### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

anuary 23, 2001 CHARLES FRANK GRIFFIN v. STATE OF TENNESSEE Appeal from the Criminal Court for Hamilton County No. 221799 Douglas A. Meyer, Judge

No. E2000- 00584-CCA- R3-PC April 17, 2001
The Hamilton County Criminal Court dismissed Charles Griffin’s petition for post-convict io n relief. Asserting claim

s of ineffective

assistance of co

unsel, he appeal

s. Finding no err

or, we affirm. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. Mike A. Little, Chattanooga, Tennessee, for the Appellant, Charles Frank Gr iffin.
Paul G. Summers, Attorney General & Reporter; Glen C. W at son, Assistant Attor

ney Gener

al; William H. Cox, III, District Attorn ey Genera

l; and Dean C. Ferraro, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

The petitioner, Charles Grif fin, appeals the Hamilton County Criminal Court’s dismissal of his 1998 petition for post-conviction relief. Hewas convicted in that court in 1995 of two counts of aggravated robbery, a fter a 1994 mistrial of the charges. He received consecutive 30- year sentences. This court affirmed the convictions. See State v. Charles Frank Gr iffin , No. 03C01- 9608-CR-00287 (Tenn. Crim. App., Knoxville, May 7, 1997), perm. app. denied (Tenn. 1998). The post-conviction petition claims that various actions and omissions of trial counsel deprived him of the effectiveassistance of counsel. The post-conviction court appointed counsel for the petitioner and held an evidentiary hearing, after which it dismissed the petition. This appeal follow e d. On appeal, the petitioner clams only that (1) counsel failed to move the trial court to

suppress evidence from a pretrial identification procedure and (2) trial counsel failed to adequately investigate the case

. After a review of the record, the briefs, and the applicable la

w, we affirm the

judgment of the po

stconviction court.-2- A. The Petitioner’ s Trial.
The evidence at the petitioner’s trial showed that, on the morning of April 28, 1994, a m an entered a Cha

ttanooga labor

union office whe

re two female em

ployees, the

victi ms, wer e working. Both victims observed the petitioner from close range when he asked for andreceived busfare change from the victims. The petitioner then pulled a pistol, took the victims’ purses, and left th e building. Later, one v ictim described th

e robber as bein

g a black man in h

is forties, six-fee

t, four-inches tall, and weighing 160 pounds. The othervictim described him as being six-feet, twoor three-inch es tall, wei ghing 170 pou nds, and hav ing hi gh cheekbones. Both women provided relatively consistent details concerning the robber’s clothing.

A few days later, the

victims separately viewed police “mugbooks” and photograph lineups containing in total approximately 600 photographs and including a photograph of the petitioner. Bo t h women selected the petitioner’s photograph. Both of them identified him as the robber at the pre

liminary hea

ring and agai

n at trial.
On the morning of the robbery, a man working at a house a cross the street

from the union office saw a black man drive a gray or silver car slowly thr

ough a nearby gravel alley. The worker later identified

the vehicle from a building-surveillance videotape which had recorded the exterior of the union office at the time of the robbery. The tape show ed the car leaving the cri

me scene and moving toward the gravel alley where the worker

observed it. From the videotape, officers identified the car as a Mercury Sable. They determined that

the petitioner owned a tan or light brown Mercury Sable that had hubcaps similar to the Sable in the video.

The petitioner did not testify but produced a witness who had sold a Mercury

Sable to the petitioner. That Sable was tan or light brown in color.

The jury convicted the petitioner of two counts of aggr avat ed ro bbe ry, and the trial court imposed cons

ecutive 30-y

ear sentences. B. The Post -convicti on Hearing.
At his post-c onviction hearing, the petitioner testified that, although his preliminary hearing lawyer challenged – albeit unsuccessfully – the photographic id

entification proc

edures, his trial attorney failed to move to suppress the results of the procedure or the victims’ identification of the petitioner

in court. He alleged that he met with his trial counsel only twice before his first trial in 1994, which ended in a mistrial following a jury impasse, and he met with her twice more before his retrial. He complained that she failed to discuss trial strategy with him.

The petitioner further testified that he told his trialcounsel that he was at work at a funeral homewhen the robbery occurred, that he had a flat tire at the f uneral home that morning, and that a minis ter at th e funeral home a nd Detective Mood

y with the poli

ce department sa

w him changinghis tire. He complained that counsel did not send her investigator to interview the minister-3-

and Moody until seve

ral m onths after the robbery, a delay which impaired the proposed alibi witnesses’ ability to re

call the flat-tir

e incident or to

articulate it

in terms of April 28, 1994, the day of the robbery. Moody did not remember the f lat-tire scene, and the minister did not remember if

it occurred on the day

of the robbery. The petitioner testified that his trial counsel disdained the use of alibi witnesses

.

