                                                                                        04/18/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               Deember 6, 2016 Session

                 AARON MALONE v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 08-02332    James C. Beasley, Jr., Judge


                            No. W2016-00666-CCA-R3-PC



The petitioner, Aaron Malone, appeals the denial of his petition for post-conviction relief
from his conviction for first degree felony murder. He asserts that the court erred in
denying relief because he received the ineffective assistance of counsel and his due
process rights were violated by the State’s failing to preserve unedited footage from “The
First 48” television show. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT L. HOLLOWAY, JR., JJ., joined.

Lance R. Chism (on appeal) and TeShaun D. Moore (at hearing), Memphis, Tennessee,
for the appellant, Aaron Malone.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kenya N. Smith and
Karen Cook, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

       The petitioner was indicted along with a co-defendant, Calvin Nelson, for first
degree felony murder committed during an attempted robbery. The petitioner filed two
motions to suppress prior to trial, both of which were denied by the trial court, and the
case proceeded to trial. The jury convicted the petitioner as charged, and the trial court
imposed a sentence of life imprisonment as a violent offender. The petitioner appealed,
challenging the trial court’s rulings on his motion to suppress his statement, the
admission of the victim’s teeth at trial, and the State’s use of an expert witness in rebuttal.
This court affirmed the trial court’s judgment, and the Tennessee Supreme Court denied
the petitioner’s application for permission to appeal. State v. Aaron Malone, No. W2009-
02047-CCA-R3-CD, 2011 WL 1005487, at *1 (Tenn. Crim. App. Mar. 22, 2011), perm.
app. denied (Tenn. July 13, 2011).

      The underlying facts of the case were recited by this court on direct appeal as
follows:

               The parties presented the following evidence at the [petitioner’s]
       July 2009 trial. Joseph Zeller testified that he owned Tiger Truck Lines and
       that the victim began working for the truck line six to seven years before
       the trial. Mr. Zeller stated that the victim was in Memphis, Tennessee,
       between September 16 and September 17, 2007, because he was delivering
       a load of appliances to a warehouse. Mr. Zeller identified a picture of the
       victim’s truck outside of a warehouse in Memphis, and he said that he was
       familiar with the truck because he bought it from the victim’s widow after
       his death. He testified that a person standing on the ground would not be
       able to look into the truck’s window, which was six and a half to seven feet
       off the ground. Mr. Zeller identified two Comcheck cards, which had
       “Tiger Truck Lines, New Albany, Indiana” on the front. He said that he
       knew the victim used those two cards because the card numbers matched
       the bill associated with the victim’s truck and because the victim signed the
       receipts.

              Ricky Cole testified that on September 17, 2007, he was working at
       Serpro, a warehouse located at 3835 Knight Road in Memphis, Tennessee.
       He said that he saw a truck parked at the warehouse that he recognized as
       belonging to a truck driver that regularly delivered to Serpro. Someone
       informed him that the truck had a broken window, so he went to
       investigate. He testified that he knocked on the door, and when no one
       answered, he opened the door and discovered the victim’s body lying in the
       aisle of the truck. Mr. Cole said that he did not notice anything unusual
       about the truck other than the broken glass and did not notice signs of
       blood. He testified that he called 911 immediately after finding the victim.

              Memphis Police Officer Shaun Tucker testified that he responded to
       a homicide call on September 17, 2007. He said that he secured the scene
       and located witnesses. Officer Tucker maintained the scene until his
       lieutenant, the homicide bureau investigators, and the crime scene
       investigators arrived.
                                              -2-
        Hardin Edwards, a truck driver, testified that he arrived at his point
of delivery on Knight Road in Memphis at 1:20 a.m. on September 17,
2007. He said that he was sitting in his truck doing paperwork when he
saw a car “come out from where a truck was parked further down in the
warehouse area,” and he saw the same car return ten minutes later to park
beside the rear tires of the truck on the driver’s side. Mr. Edwards testified
that he noticed the car because the rear window was broken and “had
plastic wrapped around it.” He said that when he went to bed at 1:50 a.m.,
the car was still parked in the same place. Mr. Edwards identified a picture
of the car that he saw that day. When he awoke at 7:00 a.m., he saw a fire
truck and police officers responding to the scene. After someone informed
him that a truck driver had been killed, he told the police what he had seen
earlier.

       Theresa Rucker testified that in September 2007, she was working
for Federal Express at 3835 Knight Road. She said that on September 17,
2007, she had to be at work at 2:15 a.m. Ms. Rucker testified that on that
day, as she entered the parking lot, she noticed a turquoise car with the rear
window broken because the car was driving fast and almost hit her. She
said that she told police about the turquoise car later that day after seeing
the police and the fire department around the victim’s truck.

        On cross-examination, Ms. Rucker testified that she saw a black
male driving the car and a black person in the passenger seat, but she could
not tell whether the passenger was male or female.

        Memphis Police Officer Charles Cathey, a crime scene investigator,
testified that he responded to the scene on September 17, 2007. He said
that he observed a red tractor trailer with the driver’s side window broken
and saw glass on the truck’s steps and small dent marks on the door, “like
something had struck the truck.” Officer Cathey testified that when he
opened the door, he saw a red substance that appeared to be blood on the
inside of the driver’s door and broken glass on the driver’s seat and the
floor beside the seat. He also saw a substance that appeared to be blood on
the outside of the driver’s door and the steps of the truck. Officer Cathey
found a human tooth on the floor of the truck. He said that there was a wire
hanging down from the roof of the cab where a CB radio would typically be
located. Officer Cathey testified that there was a large pool of blood
between the front seats of the truck, and a small pool of blood and broken
glass under the driver’s seat. He located a second human tooth on the
                                     -3-
driver’s seat, underneath a seat cover. Officer Cathey said that the victim’s
body was lying on the floorboard of the cab.

       On cross-examination, Officer Cathey testified that another officer
processed the truck for fingerprints after they towed it to the impound lot.
He said that the officer did not find any usable prints on the outside of the
truck. He did not recall the officer processing the interior of the truck for
fingerprints. Officer Cathey testified that he completed a form in which he
reported that another officer processed a turquoise Saturn for fingerprints
and found that the car was negative for prints.

       Suleman Shamsuddin testified that in September 2007, he owned the
BP service station at 4161 Winchester Road. He said that the video
surveillance system was working on September 17 and that the store had an
automated teller machine (ATM), but the ATM was out of currency. The
[S]tate published the surveillance video from September 17, 2007, to the
jury.

