IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 2, 2010

TREVOR FORD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 03-02258 John P. Colton, Jr., Judge

No. W2009-02434-CCA-R3-PC - Filed October 8, 2010

The Petitioner, Trevor Ford, appeals as of right from the Shelby County Criminal Court’s

denial of his petition for post-conviction relief. In 2007, the Petitioner was convicted by a

jury of second degree murder and sentenced to twenty-two years. On appeal, he argues that

the denial of his petition was error because he did not receive the effective assistance of

counsel at trial. Specifically, he contends that counsel failed to introduce evidence of

specific violent acts by the victim, failed to secure testimony establishing the victim’s

reputation for violence, and failed to pursue funding for a forensic pathologist. Additionally,

he argues that the refusal to grant funds for an expert at the post-conviction level denies him

fundamental due process and amounts to cruel and unusual punishment. Following our

review of the record and the parties’ briefs, we conclude that the Petitioner has not shown

that he is entitled to relief. The judgment of the post-conviction court is affirmed.

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

DAVID H. WELLES,J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

Lance Chism, Memphis, Tennessee, for the appellant, Trevor Ford.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; William L. Gibbons, District Attorney General; and David Zak, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background
The Petitioner was convicted by a jury of second degree murder, and he was

subsequently sentenced to twenty-two years at 100% as a violent offender. On direct appeal,

this Court affirmed the sufficiency of the convicting evidence supporting the Petitioner’s

conviction. State v. Trevor Ford, No. W2007-00291-CCA-R3-CD, 2008 WL 2219395, at

*2-3 (Tenn. Crim. App., Jackson, May 28, 2008).

The underlying facts, as established by the evidence presented at the Petitioner’s trial,

were set forth in this Court’s opinion adjudicating the Petitioner’s direct appeal:

On January 10, 2003, Defendant and a group of friends, including the

victim, met at a bar in Memphis called Rally Point. The group played pool and

drank beer. During the evening, the victim and Defendant got into a “tussle”

and punches were thrown. The management asked them to leave the bar.

While in the parking lot, the victim and Defendant continued to “have words”

with each other but were not physically assaulting each other.

Lisa Cash testified that she saw the altercation inside the bar and what

happened in the parking lot. Also, in the parking lot, Ms. Cash heard the

victim threaten to kill Defendant. After the victim and Defendant stopped

yelling at each other, Defendant got into an SUV with Ms. Cash, her

boyfriend, Harry Jarrett, and another woman. After a few moments, Defendant

jumped out of the SUV and got into the car with the victim. Ms. Cash testified

that about thirty to forty minutes after the victim and Defendant sped off, she

received a phone call from Defendant. Defendant asked her to come and pick

him up. She complied and picked him up where Defendant said the victim had

dropped him off. Defendant apologized to Ms. Cash for his behavior and

“teared up.”

Mr. Jarrett testified that he tried to follow the victim and Defendant

because he was afraid of what the victim might do. However, because the

victim was driving at a high rate of speed, Mr. Jarrett was unable to keep up

and lost the car. Mr. Jarrett testified that Defendant called later and that his

girlfriend went to pick him up and brought him back to Mr. Jarrett’s mother’s

home. Defendant apologized for almost hitting Mr. Jarrett when he tried to

break up the fight at the bar and then Defendant started crying.

Tammie Howard testified that she was in her apartment on University

Street when she noticed a car pull into the parking lot around two o’clock on

the morning of January 11, 2003. Ms. Howard testified that she noticed the car

because she thought it was her aunt and expected her to knock on the door.

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When no one knocked on the door and she heard a car horn beep, Ms. Howard

got out of bed and went to the window. She stated that she saw the front of a

small, gray car and a person sitting inside the car. Ms. Howard then called her

fiancé to tell him to hurry home. Ms. Howard testified that she heard the car

horn blow again, so she went back to the window. She could now see the

person inside the car because the interior light was on. Ms. Howard then saw

the man get out of the car and wipe the exterior and then open the passenger

door. At this point, she stated she saw an arm “flop” out of the car. Ms.

Howard was frightened and again called her fiancé to tell him to come home.

Ms. Howard testified that the person she saw slumped over in the car was

definitely deceased. Ms. Howard identified Defendant from a photo line-up

and in court as the man she observed get out of the car and wipe down the

car’s exterior.

Eddie Grandberry, Ms. Howard’s fiancé, testified that he spoke to

Defendant in the parking lot when he (Mr. Grandberry) arrived home. Mr.

