### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y

6, 200 8

ROB ERT B. CL AR K v. S TAT E OF TEN NES SEE

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 01-05153 Lee V. Coff ee, Judge

No. W2007-01440-C CA-R 3-P C - F iled Jul y 2, 2008

The Appe llant, Robert B. Clar k, appea ls the Shelby

County Criminal Court’s denial of his petition for post-c onviction relief. F ollowing a jury trial, Clark was convicted of sec ond deg ree murder, a Class A felony , and sente nced to se rve twe nty -four y ear s, as a violent of

fende r, in the Depa

rtment of Corre ction. On appe al, Clark conte nds that he wa s denied his S i x t h Am endment rig ht to the eff ective a ssistance of c ounsel. Specifica lly
, he contends that trial counsel was inef fec tive by : (1) failing to investigate and pur sue all possible defe nses; and (2) failing to seek pre -trial suppre ssion of his statement to the police. After revie w of the rec ord bef ore us, we find no err or and a ffirm the denial of post-c onviction relief.

Tenn. R. App . P . 3; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D G. H AYES , S R .J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

R. A nd re w H utc hin so n ( on

a pp e a l) ; Pa

ul G uib a o a

nd R. A nd re w H utc hin so n (at tr ia l) , M e mph is, Tenne ssee, f

or the Appe llant, Robert B. Clar k.

Rob e rt E. Coo pe r, Jr., Attor ne y Ge ne ra l and Re po rt e r; L a c y Wilb e r, As sis tant Attor ney Gen e ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Car

rie Shelton, Assistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION

F actual Background and Proc edural History

Th e re le va

nt u nd e rl y ing fa c ts of the Ap pe lla nt’ s c a se , a s e sta

bli sh e d o n d ir e c t a

pp e a l to thi s
c ourt , a re a s f oll ow s:
During the ea

rly morning hours of Jul y

18, 2000, the [Appellant’s] fiancee
, Ki mbe rl y Pa lmo re , was fo un d s e ve re ly be a te n at th e Cle a

bo rn e Te mpl e ho me le ss-2-

shelter in Memphis wher e she a nd the [ Appellant] had been residing. The victim was transporte d by

ambul an ce to the Re g ional Medica l Center (“ The Med” ) whe re she subsequently

died on J uly

26, 2000, as a r esult of the injuries inflicted upon he r.

. . . . Bobby L ee Ma rshall, the chie f administrator at Cleaborne Temple, testified the victim had bee n living at the T emple’s homele ss shelter for about a m onth and that the [Appellant] had arrived a t about the same time. Dur ing the ear ly morning ho ur s o f Jul y

18 , 2 00 0, Mars ha ll, a lon g wi th Joh n B la zer and Ke ithB ur

re ll, cond ucted a

secur ity chec k in the chape l where about a dozen homeless men a nd

women we re slee ping. When they enter ed the c hapel, the [Appellant], who was

nu de, ju mp e d u

p f ro m be tw e e n s ome c hurc h p e ws and be g an a po log izin g to Marsha ll, wh o t h en hear d the victim gr oan but did not rea liz e she w as injured. Be lieving that t h e [ Appellant] and the victim were having “like an a ffa ir, or somet hing,” Marsha ll told t he [Appellant] to gather his belong ings a

nd leave the fa c ili ty . A s Ma

rs ha ll c he c ke d o n th e vic tim , th e [Ap pe lla nt] disa pp e are d “in

a sp lit second.” Marsha ll f

ound the victim g asping for br eath, a nd he and two othe rs picked up the mattress she w as lying on a nd car ried he r to the ladies’ lou ng e whe re it wa s cooler

. . . .
Sheila Saunders testified tha t she was stay

ing at the Cleaborne Temple shelter on J uly 18, 2000, and had met the victim there. Af ter be ing a

wake ned by

someone she identified a s “Country ,” Saunder s went to the ladies’ lounge wher e she sa w the vic timlyingon

a ma ttr e ss:

Her shirt was pulled up over her he ad. He r b ra wa s p u l led up her e. He r [breast] was showing. H er pa nts and shorts wer e at the bottom of he r ankle s. And bl o o d co m i ng out of the side of he r mouth. Inotice[d] she had a hold [ sic] on the side of her

head.