        Sheila Dixon testified that in September 2007, she lived in the
Wooddale Condominiums on Winchester Road. She said that on
September 17, 2007, her boyfriend had wired her money, but she could not
pick up the money transfer because she could not find her identification.
When she saw the [petitioner], with whom she was friends, in the
condominium complex, she asked him if he could get the money transfer
for her with his identification. Ms. Dixon testified that while they were
waiting for a ride to pick up the money gram, the [petitioner] told her that
he had shot a truck driver by mistake. She said that he offered her the truck
driver’s credit cards, and she said that the [petitioner] also had a telephone,
some papers, and a wallet with him. She testified that she did not take the
credit cards, but that “[t]hey ended up in [her] purse.” Ms. Dixon testified
that the person who picked them up to take them to get the money gram
told the [petitioner] that he wanted “that hot CB” that the [petitioner] had.
She recalled seeing the CB in the car, and she said that she was familiar
with CB radios because her boyfriend was a truck driver. Ms. Dixon
testified that the police searched her apartment, and she gave them her
purse, in which they found the credit cards. Ms. Dixon identified the
Comdata credit cards that the [petitioner] offered to her and which the
police found in her purse. Ms. Dixon recalled that the [petitioner] and his
co-defendant gave her a ride sometime before September 17, and she
testified that there was a sawed-off shotgun in between the seats and that
they told her that “they [were] going to check on a trap.” She said that
                                      -4-
checking on a trap meant to her that they were trying to make some money.
Ms. Dixon said that the co-defendant drove the car and the [petitioner] sat
in the passenger’s seat. She testified that she knew the [petitioner] as Big
Daddy and the co-defendant as Unk.

       On cross-examination, Ms. Dixon said that the police came to her
apartment looking for the [petitioner]. She agreed that she told the police
about the [petitioner’s] alleged confession to her while incarcerated on a
forty-eight-hour hold.

        Scarlett Renee Banks testified that on September 17, 2007, from her
back door, she saw the [petitioner] driving a burgundy truck and the co-
defendant driving a turquoise car around the Wooddale Condominiums.
She said that she went outside to where they had gotten out of their
vehicles. Ms. Banks testified that the co-defendant handed her a gun and
said, “‘Huh go put this up.’” She took the gun inside of her home and put it
behind her couch. Ms. Banks said that the gun was a short shotgun that had
plastic and tape on it. She testified that she went back outside, and she saw
the [petitioner] and co-defendant in an empty apartment. She said that they
had “a lot of blood on them” and that they were washing money that had
blood on it. Ms. Banks testified that she gave the police consent to search
her apartment on September 20, 2007. She said that the gun was not in her
apartment when they searched it, but the police came back later and found
the gun somewhere else.

        Marcus Nelson testified that the co-defendant was his uncle. He
testified that he gave the co-defendant a sawed-off shotgun on a Saturday,
which was the 15th of the month but he could not recall which month. Mr.
Nelson said that he identified the gun for the police on September 20, 2007,
and he agreed that he gave the co-defendant the gun on the Saturday before
September 20.

        Tennessee Bureau of Investigation Special Agent Cervinia Braswell,
a forensic scientist in the firearms identification unit, testified that she
examined the shotgun found by police in the course of their investigation in
this case. She explained that the shotgun was a single shot, 12 gauge,
model and that the barrel was sawed off. Agent Braswell said that Hopkins
and Allen manufactured the shotgun between 1898 and 1917. She testified
that the force necessary to pull the trigger was three pounds, but a person
could also fire the weapon if he pulled the hammer back without cocking it
all the way and then let the hammer fall forward. She said that if a person
                                     -5-
hit the back of the gun with a mallet-type hammer with enough force, that
the gun would fire. Agent Braswell clarified that if the hammer is fully
cocked, the person must pull the trigger to fire the gun. Agent Braswell
identified photographs, labeled as Exhibits 40 and 42, which she said
depicted, respectively, pellets consistent with coming from a shotgun shell
and cardboard shotgun shell wad. She testified that she could not identify
pellets as coming from any particular shotgun. Agent Braswell said that for
the medical examiner to find a shotgun shell wad in a victim during an
autopsy, the muzzle of the shotgun “would have to [have been] fairly close”
because the wads lose momentum as they travel.

       Memphis Police Sergeant Anthony Mullins testified that he
participated in the investigation in this case. He identified the shotgun
found by police on September 20, 2007, on Boxdale Street. Sergeant
Mullins said that the shotgun “was inside a plastic bag behind a board that
was used to board up a vacant building.” He stated that the co-defendant
told the police that he gave the gun to Renee Banks. When the police did
not find the gun in Ms. Banks’s apartment, they took the co-defendant to
the area and allowed him to speak with Ms. Banks, who eventually led
them to the location of the gun.

        Sergeant Mullins further testified that he interviewed the [petitioner]
on September 24, 2007. He said that the police had been actively looking
for the [petitioner] for five to six days. Sergeant Mullins testified that he
and his partner, Sergeant Mason, advised the [petitioner] of his rights prior
to the questioning, and the [petitioner] signed a waiver form. Sergeant
Mullins said that the [petitioner] did not appear to be under the influence of
any intoxicants. The [petitioner] told them that he went to Nashville,
Tennessee, on Sunday, September 16, with a friend because his friend had
an appointment for a urine test in connection with his probation. The
[petitioner] stated that they stayed in a hotel that night, went to the 9:00
a.m. test on Monday morning, and immediately returned to Memphis.
Sergeant Mullins said that he showed the [petitioner] pictures of several
individuals with the same name as the [petitioner’s] friend with whom he
allegedly went to Nashville as well as the pictures of the co-defendant and
potential witnesses. Of all the pictures, the [petitioner] said that he only
recognized Sheila Dixon. Sergeant Mullins showed the [petitioner] a still
photograph taken from the BP station located at Winchester Road and
Lamar Avenue that showed a “teal, blue-green Saturn [with] a big piece of
plastic on the back windshield with tape on it,” and the [petitioner] stated
that he recognized the vehicle. Sergeant Mullins could not recall whether
                                      -6-
the [petitioner] said how he recognized the vehicle. He showed the
[petitioner] a second still photograph from the interior of the BP station that
showed the [petitioner] inside the store, and the [petitioner] read aloud the
time stamp on the photograph, which was September 17, 2007 at 2:26 a.m.
The [petitioner] admitted that he had not been in Nashville the evening of
September 16 through September 17. He said that he met a man called Unk
at the BP station, and they ran a scam with credit cards that Unk had.
Sergeant Mullins said that they questioned him further about “that version
of events” and then took a break from the interview. When they returned,
the [petitioner] told them that he wanted to tell them the truth. The
[petitioner] identified a photograph of the co-defendant as the man he called
Unk. He said that the co-defendant approached him about making money.
The [petitioner] drove the Saturn, with the co-defendant as the passenger, to
a truck stop on Knight Road. They approached a truck, and he let the co-
defendant out of the car and drove away. After hearing a loud noise that he
thought sounded like a gunshot, the [petitioner] looked back at the truck
and saw the co-defendant get into the truck, leave the truck, and return to
the car. Sergeant Mullins testified that they told the [petitioner] that they
had previously talked to the co-defendant, who had told them his version of
the events, and that they felt that the [petitioner] “was still being less than
truthful with [them].” They told him that “[h]e could proceed and tell
[them] the full truth, or go with what [they] had, so far.” Sergeant Mullins
said that, at that point, the [petitioner] admitted to being the passenger in
the car and to firing the shotgun. The [petitioner] told them that “[h]e was
just going to try to scare [the victim] out of his money with the gun, but it
went off as soon as he tried to cock it.” Sergeant Mullins testified that,
after the [petitioner] gave his oral statement, they advised him of his
Miranda rights a second time and memorialized his statement in writing. In
his written statement, the [petitioner] admitted to being responsible for the
victim’s death and stated that he accidently shot him while trying to rob
him. The [petitioner] further stated that his co-defendant drove them to the
victim’s truck in a blue-green car with a busted back window, which the co-
defendant had stolen. He said that he took a phone and a wallet from the
victim. They left the area but then returned to the truck and took a CB
radio. The [petitioner] said that he was wearing a black shirt and blue jeans
when he shot the victim, and he changed into a white shirt and jogging
pants at the Wooddale Condominiums, leaving the black shirt and blue
jeans in a vacant apartment. The [petitioner] said that he “attempted to use
[the victim’s Visa credit card] at BP, but [he] didn’t get a chance to use it.”
He said that the clothes he had on during the interview were the same