Grandberry told Defendant he could not park the car in the lot and that he

would have to move it. Mr. Grandberry testified that the Defendant complied

and drove away. Mr. Grandberry also identified Defendant in a photo array

and in court.

Officer Ken Fox responded to a 911 call about a dead person in a car.

The car was located outside Ms. Howard’s bedroom window and she stated

from her bedroom she could “see straight through the car.” He found the

victim’s body slumped over in the front seat of a gray Ford Focus. Officer Fox

found cash, marijuana, and a CD player in the vehicle.

Dr. O.C. Smith performed the autopsy and testified that the victim was

shot twice. One of the shots was fatal. Dr. Smith testified that the victim

tested positive for cocaine and his blood alcohol content was .14.

On January 12, 2003, Sergeants Eric Hutchinson and Timothy Sims

took Defendant’s statement. Sergeant Sims passed away before the trial so

only Sergeant Hutchinson testified. Sergeant Hutchinson testified that

Defendant was cooperative and expressed remorse. Sergeant Hutchinson read

Defendant’s statement into evidence. In his statement, Defendant told the

officers that he was responsible for the victim’s death and that he was trying

to protect himself. Defendant also said that he knew the victim kept a gun

under his seat and he believed that the victim was reaching for it. Defendant

then stated that he and the victim began “tussling and arguing” in the car and

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that the victim grabbed for Defendant’s gun. During this altercation the gun

went off twice. Defendant said he jumped out and ran away, but then returned

to the car and found the victim alive. Defendant stated that he panicked and

drove the car into another parking lot and called Ms. Cash for a ride.

Defendant told the officers he was scared to call 911. Defendant ended his

statement by saying he was sorry and that he was “just trying to protect

myself.”

Defendant did not testify at trial, nor did he offer any other proof.

Id. at *1-2.

The Petitioner filed a petition for post-conviction relief on August 20, 2008. Counsel

was appointed for the Petitioner, and an amended petition was filed. The Petitioner asserted

that he did not receive the effective assistance of counsel at trial. As specific grounds for

relief, the Petitioner made the following allegations: (1) trial counsel was ineffective for

failing to argue in a motion to suppress hearing that the Petitioner was arrested without

probable cause; (2) trial counsel was ineffective for failing to seek suppression of the

identification testimony of Tammie Howard and Eddie Grandberry; (3) trial counsel was

ineffective for failing to subpoena Tammie Howard’s medical records; (4) trial counsel was

ineffective for failing to retain a forensic pathologist; (5) trial counsel was ineffective for

failing to present evidence of the victim’s past acts of violence to corroborate the defense

theory of self-defense; (6) trial counsel was ineffective for failing to investigate the case and

for failing to call witnesses beneficial to the defense; (7) trial counsel was ineffective for

failing to adequately prepare for trial; (8) trial counsel was ineffective for failing to

adequately research legal issues; and (9) trial counsel was ineffective for failing to

communicate with the Petitioner. In a second amended petition, the Petitioner elaborated on

his previous allegations and, additionally, alleged that trial counsel wasineffective for failing

to argue in a motion to suppress hearing that the Petitioner was subjected to a custodial

interrogation prior to being advised of his Miranda rights. At the outset of his post1

conviction hearing, the Petitioner added two additional ineffective assistance claims—that

 See Miranda v. Arizona, 384 U.S. 436 (1966). 1

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trial counsel failed to introduce evidence about the victim’s violent reputation and that trial

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counsel failed to adequately cross-examine Tammie Howard.

A hearing began on July 30, 2009, and continued on August 14, 2009. Harry Jarrett

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testified that he was good friends with the Petitioner. Mr. Jarrett had met the victim, who he

knew as “Rico,” several times through mutual friends. When asked about the victim’s

reputation, Mr. Jarrett stated, “Thug, gangster, not well thought of at all.” Mr. Jarrett said

that he spoke with trial counsel before the Petitioner’s trial. A picture of the victim was

shown to Mr. Jarrett while on the stand, but he could not identify him.

On cross-examination, Mr. Jarrett confirmed that he testified at the Petitioner’s trial,

testifying in front of the jury that he feared for the Petitioner’s life when the Petitioner rode

away with the victim. Mr. Jarrett confirmed that he did not see any weapons on the evening

of the fight at the bar. After the shooting, Mr. Jarrett met with the Petitioner who was crying

and who kept apologizing.

