was looking for him. 

Rose McGoughy, Petitioner’s cousin, testified that she assisted in hiring 

Petitioner’s trial attorney and that she provided Petitioner’s attorney with several names 

of potential witnesses, including Cortney Morton and Andre Rice. Ms. McGoughy 

further testified that she could have brought Mr. Morton and Mr. Rice to the trial, but she 

asked Petitioner’s trial counsel and he did not request that she bring them. 

As pertinent to the issues presented on review, the post-conviction court made the 

following oral findings of fact in denying the petition for post-conviction relief: 

I also note it’s been mentioned in closing argument about this jury pool, 

all white jury pool. There’s been no proof today, other than an 

allegation. Allegations are easy to make, but that’s not carrying the 

burden by clear and convincing evidence of any violation regarding the 

makeup of the jury pool.

. . .

Now as to the other allegations, we agreed on the front end that we’re 

now looking really at ineffective assistance of counsel allegations. 
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The Court finds specifically from the sworn testimony, without a doubt, 

the Defendant and/or the Defendant’s family, which includes Ms. 

McGoughy, claim today that they had specific information about 

witnesses. Trial counsel has sworn under oath that information as far as 

addresses or furnishing those witnesses never took place. Again, I have 

to judge the credibility of the witnesses. Ms. McGoughy said she never 

carried them down to him, she never brought them. She said something 

about he told her not to get them here, but I don’t find that the burden 

has been carried as to the allegations of the Defendant not finding the 

witnesses and investigating these witnesses further. . . . the fault lies with 

the Defendant and his family if they knew. Even the witnesses who 

testified today said they knew where we were. “I was at this house at this 

location,” but they didn’t give it to counsel; they didn’t give that address. 

Now whose fault it that? Not counsel falling below any standard by any 

means. And I emphasize that in two or three respects further. So [trial 

counsel] only knew what he thought the witnesses might have said if 

they had gotten those witnesses or if they had brought them to trial. He 

emphasized that the Defendant was urgent to get on to trial, which was 

the explanation why another continuance was not requested. 

. . . 

Mr. Cortney Morton testified, “I was even writing the Defendant while 

he was in jail, telling him to keep his chin up.” The Defendant had every 

way of getting that information of that witness in. He could have told 

Mr. Morton, “You go see my lawyer.” He didn’t do it. Mr. Rice said, 

you know, “I saw the Defendant with the victim.” 

. . . 

He said on cross examination, “I knew the Defendant was charged. I did 

not go help. The Defendant did not ask me to help. The Defendant’s 

family didn’t ask me to help, and they knew my location.” Again, can’t 

note that counsel fell below any standard in that respect. 

And again, Ms. McGoughy who is actually a cousin . . . has testified to 

what she didn’t do. She never gave the addresses, didn’t get them in, et 

cetera. 

So when there’s the specific allegations alleged in the petition again 

faulting counsel for not investigating witnesses, the Court finds the 

burden has not been carried in that respect. 

I also want to note that even new evidence from these witnesses, having 

recalled the whole testimony during the course of the trial, I don’t find 
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that there would be any reasonableness as to the possibility of the error 

affecting the outcome or changing the outcome of the trial. 

Analysis 

Petitioner asserts on appeal that the post-conviction court erred by finding 

insufficient evidence to review the makeup of the jury panel. Petitioner further contends 

that he received ineffective assistance of counsel due to his trial counsel’s failure to 

locate the witnesses that he was informed of. 

To prevail on a petition for post-conviction relief, the burden is on the petitioner to 

prove all factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); 

See also, Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). Relief will be granted if the 

conviction or sentence is void or voidable because of the abridgment of any right 

guaranteed by the Constitution of Tennessee or the Constitution of the United States of 

America. T.C.A. § 40-30-103. 

On review, the post-conviction court’s findings of fact are reviewed under a de 

novo standard with a presumption of correctness, unless the evidence preponderates 

against them. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)(citing Tenn. R. App. P. 

13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). Conclusions of law, however, 

are reviewed under a purely de novo standard, with no presumption of correctness. Id. In 

a petition alleging ineffective assistance of counsel, this court will apply a purely de novo

review with no presumption of correctness. Id. at 457.

To prevail on a claim of ineffective assistance of counsel, Petitioner must show 

that the performance of his trial counsel was deficient and that the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 205, 280 

L. Ed. 2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to 

show deficient performance, Petitioner must show that the trial counsel’s conduct fell 

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, 104 

S.Ct. at 2065; Baxter, 523 S.W.2d at 936). To show that the conduct of the trial counsel 

prejudiced the defense, Petitioner must establish 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.” Id. at 370 (quoting Strickland, 466 U.S. at 694). Furthermore, in reviewing 

counsel’s performance, this court “must make every effort to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to 

evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185 

S.W.3d 319, 326 (Tenn. 2006)(citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052).
6

Petitioner asserts that his trial counsel’s performance was deficient for failing to

locate certain individuals and have them serve as witnesses. In order to succeed under 

this claim, a petitioner must present the witnesses at the post-conviction hearing. Plyant 

v. State, 263 S.W.3d 854, 869 (Tenn. 2008)(citing Black v. State, 794 S.W.2d 752, 757 

(Tenn. Crim. App. 1990)). “The post-conviction court must then determine whether the 

testimony would have been (1) admissible at trial and (2) material to the defense.” Id. 

(citing McAlpin v. State, No. M2004-03043-CCA-R3-PC, 2005 WL 2453983, at *8 

(Tenn. Crim. App. Oct. 5, 2005)). Both of these elements must be met, thus the postconviction court can determine that the testimony would not have materially aided the 

petitioner even if it was admissible. Id. 

The post-conviction court heard testimony from two witnesses whom Petitioner 

claims should have been subpoenaed to testify at trial. Following this, the postconviction court found trial counsel credible and that trial counsel was not deficient 

because trial counsel was never provided with the adequate information needed to locate 

the potential witnesses before trial. Petitioner has failed to present clear and convincing 

evidence that this finding by the post-conviction court is in error. Because Petitioner has 

failed to show defective performance by trial counsel, this court need not address the 

issue of whether prejudice existed. 

Petitioner asserts that there was sufficient evidence to establish an unconstitutional 

jury pool from which the trial jury was selected. However, Petitioner has failed to show 

exactly what claim this is furthering, or show what relief is sought. Petitioner’s amended 

petition is not included in the record, and no specific claim or citation to relevant

authority is included in Petitioner’s brief on this issue. Having failed to cite to any 

relevant legal authority, argument, or references to the record, we will consider this issue 

to be waived pursuant to Tenn. Crim. App. R. 10(b). 

Furthermore, the claim that Petitioner is entitled to post-conviction relief on the 

basis of an unconstitutional make-up of the jury pool is waived by statute. T.C.A. § 40-

30-10(b)(9) provides that an issue which can be presented in a prior proceeding, but is not 

presented is waived as a stand-alone claim and cannot be raised in post-conviction 

proceedings. This issue could have been raised at trial and on direct appeal, but was not. 

 

For the foregoing reasons, we affirm the judgment of the post-conviction court. 

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THOMAS T. WOODALL, PRESIDING JUDGE