                                      -7-
       clothes he changed into that day, so Sergeant Mullins collected the clothes
       as evidence.

               Dr. Lisa Funte, a forensic pathologist and an assistant medical
       examiner, testified that lacerations on the victim’s body indicated that the
       shooter fired through an intermediate target, and she agreed that glass could
       have been the intermediate target. Dr. Funte said that because the pellets
       did not have an upward or downward trajectory, the shooter held the
       shotgun level with the ground, and because the victim was inside a truck,
       the shooter most likely had to stand on the steps of the truck. Dr. Funte
       testified that a shortened shotgun fired from close range caused the victim’s
       injuries and that a shotgun wound to his neck and chest caused his death.

               The [petitioner] offered into evidence Tennessee Bureau of
       Investigation reports showing that agents did not find blood on the
       [petitioner’s] clothing.

              The [S]tate called Sergeant Mullins in rebuttal, and the court
       qualified him as an expert in crime scene investigation. He opined that,
       based on his analysis of crime scene photographs, a person could have
       entered the victim’s truck twice without getting blood on his clothes if he
       had moved the victim’s body out of the driver’s seat.

Id. at *3-7.

       In addition, this court described the proof at the suppression hearing that took
place before trial as follows:

              Prior to trial, the [petitioner] presented two motions to suppress his
       statement. His first motion alleged that he was under the influence of
       marijuana when interviewed by police; therefore, his waiver of his Miranda
       rights was not voluntary, knowing, or intelligent. His second motion
       alleged that the court should exclude his statement because it arose due to
       an improper arrest. On August 21, October 2, and October 24, 2008, the
       court held suppression hearings, at which the parties presented the
       following evidence.

              State’s Proof. Memphis Police Officer Joe Stark testified that he
       was the case coordinator for the investigation into the victim’s death. He
       explained that he developed the [petitioner] as a suspect based on the co-
       defendant’s identification of the [petitioner], various witness statements,
                                            -8-
and video surveillance tapes of the [petitioner] on the night of the victim’s
murder. Officer Stark testified that none of the witnesses were able to tell
police where the [petitioner] lived.

       On cross-examination, Officer Stark agreed that he secured neither a
search warrant for any residence where the [petitioner] might have been nor
an arrest warrant for the [petitioner].

        Memphis Police Sergeant Anthony Mullins testified that he
interviewed the [petitioner] after police took the [petitioner] into custody.
Sergeant Mullins said that he had the [petitioner] read aloud the advice of
rights form, and the [petitioner] did not have any difficulty reading the
form. He stated that the [petitioner] was “kind of unkempt, but he was
alert. He was basically cooperative during the entire process . . ., and he
seemed to be pretty clear[-]headed, lucid.” Sergeant Mullins testified that
nothing in his interaction with the [petitioner] led him to believe that the
[petitioner] was not in control of his faculties or intoxicated in any way.

        On cross-examination, Sergeant Mullins testified that the [petitioner]
had said that he had smoked marijuana “about two hours before he was
even arrested . . . [w]hich was about three hours before [they] talked to
him.” Sergeant Mullins stated that it might have been up to five hours
between when the [petitioner] smoked the marijuana and when he
interviewed him. He testified that it took six and a half hours to begin
typing the [petitioner]’s written statement because the [petitioner] told
“elaborate” lies, they took breaks, and they took time to attempt to verify
what the [petitioner] told them. Sergeant Mullins said that it was necessary
to tell the [petitioner] parts of what the police already knew so that the
[petitioner] would realize that the police were not merely guessing about
his involvement.

        Detective Jason Bartlett, of the Shelby County Sheriff’s Office,
testified that the Memphis Police Homicide Unit requested that the sheriff’s
office assist them in locating the [petitioner]. Detective Bartlett said that
his research on the [petitioner] led him to a residence on Auburn Road. He
and his team went to that address. Detective Bartlett testified that they

       knocked on the door, and . . . a young, adult, male black . . .
       answer[ed] the door. [They] identified [themselves] to the
       young adult. [They] were in gear that said Sheriff on it. And
       [they] showed the young male black a picture of [the
                                     -9-
       petitioner] and asked him if he knew him and the subject
       identified that he did know him. [They] asked if [the
       petitioner] was inside the residence and the young male black
       said . . . he was. And [they] asked him where he was and . . .
       he pointed towards the back of the residence on the inside. At
       that time, the young male black . . . stepped out of the way of
       the doorway allowing [them] access into the residence.

      Detective Bartlett said that they found the [petitioner] lying on a bed
and handcuffed him. He stated that they did not search the residence.

       On cross-examination, Detective Bartlett said that the person who
answered the door appeared to be at least eighteen years old. He agreed
that he did not ask the person who he was, whether he had permission to
grant access to the home, or to sign a consent to search form. Detective
Bartlett testified that he did not encounter anyone else in the house and did
not recall anyone asking him whether he had a warrant.