Mr. Jarrett’s wife, Lisa Jarrett, testified next. She also said that she knew the victim

through mutual friends and was familiar with his reputation. Mrs. Jarrett characterized the

victim as “a street thug, a hood rat, somebody that I should not be around.” Mrs. Jarrett

testified that she met with trial counsel prior to the Petitioner’s trial and that she informed

trial counsel of the victim’s bad reputation.

On cross-examination, Mrs. Jarrett confirmed that she also testified at the Petitioner’s

trial. According to Mrs. Jarrett, she stated in front of the jury the she heard the victim

threaten to kill the Petitioner on the evening in question.

The State argues that this issue is waived because the Petitioner did not include it in his original 2

or amended petitions. However, at the outset of the hearing, counsel moved to amend the petition to include

these two new grounds. The State did not object until later in the hearing when the Petitioner began to offer

testimony about the victim’s reputation. The post-conviction court permitted the petition to be amended,

noting that record was already developed on the subject, thus enabling the court to “get a good picture of it.” 

Although the post-conviction court permitted the petition to be amended, the court did not directly address

the issue of the victim’s reputation for violence in its order denying relief. Nonetheless, the post-conviction

court did address the victim’s prior acts of violence as possible evidence to corroborate the defense theory

of self-defense in its order. Given that prior acts of violence and a reputation for violence are both types of

character evidence, and because the record is sufficient to address the issue, we decline to consider the issue

waived.

We will confine our narrative of the post-conviction hearing facts to evidence relevant to the issues

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presented on appeal. Much of the testimony at the hearing concerned the Petitioner’s other allegations of

ineffective assistance. 

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Trial counsel testified that he worked for the Shelby County Public Defender’s Office

and had been a practicing attorney since 1982. He reviewed all of the discovery in the

Petitioner’s case and provided the Petitioner with a copy. He met with the Petitioner

frequently, at least ten visits in the jail and “enumerable conferences off the courtroom in the

conference rooms.” He also stated that he communicated with the Petitioner by mail at least

ten to twelve times and that he provided the Petitioner with any additional information he

received from the State.

Trial counsel said that he did not seek funds for an independent forensic pathologist

because he saw no reason to as “[t]he cause of death was absolutely clear.” Trial counsel met

with the medical examiner and discussed the victim’s injuries. He did not believe he could

show the requirement of a “particularized need” in order to receive State-funded expert

services; he saw no reason to believe that the medical examiner’s conclusions were incorrect.

When asked if he made any effort to investigate the victim’s past, trial counsel said

that he obtained the victim’s arrest history, which showed several convictions for driving on

a revoked license and public intoxication. Trial counsel recalled a Class E felony on the

victim’s record—a prohibited weapon offense. Trial counsel was shown an affidavit of

complaint involving an assault by the victim and was informed that the victim pleaded guilty

to the charge; trial counsel was not aware of the conviction.

When asked if he talked to witnesses about the victim’s past, he stated that he

interviewed the witnesses about what information they had about the facts of the case. He

did not remember Mrs. Jarrett ever calling the victim a “thug” and such was not reflected in

his notes. According to trial counsel, both Jarretts testified at the Petitioner’s trial that they

heard the victim threaten the Petitioner and that they feared for the Petitioner’s life on the

evening in question. Mrs. Jarrett actually “blurted out” that she heard the victim say to the

Petitioner, “I’m going to kill you.” Trial counsel made a strategic decision to rely solely on

the victim’s bad acts on the evening in question, rather than rehash his past behavior in front

of the jury. Trial counsel said that the Petitioner was actually good friends with the victim;

on the evening in question, the two were celebrating their respective birthdays together. Trial

counsel opined that any evidence about the victim’s past acts of violence would not have

changed the outcome of the Petitioner’s trial, noting that the victim suffered two gunshot

wounds, one in the back, which belied the allegation of a “tussle.” Trial counsel did not

remember the Petitioner ever requesting that he interview additional individuals.

On cross examination, trial counsel confirmed that the defense theory was that the

Petitioner acted in self-defense, that identification was not an issue. Trial counsel

encouraged the Petitioner to take the stand at trial, but the Petitioner chose not to testify.

Although trial counsel knew of the victim’s history, the Petitioner appeared to have no

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knowledge of the victim’s reputation or past violent behavior, and trial counsel was not

“going to create a defense by suggesting it to him.”

The Petitioner testified that he only met with trial counsel a total of about eight to ten

times during the four years he was incarcerated prior to his trial. He told trial counsel about

the victim—that they grew up together in the same area of town, that he knew of “a little few

incidents in the neighborhood” involving the victim, and that the victim was charged in a

drug case and in a gun case. He asked trial counsel to get the victim’s entire criminal record.

He also asked trial counsel to interview his brother, Demetrius Jones, but trial counsel did

not.

The Petitioner requested trial counsel to get an independent forensic pathologist “to

go against” the medical examiner. Based upon a “little ordeal” the medical examiner was

going through publicly, the Petitioner assumed that he “would have been a State witness

saying whatever the State wanting [sic] him to say.”

Demetrius Jones stated that he had known the victim for about ten years from “staying

around the neighborhood.” He witnessed the victim engage in violent behavior on a couple

of occasions. On one such occasion in 2001, the victim and another man started to “wrestle

with each other,” but the other man was stronger than the victim, and the victim became

upset. After leaving the scene of the fight, the victim returned with an assault rifle and

threatened the man who had gone inside his mother’s house. The man never came outside;

the victim laid the assault rifle down and left. Mr. Jones further testified that the victim

drank a lot and became very aggressive when he was under the influence of alcohol and

drugs. According to Mr. Jones, the victim was “not a fighter,” but his “character changed”

once he became intoxicated. Mr. Jones stated that he never met with trial counsel.

Will Huttig also testified. Mr. Huttig lived in the same neighborhood as the victim

and knew him “through other friends.” On one occasion, Mr. Huttig witnessed the victim

get into a fight. According to Mr. Huttig, the victim would answer his door armed, and the

victim kept an AK-47 on his porch. Mr. Huttig opined that the victim was a violent person.

As for the victim’s reputation, Mr. Huttig said that the victim was a drug dealer and “was a

bad drunk.” He did not speak with trial counsel at any point.

After reviewing the evidence presented, the post-conviction court denied relief by

written order. The post-conviction court found that the Petitioner did not prove his factual

assertions by clear and convincing evidence and did not establish that trial counsel was

ineffective. This appeal followed.

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Analysis

The Petitioner essentially raises two challenges in this appeal: one aimed at trial

counsel’s failure to present evidence of the victim’s prior violent acts and of the victim’s

reputation for violence and the other aimed at trial counsel’s failure to retain the services of

an independent forensic pathologist.

The Sixth Amendment to the United States Constitution and article I, section 9 of the

Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). Both the United States Supreme Court and the Tennessee Supreme Court have

recognized that the right to such representation includes the right to “reasonably effective”

assistance, that is, within the range of competence demanded of attorneys in criminal cases.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523

S.W.2d at 936.

A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is

comprised of two components: deficient performance by the defendant’s lawyer and actual

prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d

at 461. To demonstrate prejudice, a defendant must show “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. The defendant bears the burden of establishing both of these

components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6

S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient

basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6

S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

In evaluating a lawyer’s performance, the reviewing court uses an objective standard

of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing

court must be highly deferential to counsel’s choices “and should indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should

not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,

see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be

judged in light of all the facts and circumstances as of the time they were made, see

Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

A trial court’s determination of an ineffective assistance of counsel claim presents a

mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

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This Court reviews the trial court’s findings of fact with regard to the effectiveness of

counsel under a de novo standard, accompanied with a presumption that those findings are

correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s

conclusions of law—such as whether counsel’s performance was deficient or whether that

deficiency was prejudicial—are reviewed under a purely de novo standard, with no

presumption of correctness given to the trial court’s conclusions.” Id. (emphasisin original).

I. Prior Bad Acts and Reputation Testimony

The Petitioner complains that the post-conviction court erred by determining that trial

counsel was not ineffective for failing to call witnesses to establish the victim’s reputation

for violence and to detail certain prior bad acts by the Petitioner. At the post-conviction

hearing, the Petitioner presented four witnesses who testified to the victim’s violent

reputation and/or who had witnessed prior violent acts by the victim. Trial counsel testified

that he and his staff interviewed witnesses asking them about their knowledge of the case.

Trial counsel said he believed the victim’s actions on the evening of his death, in addition

to the Petitioner’s statement, were sufficient to establish the defense of self-defense. The

Petitioner and the victim were good friends; the Petitioner neither indicated to trial counsel

that he found the victim to be a violent person nor alerted trial counsel to the victim’s past

violent behavior. Trial counsel said that the Petitioner never requested that he interview

additional individuals. Moreover, we agree with the State that the testimony offered by the

Petitioner at the post-conviction hearing did not offer particularly strong evidence of the

victim’s violent nature.

The post-conviction court found that trial counsel’s decision not to put on evidence

about prior bad acts by the victim or about his violent reputation was a tactical decision not

subject to hindsight review, and that his conduct in that regard was within the standards

expected of defense counsel. In making this decision, the post-conviction court relied upon

trial counsel’s testimony that he believed the bad acts of the victim on the evening of his

death were enough to corroborate the defense theory that the Petitioner was acting in selfdefense and the fact that witnesses at trial testified that the victim threatened to kill the

Petitioner on the evening in question. The post-conviction court obviously accredited trial

counsel’s testimony over that of the Petitioner. This Court may not second-guess a

reasonably-based trial strategy, and we cannot grant relief based on a sound, but

unsuccessful, tactical decision made during the course of the proceedings.

Also, as noted in the Petitioner’s direct appeal, the fact that there were two gunshots

permitted an inference by the jury that the shooting did not occur as a result of a “tussle.”

Ford, 2008 WL 2219395, at *3. Lastly, Petitioner admitted in his statement to police that the

victim was alive after the shooting and that he did not call 911 or seek other assistance. Id.

Based upon our review, we conclude that the evidence does not preponderate against the

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post-conviction court’s finding that trial counsel’s assistance in this regard was not

ineffective. The Petitioner is not entitled to relief on this issue.

II. Forensic Expert

A. Trial

The issue presented by the Petitioner is whether trial counsel’s assistance was

ineffective for failing to request forensic expert assistance to challenge the medical

examiner’s report. Noting trial counsel’s testimony that he did not retain a forensic

pathologist due to the “clearness of the victim’s death,” the post-conviction court again found

trial counsel’s decision to be sound strategy. Trial counsel met with the medical examiner

and was satisfied with his findings. He stated that, even if he had requested an expert, he

would not have been able to demonstrate the “particularized need” necessary to secure State

funding. Moreover, the Petitioner did not present any evidence at the post-conviction hearing

to show what, if any, forensics testimony would have benefitted his defense or, if such

evidence existed, that it would have affected the outcome of the trial. Neither a trial judge

nor an appellate court can speculate as to what a potential witness might have testified.

Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We agree with the postconviction court that the Petitioner failed to demonstrate trial counsel was ineffective.

B. Post-conviction proceedings

Post-conviction counsel attempted to secure funds for a forensic pathologist at the

post-conviction stage in order to prove the Petitioner’s ineffectiveness claim. The postconviction court denied the motion. On appeal, the Petitioner contends that the postconviction court erred in denying his request for expert funds. He submits that the denial of

funding violated his right to due process and constituted cruel and unusual punishment.

The Petitioner acknowledges that his argument is contrary to the law in Tennessee.

The Tennessee Supreme Court Rules clearly prohibit the authorization of expert services in

non-capital post-conviction proceedings. Tenn. Sup. Ct. R. 13 § 5(a)(2); see also Tenn. Code

Ann. § 40-17-207; Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995). Further,

Petitioner’s argument, that despite well-settled law, a denial of expert funding denies him

fundamental due process rights, has already been addressed by a panel of this Court. In

Asata Lowe v. State, No. E2006-02028-CCA-R3-PC, 2008 WL 631169, at *20-21 (Tenn.

Crim. App., Knoxville, Mar. 10, 2008), this Court noted the prohibition for expert services

in non-capital post-conviction proceedings and determined that for the Court to analyze the

petitioner’s claim, she “was required at a minimum to make a threshold showing that such

an expert exists. This showing would demonstrate that the claim that an expert [would have

helped the defense was] more than mere speculation. We cannot conclude that the Due

Process Clause was violated based on mere conjecture.” Id. at *21. The same analysis

applies herein. Other than statements of post-conviction counsel and the assertions of the

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Petitioner, there is no proof in the record that any expert existed whose testimony would have

refuted the medical examiner’s report. Accordingly, the post-conviction court properly

denied the request for an expert. See also Wayne Lydell Holt v. State, No. M2009-00933-

CCA-R3-PC, 2010 WL 2867185, at *6 (Tenn. Crim. App., Nashville, July 22, 2010).

Conclusion

Based upon the foregoing reasoning and authorities, we conclude that the Petitioner

has not shown he is entitled to relief on grounds of ineffective assistance of counsel. The

judgment of Shelby County Criminal Court denying post-conviction relief is affirmed.

_________________________________

DAVID H. WELLES, JUDGE

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