IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 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-conviction relief.

Asserting claims of ineffective assistance of counsel, he appeals. Finding no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,

and JOSEPH M. TIPTON, J., joined.

Mike A. Little, Chattanooga, Tennessee, for the Appellant, Charles Frank Griffin.

Paul G. Summers, Attorney General & Reporter; Glen C. Watson, Assistant Attorney General;

William H. Cox, III, District Attorney General; and Dean C. Ferraro, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

The petitioner, Charles Griffin, appeals the Hamilton County Criminal Court’s

dismissal of his 1998 petition for post-conviction relief. He was convicted in that court in 1995 of

two counts of aggravated robbery, after a 1994 mistrial of the charges. He received consecutive 30-

year sentences. This court affirmed the convictions. See State v. Charles Frank Griffin, 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 effective assistance of counsel. The post-conviction court appointed counsel for the petitioner

and held an evidentiary hearing, after which it dismissed the petition. This appeal followed. 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 law, we affirm the judgment of the postconviction court.
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A. The Petitioner’s Trial.

The evidence at the petitioner’s trial showed that, on the morning of April 28, 1994,

a man entered a Chattanooga labor union office where two female employees, the victims, were

working. Both victims observed the petitioner from close range when he asked for and received busfare change from the victims. The petitioner then pulled a pistol, took the victims’ purses, and left

the building. Later, one victim described the robber as being a black man in his forties, six-feet,

four-inches tall, and weighing 160 pounds. The other victim described him as being six-feet, twoor three-inches tall, weighing 170 pounds, and having high 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. Both women selected the petitioner’s photograph. Both of them identified him as the

robber at the preliminary hearing and again at trial.

On the morning of the robbery, a man working at a house across the street from the

union office saw a black man drive a gray or silver car slowly through 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 showed the car leaving the crime

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 aggravated robbery, and the trial

court imposed consecutive 30-year sentences.

B. The Post-conviction Hearing.

At his post-conviction hearing, the petitioner testified that, although his preliminary

hearing lawyer challenged – albeit unsuccessfully – the photographic identification procedures, 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 trial counsel that he was at work at a

funeral home when the robbery occurred, that he had a flat tire at the funeral home that morning, and

that a minister at the funeral home and Detective Moody with the police department saw him

changing his tire. He complained that counsel did not send her investigator to interview the minister
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and Moody until several months after the robbery, a delay which impaired the proposed alibi

witnesses’ ability to recall the flat-tire incident or to articulate it in terms of April 28, 1994, the day

of the robbery. Moody did not remember the flat-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 detective 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 the house. His lawyer failed to use this

inconsistency to impeach Kennedy at trial. The petitioner further testified that 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. 

Finally, the petitioner complained that his trial counsel failed to exploit the state’s

misconduct in presenting as evidence a shirt that it maintained the petitioner wore during the

robbery, despite the state having presented a different shirt for this purpose during the preliminary

hearing. 

Trial counsel, an assistant public defender, testified that her office’s investigator

interviewed Detective Moody, the minister at the funeral 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

did not talk to the minister and Moody until shortly before the first trial, when the state’s motion to

compel disclosure of an alibi defense prompted the interviews. She testified, “[W]e just had never

talked to anybody until right on the eve of us having 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 first 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’ description of the car did not

match the car in the video. Counsel testified that “that juror kind of just told us some of the things

that we’d been arguing ... really swayed them.” Counsel opted for the same strategy at retrial. She

acknowledged that she considered asking for funds to hire an expert on eyewitness testimony but

never “got around to doing it because of [her] case load.” Counsel stated that, at the retrial, the

victims were better prepared and presented stronger testimony. 

Trial counsel acknowledged that she filed no motion to suppress the eyewitness

identifications, even though any lawyer should have filed the motion. When asked why she failed
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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 from day to day trying to handle my clients. . . . I just never

got around to filing it in Charles’ case.” She stated that she opted to raise the identification question

with the jury. She declined to use the alibi witnesses because she believed their uncertainty would

damage the petitioner’s case. 

She testified that she had read the preliminary hearing testimony, and in the first trial,

she cross-examinedDetectiveKennedy about his preliminary-hearing admission that he had searched

the petitioner’s sister’s house; however, at the retrial, she was precluded by the court from crossexamining Kennedy concerning the discrepancy. 

