IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 10, 2012 Session

TARIK ROBERTSON v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Shelby County

No. 0701869 James C. Beasley, Jr., Judge

No. W2011-00679-CCA-R3-PC - Filed October 18, 2012

The petitioner, Tarik Robertson, appeals the Shelby County Criminal Court’s denial of his

petition for post-conviction relief. The petitioner was convicted of observation without

consent, a Class A misdemeanor, and sentenced to eleven months and twenty-nine days,

suspended to probation following service of four months in the county workhouse. On

appeal, the petitioner contends that it was error to deny him post-conviction relief because:

(1) the conviction was based upon evidence obtained pursuant to an unlawful arrest; (2) there

is newly discovered evidence in the case; (3) he was denied the effective assistance of

counsel; and (4) there were cumulative constitutional errors in the trial process. Following

review of the record and arguments of the parties, we affirm the decision of the postconviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and ALAN E. GLENN, JJ., joined.

Randall B. Tolley, Memphis, Tennessee, for the appellant, Tarik Robertson.

Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Reginald Henderson, Assistant

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

OPINION

Factual Background & Procedural History

The facts underlying the petitioner’s conviction, as recited by this court on direct

appeal, are as follows:
Around midnight on August 17, 2006, [the victim] was preparing to

take a bath when she thought she saw a “blurred vision in the window.” [She]

ran out of the bathroom to tell her husband, but later returned to the bathroom

to continue her bath. [She] testified that while she was sitting naked in the tub,

she saw [the petitioner’s] face “matted straight to the glass window” for one

to two minutes. [She] then “started screaming and hollering” before she ran

out of the bathroom and called the police. She testified that she had never seen

[the petitioner] before.

[The victim] testified that the police arrived roughly one minute after

she called them. She met the officers outside of her home, and described [the

petitioner] as wearing a white shirt with a “low” haircut and big eyes. After

[the petitioner] was detained, [the victim] identified him as the individual who

looked into her window.

[The victim] testified that her bathroom window is at eye level if

standing in the tub. The window shares the same wall as the tub. She

described the window as stained glass with a flower design in the middle. The

glass has different colors, including green, pink, and purple. [She] noted,

“Some parts of it is clear and some parts of it is stained. It’s frosted.” From

the inside looking out, she said “you can see straight through it.” [The victim]

testified that she was not wearing glasses while sitting in the tub; however, she

began wearing glasses about three weeks before the trial.

[The victim] testified that three months after the incident, she was

approached by [the petitioner] at a fast-food restaurant. She was about to order

at the drive-thru when [the petitioner] pulled his vehicle to the side of her

vehicle. [She] said that [the petitioner] then offered her seven hundred dollars

to “go before the media and clear his name.” [She] later reported these events

to the police.

Officer Marco Yzaguirre of the Shelby County Sheriff’s Department

testified that he and Officer Michael Kraemer responded to a “prowler call”

from [the victim’s] home. Officer Yzaguirre confirmed that they were less

than one minute from [the victim’s] home when he received the call from the

dispatcher. Upon arrival Officer Yzaguirre observed that [the victim] “came

out of the house, screaming.” Officer Yzaguirre testified that “she kept

yelling, ‘He’s in the back, he’s in the back.’” Officer Yzaguirre ran to the east

side of [the victim’s] home where he saw a black man wearing a white shirt

and matching the description provided by [the victim] . Officer Yzaguirre said

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[the petitioner] also wore jean shorts and tennis shoes. After [the petitioner]

was detained, [the victim] identified [the petitioner] as the prowler. Officer

Yzaguirre testified that [the petitioner] repeatedly said he was a fireman,

denied that he was a prowler, and explained that he was jogging. Officer

Yzaguirre said [the petitioner] asked the officers to issue him a misdemeanor

citation because they “are in the same business.”

Officer Michael Kraemer of the Shelby County’s Sheriff’s Department

testified that he assisted Officer Yzaguirre in responding to the prowler call.

Office Kraemer stated that after [the petitioner] was detained, he went to

investigate the bathroom window. He found a partial shoe print on the air

conditioner that sits under the bathroom window. Officer Kraemer examined

the sole of [the petitioner’s] shoe and determined that it matched the print on

the air conditioner. The print on the air conditioner was not preserved and no

photographs were taken. Later, at trial, Officer Yzaguirre testified that the

arrest ticket did not mention the shoe print.

Officer Terry Williams of the Shelby County Sheriff’s Department

testified that [the victim] filed an intimidation report on March 8, 2007.