An ambulanc e ar

rived, a nd Saunders a ccompa

nied the victim to The Med.
The [Appellant ], w e a

r ing a torn T-shirt, ca

me to The Med a

nd asked Saunde rs wh e re the vic timwa s. Sa un de rs tol d the [Ap pe lla

nt] that he wa s in

tr ou ble be c a us e he had “ rape d [t he victim], . . . beat her up a nd choked he r,” to whic h he re plied:

Hey , I didn’t do all that, man, I didn’t rape my own lady

. . . . Iwas be tween the benc hes fuc king and she c alled out Keith’s name and I slapped he r and she g ot loud at me and I slapped her ag ain and she g ot loude r and I put my hand ar ound her and I choked he r.-3- . . . The two . . . went outs ide t o talk wher e the [Appellant] pulled a g un from underne ath his shirt and said, “Ke ith and J ohn, man, was f ucking my

old lady , man, I ’m g oing to kick Dr. Marshall’s ass. .

. . I g ot this . . . for that litt le nig g er f uckin’ my g al.” . . .

D r

. C yn t h i a

G ar dn e r , a n a s s i s t an tm e d i c a l e x a m i n e r f o r S h e l b y C o u n t y, testified that she pe rfor

med t he autopsy on the victim on J uly 26, 2000. The victim’s

cause of death was “c omplications of blunt trauma. The c omplication was that she deve lo p e d

a d u lt r e s p ir a to r

y d is tr e s s s y

n dr o me an d

it w a s [a ] c o mp li c a ti o no f

b lunt trauma to both the hea d and the ne ck.” D r. Ga rdner also found a he morrhag e in the de e p ti ssu e s o f t

he vic tim ’s ne c k w hic h wa s c on sis te nt w ithstr angulatio n.

. . . A ll of the victim’s autopsy

finding s “occ urre d as a r esult of the blunt trauma to the he ad

an d t o t h e n e c k

. ” D r

. G ar dn e r o p i n e d t h a t t h e d e e p h e m o r r h a g i n g w a s c a

u s e d b y a substantial force to the head a nd could have be en produc ed by a “ve ry forc eful blow with a closed f

ist.” . . .

Serg eant James L

. Fitzpatrick of the Memphis Police Depa rtment Homicide Bur eau te stified that he inves tigated the victim’s death and interview ed the [Ap pe lla nt] o n July

28 , 2 00 0, a ft e r a dv isi nghim of his Miranda r ig h ts . The [Ap pe lla nt] s ig ne d a

wa ive r o f r ig hts fo rm

a ft e r i nd ic a tin g tha

t he und e rs too d h is righ t s an d then g ave a

statement which w as re duced to wr iting and sig ned and initialed by

the [Appellant]. Serg eant Fitzpatrick was then permitted to rea d aloud the [Appellant’s] st atement. The [Appellant] said he ha d k n o wn t h e victim for

a lmo st two y e ars , a

nd the y we re to be marr ie d on Au g us t 29 , 2 00 0. Th e [Ap pe lla nt]

a dmi tte d h e and

the vic timha d a

n a lte rc a tio n in

the c ha pe l on July 18 , 2 00 0, be c a

us e “they wer e ‘pimpin’ her .” . . .

. . . . The [Appellant], tes t i fy i ng as the sole de fense witness, said that he a nd the victim had lived toge ther for about a y ear and a half befor e comingto Memphis from B ly the vil le , A rk ans a s, in F e br ua ry 20 00 and we re e ng a g e d to be marr ie d o n A ugus t 29, 2000. . . .