        Defense Proof. Geraldine Maldrough testified that in September
2007, she lived on Auburn Road with her sister, Edna Elrod, and Ms.
Elrod’s two grandsons, Lindsey and Delvon. Ms. Maldrough recalled that
on a Monday during the day, Delvon came to her room, which was in an
attached mother-in-law suite, and told her that the police w[]ere there
looking for the [petitioner]. She went to the front of the house and asked an
officer whether they had a warrant. The officer replied that they did not
need a warrant. Ms. Maldrough said that by that time, they were taking the
[petitioner] out of the house. She said that she saw more than four officers.
Ms. Maldrough testified that Delvon was fourteen years old at the time.

        The defense called Detective Bartlett, who testified that he did not
recall having a conversation with the [petitioner] about whether the
[petitioner] was under the influence of any drugs. He stated that he had
reviewed a videotape of when he walked the [petitioner] into the homicide
office. Detective Bartlett testified that the tape recorded his making a
statement that the [petitioner] had told the officers that they were ruining
his high.

      Edna Elrod testified that she was a friend of the [petitioner] and that
they had dated from 1998 until 2001. She said that she lived on Auburn
Road with her sister, her son, and her grandsons, Lindsey and Delvon. Ms.
Elrod stated that Delvon was fourteen years old in September 2007. She
                                    -10-
       testified that the [petitioner] had been staying with her for approximately
       one week before his arrest.

               In its order denying the [petitioner’s] motion to suppress his
       statement, the court found that the [petitioner’s] arrest was illegal because
       (1) the [petitioner] was an invited guest, (2) the police did not have a
       warrant, (3) they did not have valid consent to enter, and (4) there were no
       exigent circumstances. Under the precedent of New York v. Harris, 495
       U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the court ruled that the
       exclusionary rule did not require that the [petitioner’s] statement be
       suppressed because the police had probable cause for arresting the
       [petitioner] and they did not obtain his statement by exploiting the unlawful
       entry.

Id. at *1-3.

       Relevant to this appeal, the petitioner challenged the trial court’s suppression
ruling on direct appeal, but this court upheld it. Id. at *7. This court first rejected the
petitioner’s argument that his Miranda waiver was not knowing and voluntary because he
was intoxicated with marijuana at the time. Id. at *7-8. This court noted Sergeant
Mullins’ testimony that an estimated three to five hours had passed between when the
petitioner smoked marijuana and when officers began the interview and that all of the law
enforcement officers who testified agreed that the petitioner did not appear to be
intoxicated. Id. at *8. This court also noted that the petitioner was capable of giving a
narrative of past events and creating an elaborate false story prior to eventually detailing
how he shot the victim while robbing him. Id. This court further noted that the petitioner
presented no evidence suggesting that he was so influenced by drugs that his “confession
cannot be considered the product of a free mind and rational intellect.” Id. (citation
omitted). This court accordingly found that the petitioner was not entitled to relief with
regard to the knowing and voluntary nature of his confession. Id.

       With regard to the petitioner’s assertion that his statement should have been
excluded because it arose during an improper arrest, this court, in reliance upon New
York v. Harris, 495 U.S. 14 (1990), declined to exclude the statement. Id. at *7, *9-10.
This court noted that, under Harris, the exclusionary rule did not bar the use of a
statement if it was taken after an unlawful arrest that was nonetheless supported by
probable cause. Id. at *10 (citing State v. Jenkins, 81 S.W.3d 252, 264 (Tenn. Crim.
App. 2002)). Turning to the present case, this court observed that “[t]he police had
information from the co-defendant and other witnesses regarding the [petitioner’s]
involvement, and they took the [petitioner’s] statement at the police station after ensuring
that the [petitioner] understood his Miranda rights.” Id. This court concluded that “the
                                            -11-
police had probable cause to arrest the [petitioner] in his residence and that the
exclusionary rule does not require the suppression of his subsequent statement taken
outside of the residence.” Id.

       On March 14, 2012, the petitioner filed a pro se petition for post-conviction relief.
Thereafter, various amended and supplemental petitions were filed through appointed
post-conviction counsel as well as pro se. In his petitions, the petitioner raised a number
of allegations, including three of the issues pursued in this appeal: that trial counsel was
ineffective for (1) failing to argue that the petitioner’s arrest was not supported by
probable cause; (2) failing to argue that the petitioner’s judicial determination of probable
cause was unreasonably delayed; and (3) not attempting to obtain the unedited footage
from “The First 48” television show.

       The post-conviction court conducted an evidentiary hearing, at which the
petitioner testified that he “[v]aguely” remembered the events of the night he was
arrested. He recalled that he was asleep at his girlfriend’s house and woke “up with guns
in [his] face.” He admitted that, prior to falling asleep, he was “[g]etting high” on
“[w]eed, cocaine, rock cocaine.” Specifically, he “had been smoking rock cocaine all
night and . . . had smoked about five blunts.” The petitioner said that when he took
drugs, he became “spaced out,” and his mind felt “clouded.” He also said that, when
under the influence of drugs, he was capable of telling an elaborate lie “if [he] was trying
to get out of something.” The petitioner estimated that on the night he was arrested, he
was “[o]ver the scale” on a scale of one to ten with ten being the “highest” he could be.

       The petitioner testified that he could not recall how long it took for him to get to
the police station because he was high and drowsy, having only been asleep for
approximately thirty minutes when he was awakened by police. He could not recall
whether anyone advised him of his Miranda rights. He said that the officers placed him
in an interrogation room, and he “put [his] head down and went to sleep.” He could not
remember how long the interrogation lasted but noted that the “paper” showed it lasted
seven and a half hours. He claimed he was “in and out” of consciousness during the
interview. With regard to the effect of the drugs wearing off, the petitioner said,
“[Y]ou’re high till you get at least a[n] eight-hour sleep in order to get back functioning.”

        The petitioner admitted that he told the officers a false story that he was in
Nashville with a friend on the night in question before ultimately confessing to the
murder. Asked why he changed his story, the petitioner explained, “When you been
arising really to try to get away from people and scared, it’s no telling what you will do
when you’re high or sober.” He elaborated, “I couldn’t tell you why it changed. It just
changed because I believe because I was scared.” He claimed that he was threatened “a
lot of times.” In particular, the officers told him that they were “going to lock [him] up
                                            -12-
for the rest of [his] life if [he] d[id]n’t tell the truth.” At one point, an officer told him
that he was free to go, but he was unable to do so because his ankle was cuffed to a chair.