The petitioner further complained that, at trial, police d etect ive Kennedy denied searching the petitioner’s sister’s house, where the petitioner was arrested, even though , at the preliminary

hearing, Kennedy testified that he had searched th

e house. His lawy

er failed to

use this inconsistency

to impeach Kennedy

at trial. The petitioner fu

rther testified th

at Kennedy

inaccurately listed the petitioner’s weight on the arrest form as 170, when the petitioner weighed 220 pounds at that time. The petitioner maintained that the videotape did not show his vehicle. He testified that his vehicle was a different color and, at the time, was running on a temporary

“donut” tire, just as it was when he was arrested a week after the robbery

. The vehicle in the video had no “donut” tire.
Fin all y, the petitioner c omplai ned that his trial counsel failed to exploit the state’s misconduct

in presenting as evidence a shirt that it maint ained the petitioner wore during the rob bery, despite the state h aving presente

d a different shi

rt for this purpose during the preliminary hearing.
Trial counsel , an a ssistant public defender, testified that her office’s investigator interviewed

Detective Moody, the minister at the fun eral home, the petitioner’s sister, and other personnel at the funeral home. The investigator was unable to establish through the funeral home that the petitioner worked during the week of April 28, 1994. Counsel admitted that the investigator didnot talk to the ministe r and Moody u

ntil shortly be

fore the first tr

ial, when the state’s motion to compel disclosure of an a libi defense prom

pted the intervie

ws. She testified, “[W]e just had never talked to anybody until right on the eve of us ha ving to provide something to the state.”
In the petitioner’s first trial, counsel relied upon a reasonable doubt strategy which she advanced by

rigorously

cross-examining

the victims. The fir

st trial ended in

a mistrial after the jury deadlocked nine

to three in favor of conviction. One juror told defense counsel that the police department

had inadequately investigated the case and that a witness’ de scription of

the car did not match the car in the video. Counsel test ified that “that ju

ror kind of just told u

s someof the thin gs that we’d been

arguing ... really sway

ed them.” Counsel opted for the same strategy at retrial. She acknowledged

that she considered asking for funds to hi re an expert on eyewitness testimony but never “got around to doing it because of [her] case load.” Counsel stated tha t, at the retrial, the victims were better prepared and presented stronger testimony

.

Trial counsel acknowledged that she filed no mot i on to suppress the e

yewitness identifications,

even though any

lawyer sho

uldhave filed the motion. When asked why she failed-4-

to file the motion, she said, “Simply because I didn’ t do it” and

because “[I had ] a hundred clients at the time and I was barely making it fr om day to day

trying to ha

ndlemy clients. . . . I just never got around to filing it in Charles’ case.” She stated that she opted to raise the identification question withthe jury. She

declined to use the

alibi witnesses be

cause she believ

ed their uncertainty

would damage the petitioner’s case.

She testified that she

had read the pre

liminary hea

ring testimony

, and in the first

trial, she cross-examined Detective Ke nnedy about his preliminary

-hearing admis sion that he had searche d the petitioner’s sister’s house; howev er, at the r etrial, she was pr ecluded by

the court from cr

ossexamining Kennedy concerning the discrepancy

. Fin all y, she did not know whether her investigator checked the funeral home’s work re cords or interviewed the construction worker witness. She acknowledged that, after look ing a t the file, “[T]here was a lot of stuff I hadn’ t gotten to . . . in a t imely fashio

n. . . . I tend to procrastinate.”
Post-conviction counsel announced to the post-conviction court t hat funeral home employment

records for Apr

il 1994 could not n

ow be r etrieved. After the court made extensive findings of fact on the record, which are summarized in the pertinent sections below, it dismissed the petition. C. Applicable Law.
1. Post-conviction

.

In a post-conv iction pro ceeding, t he burden is on the petitioner to esta

blish his allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the post-conviction court’s findings of fact are given the weight of a jury verdic t and are conclusive unless the evidence preponderates against them. Clenny v. State , 576 S.W.2d 12, 14 (Te nn. Crim. App. 1978). The issue of the ineffective assistance of counsel embraces mixed questions of law and fact and, on appeal, is reviewed de novo

. Jehiel Fields v. State , - - - S.W.3d - - -, - - -, No. E1999- 00915-SC-R11-PC,

slip o p. at 5 (Tenn. Feb. 20, 2001); State v Burns , 6 S.W.3d 453, 464 (Tenn. 1999).
2. Ineffective Assistance of Counsel

.