As to what occur

red on J uly

18, 2000, the [Appellant] t estified that he w ent to w he re the vic tim wa s sle e pin g in the c ha pe l to “ c omf

or t her .” Th e vic timtol d h im that B ob by

Mars ha ll a

nd JohnB ra sle y ha d ra

pe d he r. He ari ng thi s, the [Ap pe lla nt] beca me upset and a sked the victim for details. When the victim hesitated to respond, the [Appellant] “hit her, two or three , may be four times. But, onl y on the rig ht side of her jaw.” H e next took his be lt a nd “wr apped it a

round her neck, just a couple of seconds.” The victim then bega n telling him what had been happening to her at the sh e lte r. Af

te r h e ari nga

no ise , th e [ App ella

nt], wh o w a s nud e , to ld t he vic timto

re ma in w he re sh e wa s and the n g ot u

p to wa lk ar ound . H e e nc ounte re d D r. Ma rs ha ll-4-

and ha d a bri e f co nv e rs a tio n with him

. Th e [Ap pe lla nt] re tur ne d to whe re the vic tim was, g ot his “short pants,” and told the victim he would be rig ht ba ck. He then went upstairs, pac ked his bag s, and left the she lter. He went “[d]own the street to an ope n field,” put his bagbehind a bush, a nd waited f

or about a n hour befor e returningto the sh e lte r a nd wa iti ngfo r t

he vic timfo r a

bo ut t hir ty min ute s.

Stat e v. Ro be rt C

lar k , No. W2003-00940-CCA-R3-CD (Tenn. Crim. App. at J ackson, June 18, 2003), perm. app. de nied
, ( T e n n

. O c t

. 2 7 , 2 0 0 3 )

. O n D e c e mb e r 1 4 , 2 0 0 1 , f o l l o w i n g a

t r i a l b y j u r

y, t h e A p p e l l an tw a s c o n v i c t e d o f s e c o n d d e g r e e m u r d e r , a C l a s s A f e l o n y, an d s e n t e n c e d

t o t w e n t yfour y ear s in the Depa

rtment of Corre ction, to be serve d at 100 per cent a s a vio l en t o ff en d er. Id

. After his conviction, the Appellant appea led t o this court, challeng ing the sufficie ncy of the e vidence and a jur y instruction reg ardingthe def initions of the menta l states p er t ai n i n g t o second de g ree murder. Id . Following revie w, a pa nel of this court a ffirme d the conviction. Id

. On October 1, 2004, the Appellant filed a pr o s e p et i t i o nfo r p o s t -c o n v i ct i o nre l i ef al l egi n g,
a mon g oth e r g ro un ds , th a t he wa s den ie d the e ff e c tiv e a ssi sta

nc e of c ouns e l in

vio la tio n o f h is Si xth Amendment rig ht. F ollowing the appointment of c ounsel, an amended pe tition for post-conviction relief was filed on J une 24, 2005. A hear ing was held on May 11, 2007, at which only the Appellant and trial c ounsel testified. The A ppellant testified that trial counsel had failed to adequately meet with him, had failed to prope rly prepa re a n available defe n s e, an d h ad fa iled to challeng e the

a dmi ssi on

of his state me nt t o p oli c e . A c c or din g to t he Ap pe lla

nt, tr ia l c ouns e l on ly

me t w ithhim in ja il o n tw o o c c a s io n s an d o n ly b r ie f ly s p o k e w it

h th e A p p e ll an t a t h is c o u rt a p p e ar ance s. The Appellant fur

ther testified that he informed tr ial counsel that his statement to the police was fa lse and was obtaine d by coer cion. He related that, althoug h he informe d trial counsel that his statement wa s
coer ced, no suppression motion wa s filed prior to tr ial. He a cknowledg ed, howe ver, that a motion was filed a