       The petitioner admitted that the officers confronted him with images of himself at
a gas station and told him that they had spoken with his co-defendant. He said that the
officers told him that he would be set free if he told them “what they showed [him] on a
paper that suppose [sic] to be [his] charge partner wrote down.” He clarified that the
officers wanted him to write down verbatim the contents of his co-defendant’s statement.
The petitioner said that he complied because he was in and out of consciousness and
wanted to get some more rest and drugs. However, even though he claimed to be in and
out of consciousness, the petitioner recalled the interrogation, answering the officers’
questions, and being able to write his statement. The petitioner recalled that his case was
featured on “The First 48” television show, but he did not remember seeing the camera
until after the interrogation ended and he was booked. However, he remembered the
officers’ talking about it. The petitioner claimed that he was arrested on September 24,
2007, but was not taken before a judge until September 27, 2007.

        The petitioner testified that he attempted to seek interlocutory review of the trial
court’s ruling on the motion to suppress. According to the petitioner, he and trial counsel
did not discuss the suppression hearing beforehand, so he did not know what to expect.
He asked trial counsel to appeal the trial court’s suppression ruling, but trial counsel
advised him to address it on direct appeal. The petitioner stated that he was satisfied with
the witnesses trial counsel presented at the suppression hearing, but he was dissatisfied
that counsel failed to ask those witnesses certain questions. During counsel’s
representation of him, the petitioner provided counsel with legal authority and various
motions, but counsel told the petitioner that the motions were frivolous. The petitioner
said that he wanted trial counsel to look at the door to his girlfriend’s house where he was
arrested, so counsel could see that the door was broken and that it would have been easy
for the police to “pry it open and just go in.”

        The post-conviction court sought clarification as to what the petitioner was
challenging regarding trial counsel’s performance during the suppression hearing
considering that the trial court ruled that the petitioner’s arrest was illegal, but, because
the police had probable cause to arrest him, his confession was not fruit of the illegal
arrest. The petitioner said that trial counsel “argued . . . [the petitioner’s] statement but
[counsel] didn’t argue that they came and arrest[ed] [the petitioner] illegally, [counsel]
just argued the statement.” Post-conviction counsel then clarified that trial counsel failed
to dispute that the police had probable cause to arrest the petitioner. The post-conviction
court disagreed, noting that the State presented evidence supporting a finding of probable
cause at the suppression hearing.

                                            -13-
       The petitioner testified, with respect to the trial, that he felt trial counsel should
have hired a blood splatter expert. He also mentioned that it was trial counsel’s decision
that the petitioner not testify because “[counsel] felt that he would win without [the
petitioner] testifying.” The petitioner was dissatisfied that trial counsel did not have a
surrebuttal prepared. He said that his girlfriend, his girlfriend’s son, and the boy who
answered the door to his girlfriend’s home the night he was arrested could have been his
alibi witnesses. He claimed he provided those names to trial counsel, but “[counsel]
didn’t do nothing.” He also claimed that he never gave a statement of admission to
Sheila Dixon. After further inquiry by the post-conviction court, the petitioner reiterated
his dissatisfaction with trial counsel’s not calling a blood splatter expert in rebuttal, not
calling his co-defendant to testify, not impeaching Sheila Dixon, and not obtaining “The
First 48” video footage. He also said that trial counsel “should [have] brought in proof
showing that the evidence within the whole entire case was not substantial to prove the
statement.” He further said that the State should have had the footage from “The First
48” that was filmed during his interrogation.

       Sergeant1 Anthony Mullins testified that in 2007, he worked as a detective for the
Memphis Police Department’s Homicide Bureau. Sergeant Mullins was not the arresting
officer, but he interviewed the petitioner and co-defendant. Asked about his typical
practice regarding arresting or interrogating suspects, Sergeant Mullins said that he may
ask a suspect to voluntarily come in for an interview even though he had probable cause
to arrest him or her. He elaborated that he preferred to interview a suspect to ensure that
formal charges were appropriate because he had arrested people in the past for crimes
they did not commit “because they weren’t vetted enough.” Although he could not recall,
Sergeant Mullins assumed that the arresting officers had probable cause to arrest the
petitioner if they brought him to the police department in order to be interviewed.

        Sergeant Mullins testified that he did not typically issue a warrant based solely on
a co-defendant’s statement, but a co-defendant’s identification of someone as being
involved “would be enough for [him] to want to talk to whoever they name.” He could
not remember whether anyone other than the co-defendant had implicated the petitioner
in the crime, but he did recall that the police had recovered property and seen surveillance
footage linking the petitioner to the crime.

       Sergeant Mullins could not recall how long his interview of the petitioner lasted,
nor did he recall the petitioner’s asking to leave at any point. He said that the petitioner
did not appear to be intoxicated during the interview but, rather, was lucid, alert, and
       1
         At the time of the post-conviction hearing, Sergeant Mullins had been promoted to the rank of
Lieutenant. However, we will refer to him by the rank of Sergeant to be consistent with the evidence and
testimony presented in the petitioner’s trial.

                                                 -14-
gave appropriate responses to questions. Sergeant Mullins said he had been in an
interview room with an intoxicated person, and, in that situation, he did not interview that
person. Contrary to the petitioner’s assertion, Sergeant Mullins said that the petitioner
was not in and out of consciousness or falling asleep during the interview. He stated that
if a person were falling in and out of consciousness, he might have called an ambulance
for that person but certainly would not have continued the interview.

        Upon questioning by the post-conviction court, Sergeant Mullins briefly
referenced the “forty-eight-hour hold” procedure utilized by the police department during
that time period:

       At . . . the time we’re talking about, we used the forty-eight-hour hold.
       Where if we had the probable cause we’d put them on a hold and that might
       be the reason for the hold, in essence, is we had significant information but
       this person is so intoxicated or I’ve had people that needed medication, so
       we stopped the interview. I’ve had people that . . . could barely sit up when
       they were brought into our office, so . . . if it were applicable we’d put them
       in the jail.

       Upon further questioning by post-conviction counsel, Sergeant Mullins elaborated
that the forty-eight-hour hold was not only used when a suspect was intoxicated.
Sergeant Mullins explained how it was sometimes used before a suspect was charged:

       If, for example, I may have enough to . . . charge this person with a crime,
       and in this case a murder, and maybe it’s just a quirk on my part but I don’t
       -- it’s too serious for me to say, hey, I got just enough to charge him, so
       let’s just charge him and be done with it. We would use the forty-eight-
       hour hold, we would have people that were in the hospital, we can’t talk to
       them. Maybe they didn’t do it but we can’t ask them because they’re
       knocked out under the influence of narcotics. We’ve had people that we
       would get them in at our office late in the evening and we may begin the
       interview and they say, look, I’m tired. We’ve got enough that . . . we just
       can’t in good conscious just let them go. And we had that tool available, so
       we used it. Quite frankly, we used the forty-eight-hour hold.

        Sergeant Mullins also recalled “The First 48” television show that was filmed in
Memphis during that time period. His understanding from the producers of the show was
that all the footage was shipped to New York and that any footage the producers decided
not to use was destroyed. He was aware of other lawyers and courts attempting to get
footage from the producers, but he was not aware of any being successful. Sergeant
Mullins agreed that the entire six-hour interview of the petitioner was not aired on the
                                            -15-
television show, meaning “[t]he other five and a half hours w[ere] cut on the editing
floor.”

       Detective Joe Stark testified that he worked as a detective for the Memphis Police
Department’s Homicide Bureau in 2007 and was the case coordinator in the petitioner’s
case, meaning he managed the investigation and determined whether to issue an arrest or
search warrant. Detective Stark stated that the homicide bureau typically did not seek an
arrest warrant for a suspect in a homicide case but, instead, attempted to interview the
individual before formally charging him or her in order to make sure the person did not
have a “plausible explanation” for the evidence against him or her.

       Detective Stark testified that officers discovered the body of the victim in his truck
on September 17, 2007. They then spoke to witnesses who had seen a green Saturn with
a broken, taped-up back window parked next to the victim’s truck. One of the witnesses
was very specific about the make and model of the car because his wife owned a similar
one. Another witness, Theresa Rucker, saw the Saturn in the immediate vicinity of the
crime scene and noted that it was driven by an African-American man with a passenger
who was also African-American, although she was not positive of the passenger’s gender.
The officers subsequently found a surveillance video that showed the Saturn pull into a
nearby convenience store parking lot and then, seconds later, showed the petitioner trying
to use an ATM inside the store.

        Officers arrested the co-defendant, Calvin Nelson, who was seen driving a Saturn
matching the description, and recovered the murder weapon from information received
from Mr. Nelson. Mr. Nelson told the officers that the petitioner “was the one that pulled
the trigger.” Officers also questioned Sheila Dixon who was found with the victim’s
credit cards in her possession. Ms. Dixon said that she received the credit cards from the
petitioner, but she was not able to testify whether the petitioner was at the scene of the
murder. Detective Stark described Mr. Nelson and Ms. Dixon as co-defendants and
could only recall one other person implicating the petitioner, although “it was going to be
like a hearsay type thing.” He admitted that he did not issue a warrant for the petitioner’s
arrest prior to having him brought in for questioning, but Detective Stark believed he
“had enough to charge him for the first degree murder.”

       Detective Stark explained when a “forty-eight-hour hold” was used: “[B]asically
when it would get late at night or we feel like there was something else to do. But before
you put somebody on a forty-eight-hour hold we always had enough to charge them with
a charge.” He recalled that the petitioner gave a confession during the forty-eight-hour
hold. Detective Stark recalled that the petitioner was arrested without a warrant on
September 24, 2007, at 3:30 p.m., and he sought a judicial determination of probable
cause on September 26, 2007, at 1:05 p.m. Detective Stark believed that even if the
                                            -16-
petitioner had not given a confession, there was still enough evidence to charge him with
murder.

        Trial counsel testified that the petitioner was “easy to get along with and wasn’t
very demanding of the things he thought [counsel] should be doing.” He recalled that the
petitioner would ask him “what [they] were going to do and [counsel] would tell him
what [counsel’s] plan was and he and [counsel] were on the same page, . . . pretty early
on.” He did not remember having any disagreements with the petitioner or “not doing
things [the petitioner] wanted [him] to do.” Trial counsel said that his usual practice was
to file a boilerplate motion to suppress and then a more specific memorandum in support
or an amended motion after he had an opportunity to review the evidence. However, he
recalled that as the suppression hearing proceeded, he realized that he needed to call other
witnesses and had the hearing bifurcated twice to allow for further testimony.

       Trial counsel acknowledged that he never requested the unedited footage of “The
First 48” television show that featured the petitioner’s case. However, he elaborated that
the reason he did not do so was because, in another case he had handled, he contacted the
producer about getting such footage and was informed that any footage not aired on the
show was destroyed. He made this phone call within months of his representation of the
petitioner and did not “duplicate” it just to be told again that the producers no longer had
the uncut footage. Moreover, although there was one three-second portion of the final
video that was helpful, it also captured the petitioner’s confessing to shooting the victim
and corroborated part of the State’s case.

        Trial counsel testified that the petitioner did not have any interest in testifying.
The petitioner never asked him to hire a blood splatter expert, nor did trial counsel know
what retaining such an expert “would have accomplished in [the petitioner’s] favor at his
trial.” The petitioner never suggested that he was not at the crime scene or gave trial
counsel the names of any witnesses to look for.

       Trial counsel testified that he did not argue at the suppression hearing that the
police lacked probable cause to arrest the petitioner because he did not think it was a fight
he would win in light of the State’s evidence. He tried not to raise frivolous or fruitless
arguments with the court because doing so could damage his credibility. Regarding the
length of the petitioner’s detention, trial counsel noted that the petitioner confessed six
hours after being brought into custody and that Sergeant Mullins provided a reasonable
explanation for why it took that long. Trial counsel described the petitioner as a “silent
partner” at the suppression hearing, making no requests of trial counsel to do additional
work.



                                            -17-
       Following the conclusion of the hearing, the post-conviction court denied the
petition. With regard to “The First 48” television show, the court noted that trial counsel
and attorneys in other cases had made efforts to obtain video footage from the show but
that once the show’s producers edited the program, any unused footage was destroyed.
The court also noted that some aspects of the show were staged and not always shown in
sequential order. The court determined that the video would have been inadmissible due
to the alteration and editing. The court, therefore, found that the petitioner did not
establish ineffective assistance of counsel on this ground.

       Regarding the petitioner’s motion to suppress, the post-conviction court noted that
trial counsel had successfully litigated the legality of the petitioner’s arrest at the
suppression hearing but that the trial court and this court had found that the arrest was
supported by probable cause and that the petitioner’s statement was therefore admissible.
The post-conviction court found again that the petitioner’s arrest was supported by
probable cause due to the statements of Mr. Nelson and Ms. Dixon, corroboration from
witnesses who saw the car in the vicinity, and the petitioner’s being seen in the
immediate vicinity. The court further found no ineffectiveness in trial counsel’s failure to
argue that there was no probable cause because trial counsel, “an experienced long-
seasoned veteran criminal trial lawyer who’s tried many homicide charges,” felt there
was no basis for such an argument. The court also rejected the petitioner’s forty-eight-
hour hold argument, finding that the petitioner was not unduly delayed and was brought
before a magistrate within forty-eight hours of his arrest. The court determined that the
petitioner was not under the influence or unable to give a knowing and voluntary
statement. The court ultimately found that trial counsel was not ineffective and provided
“very proper representation” that was “very effective in the manner in which he defended
[the petitioner].”

                                         ANALYSIS

        In this appeal, the petitioner alleges that trial counsel was ineffective for (1) failing
to argue that the petitioner’s arrest was not supported by probable cause; (2) failing to
argue that the police unreasonably delayed in seeking a judicial determination of probable
cause; and (3) not attempting to obtain the unedited footage from “The First 48”
television show. The petitioner also sets forth the additional argument that his due
process rights were violated by the State’s failing to preserve unedited footage from “The
First 48” television show.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
                                              -18-
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

                          I. Ineffective Assistance of Counsel

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel’s representation, he
or she would not have pled guilty but would instead have insisted on proceeding to trial.

                                            -19-
Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn.
2001).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

                        A. Arrest Supported by Probable Cause

       The petitioner first argues that trial counsel was ineffective because he failed to
argue in the motion to suppress that the petitioner’s arrest was not supported by probable
cause.

       “Probable cause . . . exists if, at the time of the arrest, the facts and circumstances
within the knowledge of the officers, and of which they had reasonably trustworthy
information, are ‘sufficient to warrant a prudent [person] in believing that the [defendant]
had committed or was committing an offense.’” State v. Echols, 382 S.W.3d 266, 277-78
(Tenn. 2012) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)).

       At the post-conviction evidentiary hearing, trial counsel testified that he did not
argue at the suppression hearing that the police lacked probable cause to arrest the
petitioner because he did not think it was a fight he would win in light of the State’s
evidence and that he tried not to raise frivolous or fruitless arguments because doing so
could damage his credibility. In its order denying the petition, the post-conviction court
found that trial counsel was not ineffective for failing to argue that the petitioner’s arrest
was not supported by probable cause because trial counsel, “an experienced long-
seasoned veteran criminal trial lawyer who’s tried many homicide charges,” felt there
was no basis for such an argument. The post-conviction court found that the petitioner’s
arrest was indeed supported by probable cause and noted that this court also determined
such on direct appeal.

       Upon review, we conclude that the record supports the post-conviction court’s
determination. At the time of the petitioner’s unlawful arrest, the police had information
that witnesses saw a turquoise Saturn with a broken and taped-up rear window parked
next to the victim’s truck in which his body was found. One witness told the police that a
Saturn matching that description sped by her around 2:00 a.m. the day of the murder.
The witness recalled that the driver was an African-American male and the passenger
was also African-American, although she was not sure whether the passenger was male
or female. Officers obtained surveillance video from a nearby convenience store that
                                            -20-
showed the Saturn pulling into the parking lot and, seconds later, the petitioner
attempting to use an ATM inside. The officers identified the co-defendant as being
involved in the offense, and the co-defendant provided a statement implicating the
petitioner in the crime and providing information that led to the murder weapon. The
officers questioned Sheila Dixon, who was found with the victim’s credit cards in her
possession and said she received the cards from the petitioner. All of this information
was known by Detective Stark when he directed the arresting officer to locate and arrest
the petitioner. As this court determined previously on direct appeal, these facts were
sufficient to warrant a prudent person in believing that the petitioner was involved in the
murder. Therefore, trial counsel was not deficient for failing to argue that the petitioner’s
arrest was not supported by probable cause.

       Even if the petitioner’s arrest was not supported by probable cause, his subsequent
statement to police may still be admissible if it is not “fruit of the poisonous tree.” See
State v. Johnson, 980 S.W.2d 414, 423 (Tenn. Crim. App. 1998). “[T]he primary inquiry
is ‘whether [the statement] was sufficiently an act of free will to purge the primary taint
of the unlawful invasion.’” Id. (quoting Brown v. Illinois, 422 U.S. 590, 599 (1975)). In
making this determination, courts are to consider: (1) the presence or absence of Miranda
warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of
intervening circumstances; and finally, of particular significance, (4) the purpose and
flagrancy of the official misconduct. Id. (quoting State v. Huddleston, 924 S.W.2d 666,
674 (Tenn. 1996)).

       In this case, first, the petitioner was provided multiple Miranda warnings. This
court has previously rejected the petitioner’s argument that he was intoxicated, and the
testimony at the post-conviction hearing likewise indicates that he was not intoxicated.
Second, there was a relatively short time period between the petitioner’s arrest and the
giving of his statement. Third, before giving his statement to the police, the petitioner
first gave an elaborate, false story to the officers that was arguably an intervening
circumstance demonstrating that the petitioner’s later decision to confess was an act of
free will. Lastly, the testimony at the post-conviction hearing indicates that the officers
believed they had probable cause to arrest the petitioner and only sought to interview him
before obtaining an arrest warrant to ensure that the charges were appropriate.

                                 B. Unreasonable Delay

       The petitioner next argues that trial counsel was ineffective because he failed to
argue in the motion to suppress that the judicial determination of probable cause was
unreasonably delayed.



                                            -21-
        A judicial determination of probable cause that occurs within forty-eight hours of
a defendant’s arrest is generally sufficient to satisfy the Fourth Amendment, unless there
is evidence that the probable cause determination was unreasonably delayed for the
purpose of gathering additional information to justify an arrest, was motivated by ill will
toward the defendant, or constituted a “‘delay for delay’s sake.’” Huddleston, 924
S.W.2d at 672 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)).
“[I]f the statement was given prior to the time the detention ripened into a constitutional
violation, it is not the product of the illegality and should not be suppressed.” Id. at 675.

        In ruling on this issue, the post-conviction court found that “there was [no] issue
that [trial counsel] could [have] raised” because the petitioner was brought before a
magistrate within forty-eight hours and there was “enough probable cause at that point to
hold him and charge him.” Upon our review, we likewise discern no ineffectiveness on
trial counsel’s part. The evidence shows that the petitioner was arrested at 3:30 p.m. on
September 24, 2007. He was read his Miranda rights at 5:24 p.m., began giving his
typewritten statement at 11:50 p.m., and finished his typewritten statement at 12:42 a.m.
the following day. The magistrate made a probable cause determination on September
26, 2007, at 1:05 p.m., within forty-eight hours of the petitioner’s arrest.

      The petitioner has failed to show that this presumptively reasonable delay was
done for an impermissible reason. When the petitioner was brought to the police
department, the officers had sufficient probable cause to support his arrest. Although
Sergeant Mullins interviewed the petitioner to ensure that it was appropriate to charge
him and that the petitioner did not have a “plausible explanation” for the evidence against
him, he did not seek to gather additional information to justify the arrest. Trial counsel
was not ineffective for failing to assert a meritless argument.

       Moreover, even if the delay was unlawful, the confession was not “fruit of the
poisonous tree” requiring suppression of the statement. See Huddleston, 924 S.W.2d at
674. In making this determination, we consider: (1) the presence or absence of Miranda
warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of
intervening circumstances; and finally, of particular significance, (4) the purpose and
flagrancy of the official misconduct. See id. at 674-75 (considering these factors in the
context of a Gerstein2 violation). Here, the petitioner was provided multiple Miranda
warnings, his statement was provided well within the forty-eight-hour time period, his
first giving a false story to the officers was arguably an intervening circumstance
dissipating the taint of any illegal detention, and the delay was not for some flagrant
reason but to provide the petitioner an opportunity to explain the evidence against him.
       2
         In Gerstein v. Pugh, 420 U.S. 103, 125, the United States Supreme Court determined that the
Fourth Amendment mandates a prompt judicial determination of probable cause as a prerequisite to any
extended restraint of liberty after a warrantless arrest.
                                               -22-
                                  C. Television Footage

       The petitioner next argues that trial counsel was ineffective because he did not
attempt to obtain the unedited footage of his arrest and the investigation from “The First
48” television show.

        At the post-conviction hearing, trial counsel acknowledged that he did not request
the unedited footage of “The First 48” television show that featured the petitioner’s case.
However, he elaborated that the reason he did not do so was because, in another recent
case he had handled, he contacted the producer about getting such footage and was
informed that any footage not aired on the show was destroyed. He made this phone call
within months of his representation of the petitioner and did not “duplicate” it just to be
told again that the producers no longer had the uncut footage. Sergeant Mullins testified
at the post-conviction hearing that his understanding from the producers of the “The First
48” television show was that all the footage was shipped to New York and any footage
that the producers decided not to use was destroyed. He was aware of other lawyers and
courts attempting to get footage from the producers, but he was not aware of any being
successful. The petitioner has failed to prove that trial counsel was deficient for failing to
needlessly duplicate a phone call.

        Moreover, the petitioner has failed to establish prejudice. In order to succeed on a
claim that counsel did not properly investigate or call favorable witnesses at trial, a
petitioner must generally elicit favorable testimony from those witnesses at the
evidentiary hearing, as a post-conviction court may not speculate “on the question of . . .
what a witness’s testimony might have been if introduced” at trial. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). This court has recently emphasized that the
requirements in Black are true for witnesses who should have been called and for any
evidence the petitioner claims should have been discovered and presented. See Randall
K. Madison v. State, No. M2014-01942-CCA-R3-PC, 2015 WL 9488951, at *15 (Tenn.
Crim. App. Dec. 29, 2015). “Failure to do so requires that the claim be denied since the
court may not speculate as to the contents of the missing evidence.” Id. Therefore, even
if trial counsel should have duplicated the phone call to the show’s producers, the
petitioner has not established prejudice because he did not present the raw footage at the
post-conviction hearing. The petitioner “ask[s] that this Court make an exception” to this
general rule because of the “strong likelihood that the unedited footage would have been
beneficial to his case.” However, the petitioner supports this assertion with nothing other
than speculation, and “strong likelihood” is not the relevant standard but instead the
petitioner must establish his factual allegations by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f).

                                            -23-
                                           II. Due Process

        The petitioner lastly argues that his due process rights were violated under State v.
Ferguson, 2 S.W3d 912 (Tenn. 1999), by the State’s failing to preserve unedited footage
from “The First 48” television show. He asserts that the State should have confiscated
the footage before the producers left the city. The petitioner, however, failed to raise this
issue in the trial court, in his motion for new trial, on direct appeal, or in his post-
conviction petition. The petitioner asserts in a footnote that he raised a Brady3 issue and
that it should be considered a Ferguson issue because the case involves lost or destroyed
evidence. However, the petitioner provided no authority for this proposition. Moreover,
the petitioner raised his prosecutorial misconduct claim citing Brady in a pro se amended
petition filed after the post-conviction court had appointed counsel. We note that a
person who is represented by counsel may not simultaneously proceed pro se. See State
v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); State v. Lyons, 29 S.W.3d 48, 51 n.2
(Tenn. Crim. App. 1999). The petitioner also maintains that he should be able to raise
this issue “for the first time in the post-conviction court.” However, he cites no authority
for this proposition either. The petitioner has waived this issue for numerous reasons and
may not pursue it now before this court.

       In addition, the petitioner acknowledges that this court has held that the “[S]tate is
not obliged to furnish the appellant with information, evidence, or material which is
available or accessible to him or which he could obtain by exercising reasonable
diligence.” State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993). Further,
citing to a number of cases, the petitioner acknowledges that Tennessee courts have
repeatedly stated that the State is not required to turn over material that was not in the
possession or control of the State when it was lost. See, e.g., State v. Hutchison, 898
S.W.2d 161, 168 (Tenn. 1994); State v. Middlebrooks, 840 S.W.2d 317, 333 (Tenn.
1992); State v. Carter, 682 S.W.2d 224, 226 (Tenn. Crim. App. 1994); State v. Fox, 701
S.W.2d 233, 236 (Tenn. Crim. App. 1985); State v. Ladarron S. Gaines, No. M2013-
02272-CCA-R3-CD, 2014 WL 4179123, at *8 (Tenn. Crim. App. Aug. 22, 2014); State
v. Yevette Somerville, No. W2001-00902-CCA-R3-CD, 2002 WL 1482730, at *4-5
(Tenn. Crim. App. Feb. 11, 2002).4 However, the petitioner urges this court to determine

        3
            See Brady v. Maryland, 373 U.S. 83 (1963).
        4
          The only contrary authority the petitioner cites is State v. Sheri Lynn Cox, Alias, No. E2005-
00240-CCA-R3-CD, 2005 WL 3369257, at *3 (Tenn. Crim. App. Dec. 12, 2005), in which this court
considered a Ferguson claim regarding receipt books, although there was no evidence the receipt books
were in police custody. However, in that case, the receipt books were exchanged in the presence of a
police officer in order to confirm a shortage of money for which the defendant was later prosecuted. Id.
at *1. Thus, the police allowed the victim organization to retain the receipt books in order to determine
the amount of the loss at issue but never collected them.
                                                  -24-
that the State had a duty to collect the unedited footage from the private actor “The First
48” television show because the private actor was filming a “state activity,” yet he
provides no authority for this distinction. The footage was never in the State’s
possession, and the State had no duty to confiscate it. Even if this issue is not waived, the
petitioner is not entitled to relief.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.

                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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