Although the report showed that [the petitioner] approached [the victim] at the

drive-thru of a fast-food restaurant, it did not state that [the petitioner] offered

[her] seven hundred dollars in an effort to clear his name. Officer Williams

testified, however, that [the victim] told him that she was offered the money.

He did not include it in the report upon the instruction of his field commander.

[The petitioner] testified that before midnight on August 16, 2006, he

left his home after an argument with his wife. He wore a white polo shirt and

white tennis shoes. [The petitioner] stated that he lives in the same area as [the

victim]. He was walking to a gas station to purchase a drink when he realized

that his wallet was at home. On his return home, [the petitioner] testified that

he walked past [the victim’s] house, which he thought was vacant. He was

then grabbed by a police officer who called him a prowler. [The petitioner]

denied looking through [the victim’s] bathroom window. He said he did not

tell the officers that he was a fireman, and he denied asking to receive a lenient

misdemeanor citation. [The petitioner] also denied that he later approached

[the victim] at a fast-food restaurant. He claimed one of the officers told [the

victim] what [the petitioner] was wearing before she identified him to the

police.

State v. Tarik Robertson, No. W2008-01592-CCA-R3-CD (Tenn. Crim. App., at Jackson,

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Nov. 10, 2009), perm. app. denied, (Tenn., Apr. 14, 2010).

Based upon this evidence, the petitioner was convicted by a Shelby County jury of

observation without consent and was sentenced to eleven months and twenty-nine days, four

months of which was to be served in the county workhouse. Id. The petitioner filed a direct

appeal to this court challenging: (1) the sufficiency of the evidence; (2) that the trial court

erred in its role as the thirteenth juror; (3) that the State committed prosecutorial misconduct

in closing arguments; and (4) that the trial court erred in determining the sentence length and

manner of service. This court denied relief, and the Tennessee Supreme Court denied the

petitioner’s application to appeal. Id.

Thereafter, the petitioner, through counsel, filed the instant petition for postconviction relief, as well as a later-filed amended petition, alleging multiple grounds for

relief. A hearing was held at which multiple witnesses were called to testify. The first

witness was Lieutenant Reginald Hubbard who responded to the scene of the crime and

served as the supervisor of Officers Kraemer, Yzaguirre, Boyd, and Curtis, who all arrived

there prior to him. This was Lieutenant Hubbard’s first time to testify in this case, as he was

not called at trial or the preliminary hearing. Lieutenant Hubbard stated that he was only able

to recall “portions” of the evening, but did indicate that he recalled that when he arrived, the

petitioner was already in the rear of the squad car. He also recalled the victim’s identification

of the petitioner and, further, that she was hysterical at the time. Lieutenant Hubbard was

not involved in any preservation of the evidence at the scene. He testified that he understood

that the General Investigative Bureau was to be called to come preserve the evidence. It was

later determined that, although they were contacted, the bureau elected not to come to the

scene.

Lieutenant Hubbard testified that he did observe a footprint on the air conditioning

unit at the rear of the home, noting that the footprint was “on the very top of the unit.” He

identified several pictures of the home and air conditioning unit, taken by post-conviction

counsel, as representative of those things on the night of the incident. He stated that,

because of the placement of the bathroom window, it was assumed that the perpetrator had

to stand on something in order to see inside. Because of the footprint, the assumption was

made that he stood upon the air conditioning unit to accomplish his nefarious purpose.

Lieutenant Hubbard did acknowledge that the air conditioning unit was not directly beneath

the window, but stated that “once he’s on top of the unit he can lean over and be able to look

inside.” He acknowledged that the bathroom window “appears to be a stained-glass

window,” although some portions were clear. Lieutenant Hubbard did not enter the home

and personally determine if a person would be able to see through the window from the

inside.

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The next witness to testify was the petitioner himself. With regard to his activities

on the night of the crime, the petitioner testified that he left his nearby home after getting into

an argument with his wife. The petitioner stated that he left on foot and proceeded to walk

around the neighborhood “to clear [his] head out.” He testified that he walked to an Exxon

station to get something to drink, but he realized that he did not have his wallet, money, or

identification with him. As the petitioner began to walk home, he saw squad cars in the street

with blue lights flashing. The petitioner indicated that he walked in that direction, as it was

the way to his home, and stopped to talked with Officer Boyd, who was standing outside his

vehicle. The petitioner testified that Officer Kraemer then grabbed him, threw him across

the hood of the car, and placed his left forearm at the back of his neck. According to the

petitioner, Officer Kraemer accused him of being a “prowler,” which the petitioner said he

denied. The petitioner also elaborated that, at this point, Officer Boyd turned away from him

and returned to his patrol car, deactivating the lights and video-camera on the car. He then

claimed that the officers handcuffed him, and Officer Kraemer “g[a]ve me” to Officer