nd a suppre ssion hearingwas he ld following the State’s p ro o f, wi t h the motion being denied. Moreove r, the Appellant g ave very confusingand ofte n conflicting testimony conce rning his de c isi on to te sti fy a t tr ia l. Ac c or din g to the Ap pe lla nt, tr ia l c ouns e l fa ile d to p ro pe rl y inv e sti g a te and pre sent evidenc e in support of a possible the ory of defe nse, that being an interve ning c ause of death. Spec ifically , he asse rted that B obby Marsha ll or som eone at Cleaborne Temple c ould have inflicted fur

ther injury

on the victim after

the Appellant lef

t the Temple or that substandard c are by medical pr ofessionals at The Med had a ctually cause d the vi ctim’s death. The Appellant alleg ed that tr ia l couns e l ha d f

a ile d to fi nd

wi tne sse s w ho we re a t Cle a bo rn e Te mpl e wh o c ou ld h a ve po ssi bly seen something afte r t he Appellant’s depar ture from the s cene . He did, howe ver, a cknowledg e that trial counsel ha d obtained the se rvice s of an investig ator to locate pot ential def ense w itnesses. He further faulted tria l counsel for

failing to introduce e vidence reg ardingchar g es which w ere pending at the time aga inst Bobby Marsha ll for an alleg ed ra pe, espe cially

in light of Mar shall’s inconsistent statements re g ardingthe location whe re the victim wa s found. Finally
, the Appellant asse rted that trial counsel should have spoken with an independent m edica l expert reg ardingthe possibilit y of an interveningcause of death, rather than r e ly in g upon his discussion with t he county medical e x aminer.

I n contra diction to the Appellant’s testimony , trial counsel s t at ed t hat he met with the Appellant numer ous times and discussed the fa cts of the c ase w ith him at len gt h

. Trial counse l-5-

te sti fi e d th a t it

wa s und isp ute d that the Ap pe lla nt ha d c on fe sse d to str iki ng and str ang lin g the vic tim

. Howeve r, the Appe llant insisted that he had not cause d the victim’s death. The Appellant informe d trial counsel that it was possible some one else, possibly Bobby Marsha ll, at Cleaborne T emple had assaulted the vic tim a second time af ter the A ppellant left or tha t h er d ea t h h ad re sulted from the neg lige nt treatment of the attending phy sicians at The Med. I n response , trial counsel state d that he ha d a n inve sti g a tor

g o to Cle a

bo rn e Te mpl e in s e arc h of p os sib le wi tne sse s. Th e inv e sti g a tor a lso ch ec k ed u t ility

rec ords and other

leads provide d by

the Appellant, but the investig ator wa s
unsucce ssful in locating any potential witnesses. More over, tria l counsel stated that he subpoenae d the victim’s medical r ecor ds from The Me d and re viewed those rec ords with Dr. Ga rdner, who perf ormed the a

utopsy on the victim. Ba sed upon the medical examiner’s statements, trial counse l did no t be lie ve it n e c e ssa

ry to c on du c t any

fu rt he r i nv e sti g a tio n int o the c a us e of de a th o f t

he vic tim

or to re ta in an ind e pe nd e nt expe rt

. Tr ia l couns e l fur the r state d tha t the Ap pe lla nt’ s a sse rt ion s w ith reg ard to B obby

Marsha ll were nebulous at best and that Marshall had r efuse d to s p ea k wi th the investigator. Reg ardle ss, trial counsel stated that Marshall had no pr ior convictions which c ould be

us e d f or imp e a c hme nt p ur

po se s and that any pe nd inga lle g a tio ns of

m i s c o n du c t a t Cle a

bo rn e Te mpl e
wer e not re levant in the Appe llant’ s t ri al. Fina lly , with reg ard to the A ppellant’s stateme nt to the police, trial c ounsel testified that the Appellant failed to infor m him that the statement was coe rce d until im mediately

prior to trial. Moreove r, althoug h a motion to suppress was hear d during the trial pr oc e e d i n g , t r i a l c o u n s e l s t a t e d t h a ti tw a s b e n e f

i c i a l t o a l l o w t h e A p p e l l an t ’ s s t a t e m e n ti n to evidenc e, as it conta ined ce rtain statements w h ich aided the Appellant’s de fense . Finally , trial

co u n s el t es t i fi ed t h at h e t ri ed t o fo l l o w ev ery l ea d an d t o i n v es t i gat e a l l p o s s i b l e d ef en s es , al t h o u gh he eve ntually

defe nded upon the g round that the crime was, at best, manslaug hter, ba sed upon the Appellant’s state ment that the two had e ng ag ed in a he ated a rg ument prior to the homicide.