When a post-conviction petitioner seeks relief on the basis of ineffective

assistance of counsel, he must establish that the service rendered or the advice given was below "the range of competencedemanded

of attorneys in crimi

nal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Also, he must show that the deficiencies "actually had an adverse effect on the d efense." Stric kland

v. Was hington , 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must be a reasonable

probability that, b

ut for counsel's e

rrors, the resul

t of the proceedi

ng would have been-5-

different. Id . at 694, 104 S. Ct. at2068; see Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the petitioner fail to establish either factor, he is not entitled to relief.

The scrutiny of counsel's perfo rmance must be "highly deferential," and the reviewing court must refrain from concluding "that a particular act or omission of counsel was unreasonable" merely because the strategy employed was unsuccessful. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065. "A fair assessment," the United States Supreme Court has said, entails making every effort to "eliminate the disto

rting effects of

hindsight" and eval

uating th e "con duct from counsel's perspective at the time." Id. , 104 S. Ct. at 2065. The court promulgated a "strong presumptionthat counsel's conduct falls with in the wide range

of reasonable

professional ass

istance." Id. , 104 S. Ct. at 2065. The court added:

[S]trategic

choices mad e after thorough investigation of law a nd facts releva nt to plausible options are virtually unchallen geable ; and strategic choices made after less than complete investigation ar e reasonable pr ecisely to the extent that reasona ble professional judgments suppor t the limitations o n investig atio n. In other words, c ounsel has a duty to make reasonab

le investigations or

to make a reasonable decision tha t makes particular investigation unnecessary.
In any ineffectiveness case, a particular decision not to i nvestigate must be directly assessedfor reasonableness in all the circumstances,

applying a heavy measure of deference to counsel's judgments.
Id . at 690-691, 104 S. Ct. at 2066.

With respect to the prejudice prong of ineffective assistance

of counsel, a showing that "errors had some conceivable effect on the outcome of the

proceeding" is

insufficient. Id. at 693, 104 S. Ct. at 2067. Rather,

the post-convicti

on petitioner must

show that there is a

"reasonable pro

bability that, but for counsel's u

nprofessional er

rors, the result o

f the proceeding

would have been diffe

rent. A reasonable pro

bability is a probability sufficient to undermine conf

idence in the outc

ome." Id. at 694, 104 S. Ct. at 2068. In assessing the claim of prej udice , the "court should presume, absent challenge to the judgment on grounds of e videntiary insufficiency, that the judge or jury acted according to law." Id. , 104 S. Ct. at 2068. Th e reviewin

g court must consi

der the "totality of the evidence before the judge or jury" and should

take into account the relative strength or weakness of the evidence supporting the verdict or conclusion. Id. at 695, 104 S. Ct. at 2069.
D. The Petitioner’ s Issues.-6- We will now address the petitioner’s specific allegationsof ineffective assistance of counsel as he has

presented them on

appeal.
1. Trial counsel failed to move to suppress evidence obtained from a photographic lineup

.

The post-conviction court found that trial counsel’s failure to move to suppress the id entification evidence was the result of a heavy

caseload and not

a matter of strat

egy; howe

ver, it found that “even had c

ounsel filed a motio

n to suppress the id

entific ation evidence, it would have been denied because the victims’ identifications of the petitioner were reliable.” The court stated that it had reviewed

the factors applicable to determining a motion to suppress evidence emanating from an identification procedure and had found that

a motion to suppress

would have been u

nsuccessful. Thus, the court determined that, even if cou nsel defic iently performed in not filing a suppression motion, the petitioner failed to demonstrate prejudice.

Our review of

the trial court’s ruling leads us to the same conclusion. D

ue process is violat ed when an identif ication procedur

e is so suggestiv

e that it occasion

s a “very su

bstantia l likelihood of irreparable

misidentification.” Simmons v. United States , 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968). On the other hand, even suggestive pretrial identification procedures may result in reliable identifica ti ons and, therefore, admissible out-of-court and in-court identifications. Neil v. Biggers , 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972). In Neil , the High Court listed factors which courts should use in deter mining the reliab

ility of the id

entific ation and its admissibility into evidence: 1. The opportunity of the witness to vie

w the criminal at th

e time of the crime; 2. The witness’ degree of attention at the time of the crime; 3. The accuracy of the witness’ prior description; 4. The level of certainty demonstrated at the confrontation; and 5. The length of time between the crime and the confrontation.
Id . at 199-200, 93 S. Ct. at 382.