Finally, she did not know whether her investigator checked the funeral home’s work

records or interviewed the construction worker witness. She acknowledged that, after looking at

the file, “[T]here was a lot of stuff I hadn’t gotten to . . . in a timely fashion. . . . I tend to

procrastinate.”

Post-conviction counsel announced to the post-conviction court that funeral home

employment records for April 1994 could not now be retrieved. 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-conviction proceeding, the burden is on the petitioner to establish 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 verdict and are conclusive

unless the evidence preponderates against them. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. 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 op. 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

competence demanded of attorneys in criminal 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 defense."

Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must be a

reasonable probability that, but for counsel's errors, the result of the proceeding would have been
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different. Id. at 694, 104 S. Ct. at 2068; 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 performancemust be "highlydeferential," 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 distorting effects of hindsight" and evaluating the "conduct from counsel's

perspective at the time." Id., 104 S. Ct. at 2065. The court promulgated a "strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance." Id., 104 S. Ct.

at 2065. The court added:

[S]trategic choices made after thorough

investigation of law and facts relevant to

plausible options are virtually unchallengeable;

and strategic choices made after less than

complete investigation are reasonableprecisely

to the extent that reasonable professional

judgments support the limitations on

investigation. In other words, counsel has a

duty to make reasonable investigations or to

make a reasonable decision that makes

particular investigation unnecessary. 

In any ineffectiveness case, a particular

decision not to investigate must be directly

assessed for 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-conviction petitioner 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, 104 S. Ct. at 2068. In assessing the claim of prejudice, the "court should presume, absent

challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted

according to law." Id., 104 S. Ct. at 2068. The reviewing court must consider 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.
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We will now address the petitioner’s specific allegations of 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

identification evidence was the result of a heavy caseload and not a matter of strategy; however, it

found that “even had counsel filed a motion to suppress the identification 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 unsuccessful.

Thus, the court determined that, even if counsel deficiently 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. Due process

is violated when an identification procedure is so suggestive that it occasions a “very substantial

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 identifications 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 determining the reliability of the identification and its admissibility into

evidence:

1. The opportunity of the witness to view the criminal at the 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 present case, the two victims observed the robber at close range and in good

light before the stress of a crime-in-progress developed. Then, both victims observed the robber

during his display of the weapon and watched him exit the building. One of the victims had

“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 descriptions of the robber and his clothing. 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 post-conviction 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 certain in their
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identifications of the petitioner, and they also identified him at the preliminary hearing and at both

trials. The photographic identification procedure occurred within a few days of the robbery. 

Based upon the foregoing characteristics of the identification procedure, the petitioner

failed to make a clear and convincing showing that a motion to suppress would have had merit. We

conclude, upon de novo review of the issue, that the petitioner failed to establish the prejudice prong

of this claim of ineffective assistance of counsel.

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

The petitioner complains that his counsel failed to investigate his funeral home

employment records, failed to interview the construction worker who saw the getaway car, failed to

timely interview the prospective alibi witnesses, and 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 month delay in

interviewing the prospective alibi witnesses, but it found that “the investigation that counsel did

undertake in this respect contradicted the petitioner’s account of events.” Moreover, it found a lack

of “clear and convincing evidence that any delay in the investigation was prejudicial.” Also, the

post-conviction court found that the petitioner failed to show that his counsel deficiently performed

when she failed to investigate his employment records and that, even if the performance was deficient,

there was no showing of prejudice. We note that the petitioner was unable to recover the funeral

home employment records for use at the post-conviction hearing. The court did not specifically

mention the failure to interview the construction worker or to develop proof concerning the

petitioner’s trip to his girlfriend’s dentist’s office; however, no proof was offered at the postconviction hearing which showed what fruits would have been borne by these additional inquiries.

Trial counsel’s stark admission of her procrastination and her failure to pursue certain

tasks in preparing the petitioner’s case for trial belies any notion that she sufficiently performed 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 failed to establish deficient performance in counsel’s failure to locate

and analyze the funeral home’s employment records. We need not address the deficiency of her

performance, however, because the petitioner simply failed to demonstrate “a reasonable probability

that, but for counsel’s [alleged shortcomings in trial preparation], the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In other words, he failed to

prove by clear and convincing evidence that he was prejudiced. In none of the alleged instances of

failure to investigate did he establish what 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 alibi witnesses’ information. In 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 later appearing on the petitioner’s car, a timely memorialization of the minister’s
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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 speculate that the minister or any other

witness would have offered credible, exculpatory evidence had he been interviewed more promptly.

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