At the conc lusion of the hear ing, the Appellant’s pe tition for post-conviction relief was denied. This timely

appea l followed.

Ana lys is
On appe al, the Appe llant argues that the post-c onviction court er red in findingthat he wa s
n o t denied his Six th A mendment rig ht to the eff ective assistance of counsel. To succe ed on a challeng e of ine ffe ctive assistanc e of c ounsel, the Appellant bears the burden of establishing the alleg ations set forth in his petition by clea r and convincing evidenc e. T.C.A. § 40-30- 110(f) (2006). The Appe llant must demonstrate that counsel’s repr esentation fell below the ra ng e of c ompetence demande d of attorney s in criminal case s. Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975) . Under S t r i ck l a n d v. W

ashington
, 4 6 6 U

. S

. 6 6 8 , 6 8 7 , 1 0 4 S

. C t

. 2 0 5 2 , 2 0 6 4 ( 1 9 8 4 )
, a p e t i t i o n e r

mus t establish (1) de ficient pe rfor mance and (2) pr ejudice r esulting f rom the def

iciency . The pe titioner is not entitl ed to the bene fit of hi ndsight, may not second- g uess a rea sonably based tria l strateg y , and cannot c riticize a sound, but unsucce ssful, ta ct i ca l decision made during the cour se of the proce eding s. Ad

k ins v . S tat e , 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994) . This de fer ence to the tactica l decisions of trial counse l i s d ep endent upon a showing that the dec isions were ma de af ter adequate pre paration. Coo pe r v . S tat e , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992).-6-

I t is unnecessa

ry for a court to add re s s d eficiency and pre judice in any

particula r orde r,
or eve n to addre ss both if the petitioner makes a n insufficient showing on either. Strickland , 466 U.S. at 697, 104 S. Ct . at 2069. I n order to establish prejud i ce , the petitioner must establish a “re asonable probability

that, but for counse l's unpr ofessional e rr o rs , the re sult of the proce eding

wo u l d h av e bee n differ ent. A re asonable probability is a probability

sufficie nt to undermine confide nce in the outc ome.” State v. Burns , 6 S

. W

. 3 d 4 5 3 , 4 6 3 (T en n

. 1 9 9 9 ) ( qu o t i n g Strickland
, 466 U.S. at 694, 104 S. Ct . at 2068).

The issues of de ficient pe rfor mance by counsel a nd possible prejudice to the defe nse ar e mix ed questions of lawand fa ct. Id. a t 46 1. “ [A] tr ia l c ourt ' s findings of fact underlying a

claim of ineffe ctive assistance of counsel are revie wed on a ppeal unde r a de novo sta

nd ard , a c c omp anie d w ith a pre sumption t hat those finding s are corr ect unless the preponde ranc e of the e vidence is otherwise.” Fi e lds v . S

tat e , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) (c iti ngTe nn

. R. Ap p. P. 1 3( d) ; He nle yv . S tat e , 960 S.W .2d 572, 578 (Tenn. 1997) ). Howe ver, conclusions of law
, ar e r e v i e w e d u n d e r a p u r e l y de novo standard w ith no presumption that the post-conviction court' s findings a re c orre ct. Id.

On appe al, the Appellant argues that the evidenc e pre sented at the post-conviction hea ring preponde rate s ag ainst the court’ s finding that trial counsel’s pe rfor mance was not below the standard set forth in B a

x t e r v

. Ro se wi t h re gar d to the investigation of the ca se and possible theor ies of de fe ns e

. Spe c if

ic a lly , th e Ap pe lla

nt “ ma int a ins his c onte nti on that th e re wa s an in te rv e nin g c a us e of death,” which should have been inve stigated. He asser ts that “ the intervening cause of death wa s
e ith e r a c tio ns take n b y

B ob by Mars ha ll o r m e dic a l ma lpr a c tic e .” Ac cord in g to t he Ap pe lla

nt, if “these theories [had] been prope r[l] y investigated and fully

litigated at trial [t ]he results of the trial may very well have been dif

fer ent.” Additionally , the Appellant c ontends t h at trial counsel wa s ineffe ctive by

failing to file a motion to suppress the Appellant’s statement t o police unti l well afte r the trial wa s underwa

y . He c ontends that this error “af fec t e[ ed ] t h e v er y

foundation of [the Appellant’s] trial strateg y [,] [and] [t ]he decision on whether to testify on his . . . own behalf.”

I n its wr i tten order

denying post-c onviction relief, the court found, in r eleva nt part, as fo llo ws : Th e [Ap pe lla nt’ s] com pla int that couns e l e rr e d b y fa ili ngto m e e t a de qu a te ly wi th [the Ap pe lla

nt] p ri or to t ri a l and fa ile d to a de qu a te ly int e rv ie w the [Ap pe lla

nt] reg ardingpossible defe nses is unfounded. . . .

. . . This Court resolves issues of c redibility ag ainst t h e [ Ap p ellant] and

acc redits the testimony

of trial counse l. . . . This [ Appellant] is not worthy of belief

. The [Appellant] does not specify what other

d ef en ses counse l should have pursued. The [Appellant] testified that he wante d trial counsel to “se ek the truth a nd that so me on e mig ht h a ve c ome up wi th t he tr uth” . T he [Ap pe lla nt] e sse nti a lly wanted tr ial counsel to prove that “it’s a possibili ty that someone else did this”. Trial counsel testified that the [Appel l an t ] re jected a ll offer s and insisted that the [App e ll an t] d id n o t k il l an y o n e

. T r ia l c o u n s e l te s ti f ie d th a t th e o n ly d e f

e nse wa s-7-

Voluntary

Manslaug hter a s the [Appellant] claimed that the vi ctim had ange red the [Appellant] during sex by alleg edly admitting to having sexual relations with other men. The [Appellant’s] theory wa s either someone else killed the victim at Cleaborne Temple or that medical tre atment was ina dequate . Trial counse l pursued all ang les but co rre ctly

conclude d that the [Appellant’s] theories wer e mer e speculation.

[W ith reg ard to the motion to suppress, it ] was not hea rd bef ore tria l as the [Appellant] never

complained a

bout an involuntary

statement to trial counse l. Trial counsel testified that the [Appellant] raised a n involuntary statement shortly befor e tr ia l. T ri a l c ouns e l sa

w n o r e a so n to fi le any

a dd iti on a l motio ns a s tria l couns e l “ did not want to tip his hand to the state”. The t ri al cour t hear d and denie d the [Appellant’s] m otion to suppress. The [Appellan t ] admit ted at his evidentiar y hear ing that he lied t o t h e trial court during sentenc ing a nd during the suppression he ari ng . T he [Ap pe lla

nt] a lso lie d in

his e vid e nti ary

he ari ng . T he [Ap pe lla

nt] te sti fi e d und e r o a th t

hat he de c ide d no t to te sti fy a t tr ia l a ft e r t

he tr ia l c ourt

de nie d h is motion to s uppress. The trial rec ord shows clea rly that the [Appellant] l ied ag ain as the [Appellant] di d in fac t testify at trial.

. . . .

. . . [Wi th

r e g ar d to p o s s ib le d e f

e n s e s , tr ia l c o u n s e l] te s ti f ie d th a t t he [Appellant’s] statements wer e “nebulous” and that the “ [Appellant] was sendingus
on fishing expeditions and we went fishing”

. The [Appellant] wanted tr ial counsel t o “go o u t an d s ee wh at y o u co u l d fi n d ”. As t es t i fi ed[ t o ] at t h e e v i d en t i ary h ea ri n g, trial counsel a

nd his investigator

did the best that they

could.

. . . . [W ith reg ard to trial c ounsel’s dec ision not t o seek inde pendent r eview of the victim’s medical re cords,] [t ]rial counsel testified that he did not see a par ticularized need to a sk for a

n expert witness to review the finding s of the Medic al Examiner’s Of fi c e . T he [Ap pe lla

nt’ s] th e or

y of de fe ns e wa s w ho lly

sp e c ulativ e ; so me on e e lse could have beate n the victim after the [Appellant] was evicted from the Temple or that the victim r ece ived neg lige nt me dical trea tment. T rial Counsel testified that he revie wed the me dical re cor d s wi t h Dr. Cy nthia Gar dner a

nd that she wa s very helpful. Tria l counsel testified fur ther that he believes that t he Assistant Medica l Ex aminer is an inde pendent a nd objective medic al expert whose finding s were not all one sided. Trial counsel insisted that there wer e no medical fac tors that indicated that the victim rec eived ne g lige nt medical ca re. . . .

F ur the r, [the Ap pe lla

nt] ha d a dmi tte d that he str uc k a nd c ho ke d th e vic tim

. Pneumonia and liver infe ction contributed to the c ause of death of this v ictim and-8-

wer e re lated to the injuries that the [Appellant] admitt ed commit ting a g ainst the victim. Dr. Gar dner sa

w nothing in the victim’s medical re cords that would have indicated that the vi ctim rec eived inade quate medic al treatment. The [Appellant] has failed to produc e at his evide ntiary hear i n g an y medical pr oof that contra dicts the fi nd ing s and

te sti mony

of Dr . G ard ne r. Th e re fo re , th is i ssu e is a lso wi tho ut m e ri t.

F oll ow ingre vie w, we fi nd no thi ngin t

he re c or d wh ich pr e po nd e ra te s a g a ins t th e po stconviction cour

t’s extensive findings. Cl ear ly
, the cour t acc redited the testimony

of trial counse l and wh oll y dis c ounte d th e te sti mony of th e Ap pe lla nt, wh om h e fo un d to be un tr uth fu l on mul tip le

occa sions. As conce ded by th e Ap p el l ant, issues of cr edibility of witnesses a

nd the weig ht to be g iven t heir testim ony are to be resolved by the t rier of fac t. See H enley
, 960 S.W .2d at 579. I t is not the province of this court to rew eig h such dete rminations.

Whe n a pe tit ion e r i n a

po st- c on vic tio n p ro c e e din g a lle g e s th a t tr ia l c ouns e l w a s d e fi c ie nt i n failing to pursue a motion t o suppress or pe rfor m in a specific manner , it is t he petitioner’ s burden to establish by

clea r and convincing evidenc e (1) the motion to suppress would have be en g rante d and that the petitioner’s alleg ation of defic ient perf ormanc e has merit; and ( 2) that had tria l counsel pe rf or me d as su gg est ed, the re is a re a so na ble lik e lih oo d th e re su lt w ou ld h a ve be e n d if fe re nt. Cle arl y , c ouns e l c ann ot b e c on sid e re d in e ff e c tiv e fo r f

a ili ngto p ur su e a

mot ion that is wi tho ut m e ri t. I n this case, the A

ppellant has fa iled in both respec ts with reg ard to his re quired burde n of proof

.
CO NC LU SION

Ba sed upon the for eg oing, the Shelby County Criminal Court’s denial of post-convic tion relief is affirme d.

___________________________________ DAVI D G. HAY ES, SENI OR J UDGE