In the pre sent case, the two victims observed the robber at close range and in good light before the stre

ss of a crime-in-

progress develop ed. Then, both victims observed the robber during his display of th e weapon and wa

tched him exit the buil

ding. One of the

victims ha d “experience” at being a robbery victim and testified that, during this robbery, she concentrated on the appearance

of the robber. Within minutes of the robbery, the victims gave to police detailed, substantially

consistent descr

iptions of the robbe

r and his cloth ing. The victims viewed the police photographs separately, and both selected the petitioner’s picture. There is no palpable

suggestion in the record before us which indicates that the pre-identification descriptions were inaccurate, except that the petitioner testified at the pos t-convic tion hearing that his weight at the time of the robbery was 220 pounds, not the 160 or 170 pounds stated by the victims. The victims were cer

tain in their-7-

identifications of the petitioner, and they als

o identified him at t

he preliminary

hearing and at

both trials. The photographic identification procedure occurred within a few day s of the robbery.
Based upon the foregoing characteristics of the identification procedure, the petitioner failedto make a clear a

nd convinc

ing showi ng that a motion to su

ppress wo uld have h

ad merit. We conclude, upon de novo review of the issue, that th e petitioner fail

ed to establish the prejudice prong of this claim of ine

ffective assista

nce of counsel.
2. Trial counsel’s failure to interview prospective witnesses

.

Th e petitioner complains that his counsel failed to investigate his funera l hom e employment

records, failed

to interview the construction worker who saw the getaway car, failed to timely interview the prospectivealibi witnesses, a nd failed to

develop proof that the petitioner had taken his girlfriend to the dentist on the day of the crime.

The post-conviction court expressed concern about the seven to ten mont h delay in interviewing t he p rospective alibi w itnesses, but it foun

d that “the investig

ation that counsel

did undertake in this respect contradicted the petitioner’s account of events.” Moreover, it found a lack of “clear and con vincing ev idence that any delay in the investig ation was prejudicial.” Also, the post-conviction court found that the petitioner failed to show that his counsel deficiently performed when she failed to inve

stigate his employ

ment records and

that, even if the p

erforma ncewas deficient, there was no showing of prejudice. We note tha t the petitio ner was unable to recover the funeral homeemployment records for use at the post-conviction hearing. The c ourt did not specifi ca lly ment ion th e failure to interview the construction worker or to develop proof concerning the petitioner ’s trip to his girlfriend ’s dentist’s offic e; however, no pr

oof was offere

d at the postconviction heari

ng which showed

what fruits would h

ave been borne b

y these add

itional inquiries.
Trial counsel’s stark admission of her procrastination and her failure to pursue certai

n tasks in preparing the

petitioner’s cas

e for trial belie

s any noti on th at she sufficien

tly perfor med in the preparation stage. Were we pressed to the point, on de novo review we might well disagree

with the trial court that

the petitioner faile

d to establish defic

ient performanc

e in counsel’s fa

ilure to locate and analyze the funeral home’s employme nt records. We need not address the deficiency of her performance, however, beca use the petitioner simply failed to demonstrate “a

reasonable pro

bability that, but for co

unsel’s [a lleged sh ortcoming

s in trial p reparat ion], the result of the proceeding would have been different.” Strickland , 466 U.S. at 694, 10 4 S. Ct. at 2068 . In other wor ds, he failed to prove by clear and convincing evidence that he was prejudiced. In none of the alleged instances of failure to investigate di

d he establish wha

t facts would have been revealed by further investigation. Of all of these issues, we have the most concern about the possible spoliation effect of the delay in

memorializing the

prospective alib

i witnesses’ information. I n the case of the minister at the funeral home, the delay may have foreclosed any determination that the flat-tire incident occurred on the morning of the robbery. Assuming that it was this flat-tire incident which resulted in a “donut” tire la

ter appearing

on the petitioner’ s car, a timely memorialization of t

h e minister’ s-8-

knowledge of when the event occurred may have been especially critical to the defense. This issue is ultimately controlled, however, by the post-conviction law, which requires the petitioner to prove his claims by clear and convincing evidence. We cannot spec ulate that the minister or any o ther witness wou ld h ave o ffer ed cr edi ble , ex cul pat ory ev ide nce h ad h e bee n in ter vie wed mor e pro mpt ly.
E. Conclusion.
Based upon this analysis, we conclude that the trial court’s judgment is supported in the record, and we affirm the dismissal of the post-conviction petition.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE