### IN THE COURT OF CRIMI NAL APPEALS OF TE NNESSEE AT NASHVILLE A ssi gne d on Br ie fs S ep te m be r 21, 200 5

ERIC K BA ILEY v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 99-B-1017 Seth Nor m an, Jud ge

No. M2005- 00181-CCA -R3-P C - F iled October 7, 2005

Th e pe tit ion e r, Eric k B a ile y , w a s f ou ndg uil ty

of seco nd degre e mur de r andfe lon y mur de r. Hi s conviction of sec ond deg ree murder w as merg ed into his conviction of felony murder, and he wa s sentenc ed to life imprisonment. Subsequently , the petitioner fi l ed a pe tition for post-conviction relief , alleg ing that his trial counsel wer e inef fec tive. The post-c onviction court denie d the petition, and the pe titioner appea ls. Upon revie w of the record and the parties’ brief s, we a ffirm the judg ment of the post-c onviction court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES a ndJ.C. M C L IN , J J ., joined.

R i c h ar d D

. D u m a s , J r

. , N a s h v i l l e , T e n n e s s e e , f o r t h e a p p e l l a n t , E r i c k

B a i l e y. Paul G. Summers, Attorney Gene ral a nd Reporter; and B enjamin A. B all, Assistant Attorney Gene ral; Victor S. Johnson, I I I , District Attorney Gene ral; and D an Ha mm, Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

On direc t a

ppeal, this c ourt summarized the fac ts underlying the appellant’ s convictions as fo llo ws :
[T]he vic tim le ft his ho me on th e e ve nin g of De c e mbe r 2 7, 19 98 to rent v id e o mo v ie s a n d to b u y f o o d f o r a n e v e n in g me a l f

o r h imself, his two children, his g irlfriend, a nd other familymembers. The victim was driving his girlf riend’s g old-colore d C amaro that was

acc essorized with a set of c hrome wire wh ee l s valued at approximately

$4,000. After

renting the vi deos and buy ing the food,-2- he stopped at an Aztec convenie nce store on Dicker son Road and at 7:4 8 p.m. prepa id for ten dollar s’ worth of g as with ten one- dollar bills. He left the store throug h the rea r door in the direc tion of the g as pumps that were located on the back side of the store

.
At or about this time, the [petit ioner] was riding on Dicker son Roa d w ith his tw in b ro the r D e rric k B a ile y a ndtw o c ou sin s, Al vin Ha ll a ndJavo n G arriso n, in D e rric k B a ile y ’s Ca dil la c . A c c or din g to Mr. Hall’s testimony , Der rick B ailey

was driving and the [petitioner] was riding in the front passe ng er seat. Due to the volume of the

r a d i o , H a l l c o u l d n o th e ar t h e c o n v e r s a t i o n b e t w e e n t h e t w o B a i l e ys in the front seat. Af

ter they passed the A ztec, Der

rick B ailey

turned the Cadillac a

round and dr ove bac k toward the Aztec. He pulled the

car into the T ac o Be l l parking lot adjace nt to the Aztec and par ked behind the Tac o Be ll. The [petit ioner] g ot out of the car and we nt thr ou g h th e sh ru bb e ry

int o th e re ar p ortio n o f the Azt e c lot

.
Der rick Ba iley then drove the Cadillac bac k to the street a nd pulled up to the front of the Az tec store. Hall got out and we nt inside the store to buy

a drink. Hall and the s tore clerk both testified that the [petit ioner] was in the store wh en Ha l l came in. The [petit ioner] asked H all if he ha d change for $20 a nd, afte r re ceiving a neg ative

res p o n s e, ex ited the store throug h the re ar door . Acc ording to the cler k, the [petiti oner] exit ed the store som e ti me after the victim had exit ed throug h the same door

. The clerk did not specify the amount of tim e that e lap sed betw e e n th e vic tim ’s e xit a ndthe [pe tit ion e r’ s]

e xit th ro ug h th e sa me do or. S he te sti fi e d th a t th e ne xt g a s sa le

occur red “ [a] t the most [ ] 20 m inutes” af ter the vic tim’s purchase

. Mary Ann Fe nter, a n Aztec customer, te stified that when she drove to the r ear

of the Aztec only

one car wa s p rese nt, a “champag ne-c olored” car parke d besi d e a gas pump. Nea rby wer e t wo men, one who w as ly ing on the g round and the other, a black man, w h o w a s s tan d in g o v e r a n d lo o k in g d o w n a t th e p r o ne man. The man w ho stood was holding onto the ja cket of t h e p ro ne man, who di d not move. When the man who wa s standing sa w Ms. Fe nter looking at him, he turned loose of the other man’ s jacke t, got into the champa g ne-c olored car , and drove away in a manner that she “wouldn’t c all speeding , but . . . wouldn’t call it slow.”

Alvin Hall had exited the Aztec s tore through the f ront door

an d h ad re

joined Gar

rison and De rrick B ailey

in Ba iley ’s Cadillac. Ba iley then drove the Cadillac a round to the re ar of the Aztec whe re Hall saw the Camaro with its hea dlights off , moving a way

from the-3- g as pump. The Cadillac followed the Cama ro onto and down Di c ke rs on Roa d. B othve hic les tur ne d o nto B e lls hir e Roa d. Ha ll asked to be let out, and De rr i ck Bailey stopped the Cadillac a nd let Ha ll a ndGa

rriso n o ut.

Meanw hile, Ms. Fente r had alerted the store cle rk, who c alled the police. Althoug h neither Ms. Fenter nor the c lerk ha d hear d a g unshot, the victim had been shot by a .9 mm weapon that wa s fired wi thi n s ix inc he s o f the vic tim ’s c he st. Th e bu llet s truc k th e he art , liver, aorta, and spine. The victim died while on a hospital operating table.

L ater

that evenin g , a motorist discovere d the Camaro on J ackson Road about two miles f rom Dicker son Road and five miles fr om the Azt e c . Jac ks on Road is conne c te d to Di c ke rs on Roa d v ia Brick Church Road a nd Be llshire. T he whe els and tires, r adio, and speake rs had b ee n removed from the Camar o, and someone had ineffe ctually

attempted to set the c ar a fire.

Th e p o l i c e w e r e a l e r t e d t o t h e [p e t i t i o n e r ’ s ] i n v o l v e m e n t in the crime by

the store c lerk’s ide ntification of him and his appe ara nce on the store’ s surveillance videotape. After the police a pprehe nded th e [ p etitioner], they

discovere d $950 on his person, including 166 one-dollar bills. The [ petitioner] admitted being at t he Aztec during the eve ning of

Dec ember

27 and said that he had “he ard a shot.”
The police ob t ai n ed Der

rick B ailey ’s Cadillac. The y found evidenc e that someo n e had plac ed tires in the ba ckseat. They photogr aphed a

portion of the ba ck of the leather front seat, where an impression of raised lettering from a tire had bee n left. This lettering was identified as belong ing to a specific make and model of tire that had bee n sold to the victim and m o u n t ed o n the Camaro in the summer of 1998. Also, af ter re cover

ing the Camaro, the police dis c o v e r e d a

p r o p a n e b o t t l e i n i t s tru n k t h a tb o r e t h e [p e t i t ion e r’ s] fi ng e rp ri nt.

State v

. E r ic k

D ar n e ll B a il e y , N o

. M 2 0 0 1

- 0 1 9 7 4

- CC A

- M R3

- CD , 2 0 0 2 WL 1 3 3 6 6 5 7 , a t * * 1 -2 (Tenn. Crim. App. at Nashville, J une 19, 2002). O n appea l, this court modified the petitione r’s conviction of fir st deg ree preme ditated murder to a conviction of se cond deg ree murder and mer g ed his second deg ree m u rd er co n v i cti on into his felony murder c onviction. I d. at *1. The pe titioner

rec eived a

life sentenc e. Subsequently , the petit ioner filed a petiti on for post-conviction relief
, alleg ing that both of his trial counsel we re ineffe ctive. Chief among the petitioner’s complaints wer e that trial counselIn i t s o rder d enyi ng t he p o st

- co nvi ct i o n pe t i t i o n, the co urt noted t hat s i nce t he p et i t i o ner’ s t ri al
, one of t he 1

p e tit io n e r’s tria l co u n se l ha d m o v e d o u t o f state a n d the o the r h a d p a sse d a w a y.
-4- failed to obtain a n independe nt evaluation of the fing erprint e vidence
, failed to objec t to testim ony from the State’ s ex p er t t h at fing erprints found on a propa ne tank matc hed fing erprints of the petitioner, and f

ailed to bring t o t h e j u ry ’s attention a discr epanc y in the testimonyof two of the State’s witnesses.
At the post-conviction hea ring , the petitioner testified that he asked his tria l c ounsel to secur e an indepe ndent fing erprint an al y s i s o f t h e fing erprint which was found on a propane tank. The State’s expert, L arita Ma rsh, testified at tria l that the fing erprint belonge d to the petitioner. Ho we ve r, to the pe tit ion e r’ s k no wl e dg e , c ou ns e l di d no t pu rs ue a n in de pe nd e nt f ing e rp ri nt ana ly sis

. The pe titioner stated that when Marsh testified at trial, she said that she identifie d the fing erprint as the petitio ne r’ s b y

c omp ari ng “ po int s” on the fi ng e rp ri nts . T he pe tit ion e r c on te nd s th a t Ma rs h should ha ve used a visual aid to de monstrate to the jury which points matc hed the petitioner’s known fing erprint and the fing erprint which was found on the propane tank.
Finally
, the petit ioner maintained that at t rial, S tate’s witness Mary Ann Fe nter testified that she saw the petitioner standing over the body of the victim in t h e p ar k i n g l o t of the Aztec convenie nce store at appr ox imately 9:45 or 10:00 p.m. on the ni g ht of t he shoot ing. Tammy Tay lor, a cle rk in the Az tec convenienc e st ore, testified for the State that on the nig ht of the shooting she saw the victim and the petitioner in the store toge ther at 7:48 p.m. The petitioner state d that the dis c re pa nc y

in the wi tne sse s’ te sti mon y wa s n e ve r m e nti on e d b y

his c ou ns e l.

L arita Ma rsh testified at the petitioner’s post-conviction hearing. Marsh stated that she ha d been a police identification analy st since 1995. She compar ed a know n fing erprint of the petitioner’s wi th the fi ng e rp ri nt that w a s r e tr ie ve d f ro m a pr op a ne ta nk

fo un d in the vi cti m’ s Cama ro . M ars h

c on c lud e d, ba se d u po n h e r e xpe ri e nce an d tr ain ing , th a t th e fi ng e rp ri nts be lon g e d to the sa me individual. She stated that at trial she informed the jury of the matching fing erprints. Howeve r, she did not use visual aids to show how she conc luded that the fing erprints from the propane tank

ma tc he d the pe tit ion e r’ s fi ng e rp ri nts

. Ad dit ion a lly
, Ma rs h state d that sh e ha d ne ve r be e n a sk e d to pr e p ar e a v is u a l aidr e g ar d in g th e matc h in g o f f in g e rp r in ts in a n y

tria l i n w h ic h s h e h a d te s ti f ie d. Howeve r, she a sserted that, if reque s t ed
, s h e could have prepa red a photogr aph to show the “matching points.”

Ne i t h er o f t h e pe t i t i o n er ’s tri al co u n s el we re ca l l ed t o t es t i fy at t h e p o s t -c o n v i ct i o n h ea ri n g. 1

After the conc lusion of the post-conviction hea ring , the court issued an orde r denying the petition. I n the order, t he court stated that the petitioner f ailed to meet his burde n of establishing by

c l e ar a n d c o n v i n c i n g e v i d e n c e t h a th i s tr i a l c o u n s e l w e r e i n e f f e c t i v e

. T h e p e t i t i o n e r

ap p e a l s t h is ruling

.
II. Ana lys is-5-

To be succ essful in his claim for post-conviction relief , the petitioner must prove a ll factua l alleg ations contained in his post-conviction petition by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30- 110(f) (2003). “‘Clea r and convincing evidenc e means evidenc e in which there is no serious or substantial d o u b t about the cor rec tness of the c onclusions drawn f rom the

e vid e nc e .’ ” Sta te v. Ho lde r, 15 S.W. 3d 90 5, 91 1 (T e nn

. Cr im. Ap p. 19 99 ) (q uo tin g Ho dg e s v. S.C. To of & Co. , 833 S.W. 2d 89 6, 90 1 n.2 (T e nn . 199 2) ). I ssu e s re g ard ing the c re dib ili ty of wi tne sse s, the weight and value to be a ccor ded their te stimony , and the f actua l questions raised by the evidenc e ad d u ce d at t rial ar e to be r esolved by the post-conviction court as the trier of fa ct. See He nley

v. S t at e, 9 6 0 S

. W

. 2 d 5 7 2 , 5 7 9 (T en n

. 1 9 9 7 ). T h er ef o re , we af fo rd t h e p o s t -c o n v i ct i o n co u rt ’s fi n d i n gs of fa ct the we ight of

a jury verdic t, with such findings being conclusive on a ppeal a bsent a showing that the evidenc e in the re cord pr eponder ates a g ainst those finding s. I d. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta nc e of

c ou ns e l is a mixe d qu e sti on of la w a ndfa c t. S e e Sta te v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a pre sumption t hat those finding s are corr ect. See Fields v. State, 40 S.W.3d 450, 45 8 ( Te nn . 2 00 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s of l a w p ur e ly de novo. I d.

“To e stablish ineffec tive assistance of counse l, the petitioner bea rs the burde n of proving both that counsel’s pe rformance was deficient and that the def iciency prejudice d the def

ense.” Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996) (ci t i n g Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1984)) . I n evaluating whether the petitioner has met this burden, this court must determine whe ther c ounsel’s per formanc e wa s within the rang e of c o m p etence re quired of attorney s in criminal case s. See B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) . Moreove r,

[b] eca use a pe titioner must establish both prongs of the t est, a failure to p ro ve e ith e r d e fi c ie nc y or pr e jud ic e pr ov ide s a

su ff ic ie nt b a sis to deny relief on the ineff

ective a ssistance c laim. I ndeed, a court ne ed

no t a dd re ss the c omp on e nts in any pa rt ic ula r o rd e r or even ad dr e ss both if th e [ p eti tioner] makes an insuffic ient showing of one

c omp on e nt.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

On app e a l, the pe tit ion e r c omp la ins that hi s tria l c ou ns e l w e re i ne ff e c tiv e by “ [f]a ili ng to procur e a private fing erprint ex pert to conduc t an independe nt evaluation of the fing erprint evidenc e,” “[f

]a il in g to o b

je c t t o te s ti mo n y

a t t r ia l th a t l a te n t p r in ts li f

te d f r o m a p r o p a n e tank matched inke d prints of the Petitioner when a char t or o t h er i l l u s t ration to show the ‘matching points’ to the jurywas not provided,” and “[f]ailing to bring the jury ’s attention to a blatant discrepancy

in the testimonyof two of the State’ s witnesses.”

First, we will address th ep e ti ti o n e r ’s complaint that trial counse l failed to sec ure inde pendent fing erprint analy sis. I n deny ing the petition for p o s t -c o n viction relief, the post-conviction court
no te d th a t-6- the evidenc e ag ainst the petitioner and his br other was quite extensive and damning , as it clea

rly illust rate d that the petit ioner was the trig g er man in the incident. Also, one witness called by the state was a man who worke d in a t ire shop wher e the victim had been t he onlyperson in the are a to spe cially

order a ce rtain ty

pe of tire , the print of which was found on the back se at of the ve h icle drive n by the petitioner’s brother. T here is no p ro o f t o s h ow that the employ ment of a fing erprint ex pert by

the petitioner would ha ve produc ed any d if f e r ent result in the outcome of

this matter. I n fac t, such ana ly sis may have only been similar to that which w as s u bmitted by the prosec ution. Ample evidenc e of othe r nature exis ted t o lead the jury to the conclusion that the petitioner was involved in the c ommissi on of the crime. The petitioner has not prove n the exis tence of any prejudice with r e s p e c t t o th is c o n te n ti o n a n d th e is s u e is th e r e f o r e w ithout merit.

Fr om our revie w of the recor d, we c an find no e vidence to preponde rate ag ainst the finding s of the post-conviction court. At the post-co n v i ction hearing, the petitioner summarily complained that counsel failed to pr ocure an independe nt f inge rprint ana ly sis. The petitioner pre sented no proof that he wa s prejudice d by counsel’s failure to secur e independent testing ; specifica lly , he did not produce any expert testimonyat the post-convic tion hearing to show that the State’s analy sis was flawe d. See Henry Eug ene Hodg es v. State, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865, at *17 (Te nn. Crim. App. at Nashville, Oct. 20, 2000); Sy lvester Smith v. St ate, No. 02C01-9801- CR-00018, 1998 WL 899362, at *14 (Te nn. Crim. App. at J ackson, D ec. 28, 1998) . There fore
, we conclude that he did not meet his burden of de monstrating c ounsel’s ineff ectivene ss in this reg ard.
Additionally , we note that the petit ioner did not prese nt any proof that he wa s prejudice d by

c ou ns e l’ s f

a ilu re t o s e e k s ome ty

pe of vis ua l aid t o e xpla in the te sti mon y of Ma rs h. Th e po stconviction court found:

Marsh, the s t at e’s e x pert witness, testified at trial that the prints on the propa ne tank matc hed thos e of the petit ioner. S he compa red the prints of the petitioner to those found on the tank and dr afte d a re port of he r f ind ing s, wh ic h w a s ent e re d into e vid e nc e a s a n e xhibi t. M s. M ar s h te s ti f

ie d th a t s h e c o u ld h a v e ma d e a p h o to g r ap h to show the matching points, but t hat it had neve r bee n done in past trials. She rel ie d o n th e r e p o r t s h e h a d ma d e a n d w a s a d a man t th a t th e r ig ht thumb print wa s the same as the pe titioner’s. The r epre sentation by counsel in this aspec t was not defic ient, as an y objection made by

c ou ns e l wou ld n ot h a ve be e n s us ta ine d o n a c c ou nt that Ms . M ars h

wa s te sti fying a s to her op ini on of the a na ly sis of

the fi ng e rp ri nts under Rule 702 of

the Tenne ssee Rules of Evide nce.

We find no evidenc e to pre ponderate ag ainst the post-conviction court’s finding s.-7-

F ina lly , th e pe tit ion e r c omp la ins that tria l c ou ns e l we re ine ff e c tiv e in faili ng to po int

ou t to the jury that there was a discrepancy betwee n the times Tay lor and F enter testified that they

saw the victim and the petitioner at the convenie nce store . The post-c onviction court stated:

The pe titioner specific ally not es t hat witness Mary Ann Fe nter testified that she saw the vic tim between 9:45 and 10:00 pm. ly ing on the g ro un d n e ar the g a s p ump s w ith so me one st a nd ing ov e r h im, while Tammy

Tay lor tes t ified that she sa w the victim and the petitioner in the store a

round 7:48 p.m. Ho weve r, other e vidence submitt ed at tria l would tend to support the t estimony of Ms. Tay lor.
Although the re doe s seem to exist some discre pancy betwee n the times that the se witnesses alleg e the events occur red, the massive amount of evide nce a g ainst th e p et i t i oner w as so g reat that this one detail would not have se rved to exculpate the petitioner in the tria l of this matter. Had counsel manag ed to point out this inconsistency , the outcome of the trial would not have been differe nt. The pe titioner’s fing erprints we re on sever al items, the victim’s stolen tire prints were on the bac k seat o f t he petitioner’ s vehicle a nd the state introduce d numerous witnesses w hose testimonies placed t h e petitioner at the

scene of the c rime.

Acc ording ly , the post-conviction court found that the petitioner ha d n o t p ro v en that he was prejudice d by

counsel’s f

ailure to bring the inconsistency reg arding the witnesses’ te stimonyto the attention of the jury . We can f ind no evi d en ce t o p re ponderate ag ainst this finding. Thus, we conclude that the petitioner is not entitled to relief on this issue.

III. Conclusi on Finding no err or, we aff

irm the judg ment of the post-c onviction court.

___________________________________ NORMA McGEEOGLE, J UDGE