Yzaguirre before heading back around the home. The petitioner claimed that he could hear

Officer Kraemer returning with the victim, and, as they walked toward him, describing to her

what the petitioner was wearing. With regard to a description, the petitioner disputed the

testimony Officers Kraemer and Yzagguire given at trial that a description of the perpetrator

was relayed to them by the 911 operator. He also pointed out that their descriptions, which

were allegedly relayed to them, were not consistent with each other, and further, that a

transcript of the 911 call reflected that no description was given at all. The petitioner

complained neither the tape of the call nor a transcript of it were introduced at trial to use in

cross-examination of the officers.

The petitioner indicated that during the pendency of the underlying proceedings, he

had been represented by two separate attorneys, the first in general sessions, the second in

the trial court. The petitioner testified that general sessions counsel apparently waived a

preliminary hearing in the matter, without the petitioner’s knowledge or consent. The

petitioner understood that he stood charged with a misdemeanor offense, but he was not

advised by general sessions counsel that for a proper misdemeanor arrest, the offense had to

occur in the officer’s presence. No attack was made on the arrest at the general sessions

level.

The petitioner related that, even after trial counsel was hired, no motion to suppress

his purportedly unlawful arrest was filed. He also stated that no motion to suppress was filed

based upon an overly suggestive line-up and identification, i.e., the petitioner was handcuffed

and Officer Kraemer was describing what the petitioner was wearing to the victim. The

petitioner also contended that Lieutenant Hubbard should have been called to testify at trial,

and faulted trial counsel for the omission. He also testified that he was dissatisfied with trial

counsel’s questioning of the victim with regard to the amount of time she had worn glasses.

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The petitioner did acknowledge that trial counsel had discussed the trial with him and

addressed questions that he had. He also acknowledged that he and trial counsel discussed

his right to testify, and he elected to avail himself of that right. The petitioner acknowledged

that attorneys are often called to make strategic decisions in cases, but he denied that

introduction of the 911 transcript would have hurt his case, despite the comment by the

victim that she could positively identify the prowler’s face.

The final, and only, witness called by the State was trial counsel. He recalled that he

received and reviewed discovery with the petitioner in this case, and, although he was unable

to recall specifically what was included, he did not recall any surprises at trial. Trial counsel

indicated that he had discussed possible settlement options with the petitioner, but the

petitioner was adamant he was innocent and refused consider a plea. The case went to trial,

and the petitioner elected to testify and give his version of events. Prior to trial, trial counsel

was aware that the victim had identified the petitioner at the crime scene. Trial counsel felt

that identification was the major issue in the case and believed there was a valid question on

whether someone could be identified through a stained glass window. He elaborated that,

in support of that theory, he had presented a videotaped interview given by the victim to a

local television station, which depicted the actual window.

Trial counsel did not specifically recall photographs being introduced of the crime

scene at trial. When shown pictures taken of the victim’s backyard and air conditioning unit,

taken in preparation for post-conviction, trial counsel indicated he was “cau[ght] . . . off

guard because it doesn’t look like [the air conditioning unit is] under the window.” He

opined that from these photographs, it did not appear possible that someone could stand on

the unit and look into the bathroom through the window. However, when questioned, he

indicated that he did not believe that there was a question that someone was looking in the

victim’s window, the only issue was whether she had identified the correct person.

Trial counsel testified that he was aware that the petitioner was charged with a Class

A misdemeanor and that the offense did not occur in an officer’s presence. However, he did

not file a motion to suppress based upon grounds that arrests for misdemeanors without a

warrant must occur in the presence of an officer. Trial counsel was also aware of the onscene identification by the victim and, further, that the footprint had never been specifically

matched to the petitioner’s shoe.

With regard to testimony at trial regarding a description of the perpetrator, trial

counsel was only able to recall something about the perpetrator wearing a light-colored or

white shirt. Trial counsel verified that he did not introduce the 911 tape or transcript at trial

and, frankly, could not recall if mention was made of a description on the tape, although he

acknowledged there was not one contained in the transcript he was given for refreshment at

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the hearing. However, he testified that he did not introduce the tape because he did not want

to reinforce the victim’s identification at the scene, as the tape contained language that she

could positively identify her prowler.

After hearing the evidence presented, the post-conviction court denied relief. The

petitioner has timely appealed that determination.

Analysis

On appeal, the petitioner has challenged the post-conviction court’s denial of his

petition for post-conviction relief. He specifically delineates four issues for our review: (1)

whether the conviction was based on evidence obtained pursuant to an unlawful arrest; (2)

whether there is newly discovered evidence in the case; (3) whether the petitioner was denied

the effective assistance of counsel; and (4) whether there were cumulative constitutional

errors in the trial process.

I. Unlawful Arrest

First, the petitioner contends that his conviction was based on evidence obtained

pursuant to an unlawful arrest. He asserts that all the evidence obtained from the scene, i.e.,

the identification and testimony regarding the shoe print, was “undisputabl[y]” obtained after

an illegal arrest. He bases his argument on the fact that an officer may not arrest an

individual for a misdemeanor offense without a warrant, except in enumerated situations,

unless the offense was committed in the officer’s presence. See T.C.A. § 40-7-103 (2010).

While we understand the petitioner’s contention, we conclude that the issue, as a freestanding

one, is waived for failure to present it earlier, such as on direct appeal. See T.C.A. § 40-30-

106(g) (stating that a ground for relief is waived if the petitioner personally or through an

attorney failed to present it for determination in any proceeding before a court of competent

jurisdiction in which the ground could have been presented). While we do not review the

issue standing alone, we will, nonetheless, consider it under the umbrella of ineffective of

assistance of counsel for failure to challenge the arrest with a motion to suppress, as it was

also raised by the petitioner in that manner.

II. Newly Discovered Evidence

Next, the petitioner contendsthat there is newly discovered evidence in the case which

would have affected the outcome of the proceeding. Specifically, he refers to photographs

of the crime scene which were taken in preparation for post-conviction proceedings. He

contends that the photographs establish that the crime could not have been committed

pursuant to the State’s trial theory, based upon the placement of the air conditioner unit in

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relation to the bathroom window.

We agree with the State that a claim of newly discovered evidence, standing alone,

does not constitute a proper ground for post-conviction relief. For such a claim to be

cognizable in a post-conviction proceeding, it must implicate a constitutional right. A proffer

of newly discovered evidence generally amounts to no more than a request to relitigate the

sufficiency of the evidence at trial, which a post-conviction proceeding may not be employed

to do. As such, we will not consider this issue standing alone. However, as noted with

regard to the petitioner’s illegal arrest argument, the issue may be considered pursuant to an

ineffective assistance of counsel claim. As the issue was somewhat argued under that

auspice at the hearing and is also mentioned in the petitioner’s brief, we will consider the

issue in that manner.

III. Ineffective Assistance of Counsel

The petitioner contends that the post-conviction court erred in denying his petition

because trial counsel was ineffective in his representation at trial. Specifically, he faults trial

counsel for: (1) failing to call Lieutenant Hubbard; (2) failing to introduce crime scene

photographs; (3) failing to file a motion to suppress evidence obtained pursuant to an

unlawful arrest; (4) failing to challenge the overly suggestive identification of the petitioner

by the victim; and (5) failing to introduce the 911 tape to counter the officers’ testimony that

the victim had given a description of the perpetrator to the 911 dispatcher.

In order to obtain post-conviction relief, a petitioner must prove that his or her

conviction or sentence is void or voidable because of the abridgement of a right guaranteed

by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103; Howell

v. State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct.

R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is

clear and convincing when there is no serious or substantial doubt about the correctness of

the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.

2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal

of a court’s decision resolving a petition for post-conviction relief, the court’s findings of

fact “will not be disturbed unless the evidence contained in the record preponderates against

them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

A criminal defendant has a right to “reasonably effective” assistance of counsel under

both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the

Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to

effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466

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U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of

counsel, a petitioner must prove both deficient performance and prejudice to the defense.

Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.

Id. at 697.

For deficient performance, the petitioner mustshow that “counsel’srepresentation fell

below an objective standard of reasonableness” under prevailing professional norms, despite

a “strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 687-89. “In other words, the services rendered or the advice

given must have been below ‘the range of competence demanded of attorneys in criminal

cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975)). The petitioner must prove that counsel made errors so serious that counsel was not

functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.

When reviewing trial counsel’s performance for deficiency, this court has held that a

“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably

based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful, tactical

decision made during the course of the proceeding.” Adkins v. State, 911 S.W.2d 334, 347

(Tenn. Crim. App. 1994). The reviewing 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). However, “deference to

tactical choices only applies if the choices are informed ones based upon adequate

preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s

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

466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even

if professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that

prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant must show 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.” Id. at 694.

A claim of ineffective assistance of counsel raises a mixed question of law and fact.

Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the

trial court’s factual findings de novo with a presumption of correctness, unless the evidence

preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But

the trial court’s conclusions of law on the claim are reviewed under a purely de novo

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standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.

2001).

a. Failure to Call Lieutenant Hubbard

In a single sentence, the petitioner makes the assertion that “[t]rial counsel was

ineffective in not calling [Lieutenant] Hubbard, who was in charge of the scene . . . .” There

is no further mention of this alleged error anywhere else in the argument section of the briefno law is cited, no contention of what benefit calling him would have been, and no

supporting argument is made. The issue is, therefore, waived. See Tenn. Ct. Crim. App. R.

1

10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.) Although Lieutenant

Hubbard was called to testify at the post-conviction hearing, the issue was not specifically

argued before the court, and no ruling was made on the issue. Without more, review is

simply not possible. From what we do glean from Lieutenant Hubbard’s testimony at the

hearing, we are unable to conclude that it would have affected the outcome of the trial had

he been called to testify at the trial. He was not the first officer on the scene, was not actively

involved in the arrest, and his testimony at the hearing offered little, if any, new information.

No relief is warranted.

b. Failure to Introduce Crime Scene Photographs

The petitioner also claims trial counsel was ineffective for failing to introduce

photographs of the crime scene, which would have illuminated the impossibility of the crime

being committed as it was portrayed by the State. In other words, photographs would have

shown that it was physically impossible for a perpetrator to stand on the air conditioning unit

and look in the bathroom window. He relies upon trial counsel’s testimony that, had pictures

been admitted, the outcome of the proceedings might have been affected.

In denying relief on this issue, the post-conviction court, in its written order, stated:

. . . The only proof presented appeared to be photos that showed that an

air conditioner unit was close to the window in question but not underneath it.

We glean that the petitioner might be making this assertion based upon Lieutenant Hubbard’s post- 1

conviction testimony that the petitioner was identified by the victim after he was handcuffed and placed in

the patrol car. It appears he attempts to use that testimony to buttress his motion to suppress the

identification argument. However, he does not support this contention with citation. Moreover, Lieutenant

Hubbard’s testimony stands in contradiction to that given by other witnesses. Regardless, the issue of

suppression of the identification is addressed below.

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Arguably if someone stood on the air conditioner unit they could not look

directly into the window. There was a footprint on the air conditioner unit

which was alleged to match the pattern of the petitioner’s shoe. The print was

not preserved for presentation at trial. There was no proof that the print

actually belonged to the petitioner but it was suggested that the print matched

the pattern. Although, it appears to the Court that it would require some

physical gymnastics to stand on the air conditioner and look into the window

without something else to stand on, the question in the trial was not that the

crime did not occur but rather the identity of the perpetrator. Therefore, this

court fails to see how the photos of the air conditioner unit and its location

would have made any difference in the verdict. There was never a question of

how the perpetrator peeked in the window. The only question was who was

the perpetrator. The victim made a positive identification of the petitioner on

the scene. The petitioner testified as to his actions and the victim testified as

to her ability to make an identification through a stained glass window. The

jury heard both testimonies and credited the State’s witness. This Court finds

there is no newly discovered evidence and likewise fails to find any evidence

which was not disclosed to petitioner.

We agree with the State that these photographs do not fall within the normal scope of

“newly discovered evidence,” as it is generally applied. Moreover, as we may only review

this issue within the scope of ineffective assistance of counsel, the only issue before us now

is whether trial counsel was ineffective for failing to introduce photographs of the crime

scene. After review, we conclude that he was not.

As noted by the trial court, the issue at trial was identification. It was not contested

that the crime itself did occur, as the victim specifically testified that she saw a face looking

in her window. The jury heard that testimony and chose to accredit it in assuming that the

event had occurred. The victim did not testify as to how the crime was committed, i.e., that

the perpetrator stood on the air conditioning unit. Granted, the State asserted that as its

theory of the case based upon the presence of the footprint. Regardless, the photographs do

not conclusively establish that the petitioner could not have committed the crime in that

matter. As noted by the post-conviction court, while it might have required “some physical

gymnastics” to stand on the unit and peer through the window, it is not impossible that the

petitioner is capable of performing such feats. The photographs do not negate that

possibility. Moreover, testimony from the victim in fact supported this, as she stated that the

face she saw was in the corner of the window, not peering squarely inside. Even if it is

assumed that the air conditioning unit was not used to perpetrate this offense, it still does not

foreclose other methods. The victim saw a face outside her window, and she identified that

face was the petitioner’s. Thus, we cannot conclude that photographs would have affected

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the outcome of the trial, precluding the petitioner from relief.

c. Failure to File a Motion to Suppress

The next issue for review is whether trial counsel was ineffective for failing to file a

motion to suppress evidence based upon an illegal arrest. In order to establish this claim, the

petitioner must show that trial counsel would have been successful in the endeavor to have

the evidence quashed. See State v. Hellard, 629 S.W.2d 4, 11 (Tenn. 1982).

As previously noted, the petitioner bases his argument on Tennessee Code Annotated

section 40-7-103, which provides that, with some exceptions not applicable here, Tennessee

law does not permit an officer to make a warrantless arrest for a misdemeanor not committed

in the officer’s presence. While evidence arising from such an arrest should be suppressed,

only evidence obtained as the result of such an unlawful should be suppressed. State v.

Jashua Shannon Sides, E2000-01422-CCA-R3-CD (Tenn. Crim. App., at Knoxville, May

16, 2001) (citing State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992)). Evidence which is

developed prior to the unlawful arrest need not be suppressed in the prosecution. Id.

In denying relief on this issue, the post-conviction court stated as follows:

. . . Although the petitioner claims his arrest was unlawful because it

was a misdemeanor and was not committed in the officer’s presence he failed

to state what evidence should have been suppressed by his trial counsel. It

appears to the Court that the crime occurred and the victim called the police.

Once the police arrived on the scene and obtained a description of the alleged

perpetrator they began searching the neighborhood. The petitioner was in the

immediate area and matched the description given by the victim. He was

brought to the scene and the victim made a positive identification of the

petitioner. He was then arrested and charged with the above offense. No

proof was presented that any evidence was presented or recovered as a result

of his arrest. There was probable cause to detain the petitioner and return him

to the scene to determine what if any crime occurred and if the petitioner was

the perpetrator. The identification was made before the arrest, therefore there

is nothing to suppress.

According to the petitioner, “all evidence obtained from the scene: the identification,

the testimony regarding the shoe print, etc. was undisputabl[y] obtained after an illegal

arrest.” The State, as did the post-conviction court, disagrees. The State contends that,

although detained and handcuffed at the time of the identification by the victim, the petitioner

was not “under arrest.” If this is correct, then trial counsel cannot be faulted for failing to

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file a motion to suppress the identification, as it would have been unsuccessful. As such,

2

the issue before us turns on when the petitioner was effectively “under arrest.”

Whether an arrest has occurred is not always clear; it is a fact-intensive inquiry. State

v. Ingram, 331 S.W.3d 746, 757 (Tenn. 2011). The ultimate conclusion of whether the facts

establish that a person was under custodial arrest is one of law. State v. Daniel, 12 S.W.3d

420, 423-24 (Tenn. 2000) (stating “the trial court’s conclusion that a seizure did not occur

is a conclusion of law derived from an application of the law to the undisputed facts of this

case”); State v. Nidiffer, 173 S.W.3d 62, 64 (Tenn. Crim. App. 2004) (reviewing issue of

whether defendant was under arrest when he refused to consent to a blood alcohol test under

de novo standard). In Tennessee, the definition of “arrest” is well-established; it is “‘the

taking, seizing, or detaining of the person of another, either by touching or putting hands on

him, or by any act which indicates an intention to take him into custody and subjects the

person arrested to the actual control and will of the person making the arrest.’” State v.

Crutcher, 989 S.W.2d 295, 301 (Tenn. 1999) (quoting West v. State, 425 S.W.2d 602, 605

(Tenn. 1968)). Although “[a]n arrest may be affected without formal words or a station

house booking . . . there must be actual restraint on the arrestee’s freedom of movement

under legal authority of the arresting officer.” Id. at 301-02 (citing 5 Am. Jur. 2d Arrest §

2 (1995)).

While not dispositive, an officer’s telling a defendant he is under arrest is a

substantive factor to consider when determining whether an arrest has occurred. Nidiffer,

173 S.W.3d at 66. Still another factor to be considered in determining whether an arrest has

occurred is whether a “reasonable person” would have concluded that he was under arrest.

Id. at 65-66.

Based upon the testimony of the officers at trial and the facts recited on direct appeal,

it is apparent that the petitioner was placed in handcuffs while he was in the backyard of the

residence. However, it is also abundantly clear that he was informed by officers that he was

being handcuffed and patted down for weapons solely for security and officer protection

purposes because he had no identification and was not cooperative. As the petitioner refused

to identify himself, it was reasonable on the part of the officers to restrain him, as he matched

the description of a suspect in the neighborhood, had no valid purpose for being there, and

could have caused harm. The petitioner was never informed that he was under arrest, and

With regard to a motion to suppress the footprint testimony, trial counsel might have been

2

successful, as the record is somewhat ambiguous as to when the actual formal arrest was made, although it

is clear it was after the identification by the victim. However, as the footprint was never preserved or

conclusively linked to the petitioner, such evidence could not have affected the outcome of the trial. As such,

the petitioner fails on the prejudice prong of ineffective assistance of counsel. 

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no Miranda warnings were given. He was simply being detained to allow for a “show up”

identification because he met the description of the perpetrator and was found at the scene

minutes after the victim’s call to 911. See Terry v. Ohio, 392 U.S. 1, 25-31 (1968). He was

taken to the front of the home, still handcuffed, and identification was made by the victim.

The question then becomes, does the act of placing a suspect in handcuffs necessarily

equate to arrest. After research, we are unable to locate any case explicitly addressing this

issue, nor is one referenced by the State or the petitioner. However, as the State points out,

other jurisdictions, both state and federal, have concluded that handcuffing does not

necessarily equate to arrest, especially when undertaken in the interest of officer security

during a Terry stop with accompanying explanations that the suspect is not under arrest. See

United States v. Miller, 974 F.2d 953, 957 (8 Cir. 1992) (“Numerous cases have held that

th

a police officer’s use of handcuffs can be a reasonable precaution during a Terry stop.”);

United States v. Hastamorir, 881 F.2d 1551, 1557 (11 Cir. 1989) (“The handcuffing of

th

Hastamorir constituted a Terry stop, and was a reasonable action designed to provide for the

safety of the agents”); United States v. Booth, 669 F.2d 1231, 1236 (9 Cir. 1981)

th

(Handcuffing a suspect does not necessarily dictate a finding of custody; strong but

reasonable measures to insure the safety of the officers or the public can be taken without

necessarily compelling a finding that the suspect was in custody); United States v. Glenna,

878 F.2d 967 (7 Cir. 1989) (Ruling that the use of handcuffs did not transform an

th

investigatory stop to an arrest when the officer’s safety was at risk); Cardona v. Connolly,

361 F. Supp.2d 25, 32 (D. Conn. 2005) (Suspect not under arrest where officer handcuffed

her and led her to police vehicle forsecurity while awaiting backup); Bolden v. State, 278 Ga.

459, 462 n.3 (2004) (Defendant transported to police station in handcuffs as safety measure

was not under arrest); State v. Walsh, 495 N.W.2d 602, 605 (Minn. 1993) (Suspect, although

handcuffed, was not under arrest); Turner v. State, 252 S.W.3d 571, 580 (Tex. Ct. App.

2008) (Defendant was not under arrest where officer told defendant before putting him in the

vehicle he was going to handcuff him, for officer safety and not because he was under arrest).

On these facts, we must agree with the post-conviction court that the petitioner was

not under arrest at the time the identification was made by the victim. We find the reasoning

3

of the above cited jurisdictions persuasive in their conclusions that handcuffing does not

automatically equate to an arrest. Additionally, on direct appeal, this court also characterized

the petitioner as being detained, as opposed to under arrest, prior to the identification.

Robertson, No. W2008-01592-CCA-R3-CD. In this case, the petitioner was merely being

detained in order to allow the investigation to be completed. He was specifically informed

In the interest of completeness of review and finality, we note that this conclusion would be the 3

same even had Lieutenant Hubbard testified that he recalled the identification occurring after the petitioner

was placed in the police car. 

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that he was being placed in handcuffs for safety reasons. Although no testimony stated that

the petitioner was specifically told that he was not under arrest, logically, if he was told that

he was being handcuffed for another, separate purpose, he would have implicitly been

informed of such.

Again, nothing in the record before us preponderates against the post-conviction

court’s finding that a motion to suppress in this case would have been unsuccessful. As

noted, trial counsel cannot be faulted for failing to file a futile motion. Thus, the petitioner

is not entitled to relief.

d. Failure to Challenge an Overly Suggestive Identification

The petitioner also challenges trial counsel’s failure to challenge what he describes

as an “overly suggestive” identification. However, he bases his challenge on his own

testimony as to the facts of the case, which is not consistent with the testimony of the police

officers at trial. The petitioner stated that Officer Kraemer escorted the petitioner to the area

where he was detained, and, as he was doing so, he described what the petitioner was

wearing. Additionally, he testified that the victim “identified me when Officer Yzaguirre had

me handcuffed in the back and had a flashlight in my face on the side of her house.”

In Neil v. Biggers, the United States Supreme Court established a two-part test to

determine the validity of a pretrial identification. 409 U.S. 18, 199-200 (1971). First, the

court must determine whether the procedure used to obtain the identification was unduly

suggestive. Id. Then, if the identification was unduly suggestive, the court must determine,

based on the totality of the circumstances, whether the identification is nevertheless reliable.

Id. Tennessee law proscribes so-called one-on-one “showups” unless the showup occurs as

an on-the-scene investigatory procedure shortly after the commission of the crime. State v.

Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989).

As noted, the police officers’ version of the identification stands in contrast to the

story given by the petitioner. Clearly, a credibility determination was made by the lower

court, which favored the officers. As has been reiterated on multiple occasions, it is not the

function or province of this court to reweigh or re-evaluate credibility determinations made

by the trier of fact. See State v. Evans, 108 S.W.3d 231, 234 (Tenn. 2003). As such, we are

left with the testimony of the officers, which was that Officer Yzaguirre handcuffed the

petitioner in the rear of the home, and he was then escorted to the front, where he was

identified by the victim. No mention is made of any “hints” given by the officers to aid the

victim with her identification.

On this record, it is clear that the victim identified the petitioner at the scene of the

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crime, within minutes of its occurrence. This court has routinely countenanced this

procedure of detaining a suspect immediately following a crime to allow time for the victim

to identify the perpetrator. See State v. Tony Ray Billings, No. M2010-00624-CCA-R3-CD

(Tenn. Crim. App., at Nashville, Apr. 14, 2011). We are simply unable to conclude that this

identification was in any way “overly suggestive.” As such, the petitioner has failed to carry

his burden to show an entitlement to relief.

e. Failure to Introduce the 911 Tape

Lastly, the petitioner finds fault with trial counsel for not introducing the 911 tape or

a transcript of the call. According to the petitioner, the tape contains no description of the

perpetrator given by the victim to the dispatcher. The petitioner urges that trial counsel

should have used the tape to cross-examine police officers and the victim, who all indicated

that a description had been relayed. Officers testified that they were provided a “description

of a black man, low haircut, big eyes, a white shirt with a collar and a gold chain.” He

contends this “exculpatory evidence” should have been utilized by trial counsel.

At the post-conviction hearing, trial counsel did review the transcript and agreed that

no description was mentioned. However, trial counsel testified that he made a strategic

decision not to introduce the 911 tape because of concern that the tape contained a statement

by the victim that she was certain of her ability to identify the prowler. Trial counsel was

concerned that this would only heighten the weight the jury gave her later identification of

the petitioner at the scene. We may not second-guess a valid tactical decision. See Adkins,

911 S.W.2d at 347 (A “petitioner is not entitled to the benefit of hindsight, may not secondguess a reasonably based trial strategy by his counsel, and cannot criticize a sound, but

unsuccessful, tactical decision made during the course of the proceeding.”).

Moreover, we take issue with the petitioner’s characterization of this evidence as

“exculpatory,” which would be evidence tending to clear the petitioner of guilt. That is not

the case here. The tape did not contain a description which excluded the petitioner as a

suspect by providing a description which he did not fit; rather, it was simply silent.

Additionally, trial counsel did cross-examine the officers regarding the description allegedly

given and attempted to highlight their varied responses. The petitioner has simply failed to

show that introduction of the 911 tape would have in any way affected the outcome of his

trial.

IV. Cumulative Error

Finally, the petitioner contends that the constitutional errors in this case were

cumulative and highly prejudicial, stating that he should have been granted relief on that

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basis. He contends that this “was a very ‘close case’, riddled with unprofessional and

unconstitutional errors.” However, the petitioner again fails to cite to any authority to

support his argument; thus, technically waiving his argument. See Tenn. Ct. Crim. App. R.

10(b).

Regardless, the petitioner’s argument would fail. A showing of cumulative error

necessarily demands a showing of multiple errors in the underlying proceeding. See Nichols

v. State, 90 S.W.3d 576, 607 (Tenn. 2002). Having previously determined that none of the

above arguments were meritorious, we are unable to conclude that the petitioner is entitled

to relief on this basis.

CONCLUSION

Based upon the foregoing, the denial of post-conviction relief is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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