        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 7, 2014

               MARIET L. PATRICK v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Dyer County
                      No. 08-CR-71     R. Lee Moore, Jr., Judge




              No. W2014-00909-CCA-R3-PC - Filed November 24, 2014




Petitioner, Mariet L. Patrick, was convicted of evading arrest in a motor vehicle, possession
of .5 ounces or more of marijuana with intent to sell or deliver, and possession of .5 grams
or more of cocaine with intent to sell or deliver. For these crimes, he received an effective
sentence of twenty years. Petitioner timely filed a petition for post-conviction relief in which
he alleged that he received ineffective assistance of counsel. The post-conviction court
denied relief, finding that Petitioner failed to prove his claims by clear and convincing
evidence. After a review of the record and applicable authorities, we affirm the judgment
of the post-conviction court.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and C AMILLE R. M CM ULLEN, JJ., joined.

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the petitioner, Mariet L. Patrick.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District
Attorney General, for the respondent, State of Tennessee.

                                          OPINION

                             Factual and Procedural Background
        On October 25, 2007, a “concerned citizen” called Officer Mason McDowell of the
Dyersburg Police Department, reporting that Petitioner possessed marijuana and cocaine and
that he was using his girlfriend’s maroon Buick sedan. Based on this tip, Officer McDowell
discovered that Petitioner’s driver’s license was suspended and reviewed a picture of
Petitioner. Officer McDowell then corroborated a portion of the caller’s information by
personally verifying that the Buick was parked at the reported location.

       The following day, Officer McDowell and his partner positioned their patrol car in a
parking lot beside Jenkinsville-Jamestown Road, near the location where the Buick was
parked the evening before. Eventually, the Buick drove in front of the patrol car, and Officer
McDowell, familiar with Petitioner’s appearance, identified Petitioner as the driver of the
vehicle. The officers immediately began following the Buick and initiated a traffic stop for
the offense of driving on a suspended license. Once the emergency lights were activated, the
Buick accelerated and failed to stop. After leaving Jenkinsville-Jamestown Road, the Buick
navigated several streets before turning onto a gravel driveway and cutting through a field.

       While driving through the field, Petitioner stuck a plastic Ziploc bag out of the
driver’s window and emptied white powder from the bag onto the ground. The Buick
reentered the roadway and drove approximately a quarter of a mile before stopping. The
officers removed Petitioner and his passenger, Brandon Lewis, from the Buick. The
subsequent search of the vehicle yielded what proved to be cocaine and marijuana, in
addition to digital scales and $1,683 in cash. The white powder dumped onto the field was
also confirmed to be cocaine.

        On June 30, 2010, Petitioner was convicted by a jury of (1) evading arrest in a motor
vehicle, a Class E felony; (2) possession of .5 ounces or more of marijuana with intent to sell
or deliver, a Class E felony; and (3) possession of .5 grams or more of cocaine with intent
to sell or deliver, a Class B felony. For the cocaine conviction, the trial court sentenced
Petitioner to twenty years as a persistent offender. For the other convictions, the trial court
sentenced Petitioner to six years each, as a career offender, to run concurrently with the
twenty-year sentence.

        Petitioner’s convictions and sentences were affirmed by this Court on direct appeal.
State v. Mariet L. Patrick, No. W2010-02074-CCA-R3-CD, 2011 WL 3276192 (Tenn. Crim.
App. July 28, 2011), perm. app. denied, (Tenn. Nov. 16, 2011).1 On November 19, 2012,
Petitioner filed a pro se petition for post-conviction relief, asserting numerous grounds,
including the State’s failure to provide notice of intent to seek sentence enhancements,
defective indictments, and ineffective assistance of counsel at trial and sentencing. On April
9, 2013, Petitioner filed an amended petition for post-conviction relief through appointed
counsel. The amended petition focused solely on Petitioner’s claim of ineffective assistance
of counsel, arguing that trial counsel “[f]ailed to meet with the petitioner prior to trial to


       1
           The preceding facts came from that opinion. See Mariet L. Patrick, 2011 WL 3276192 at *1-3.

                                                   -2-
develop a defense for trial,” “[f]ailed to interview witnesses prior to trial,” “failed to present
prospective evidence during trial,” “failed to advise the petitioner of the proper [s]entencing
[r]ange for which he would be tried,” and “[f]ailed to argue that the indictments are
unconstitutional.” However, the amended petition also incorporated all other grounds
asserted in the original petition.

        After the State filed its response, the post-conviction court held an evidentiary hearing
on June 4, 2013. At the hearing, Petitioner’s counsel argued that trial counsel rendered
ineffective assistance by: (1) failing to challenge the sufficiency or constitutionality of the
indictments; (2) failing to investigate or obtain additional evidence; (3) failing to contest the
jurisdictional validity of the traffic stop; and (4) failing to request that the State disclose the
identity of the informant whose phone call to the Dyersburg police initiated the sequence of
events leading to Petitioner’s arrest.

        Petitioner testified that, after being indicted, he was appointed counsel for trial.
Regarding the alleged deficiencies with the indictments, Petitioner stated his belief that it was
inappropriate for the indictment to charge him with two counts of possession with intent to
sell or deliver because the State should have had to specify whether it was charging him with
intent to sell or intent to deliver, each as a separate offense. Petitioner testified that he was
primarily concerned about the effect that this deficiency had on his sentencing range, but he
also admitted that he never discussed these concerns with his trial counsel and that the
content of the indictments did not impair his ability to prepare a defense.2

        Regarding trial counsel’s ineffectiveness in failing to investigate or obtain additional
evidence, Petitioner testified about three particular evidentiary issues that he believed his trial
counsel should have pursued when preparing for trial: obtaining the dispatch log for the
police officers, obtaining the video from the dashboard camera of the patrol car, and
obtaining the maintenance logs of the patrol car. Petitioner’s concern with all of this
potential evidence stems from his belief that the police officers testified incorrectly about the
location of the traffic stop. According to Petitioner, the traffic stop occurred outside of the
city limits and, therefore, outside of the jurisdiction of the Dyersburg police.

        Petitioner testified that he believed that the dispatch logs would have revealed that the
actual location reported by the officers to the dispatcher was different from the location the
officers testified to at the suppression hearing and at trial. Thus, the dispatch log could have
either provided evidence to invalidate the officers’ jurisdiction to conduct the stop or to


        2
          Petitioner also testified that, prior to the post-conviction hearing, he discovered the State’s notice
of intent to seek enhanced punishment and accordingly chose to waive any allegations in his petitions as to
that issue.

                                                      -3-
impeach their credibility. Petitioner recalled discussing the dispatch logs with his trial
counsel but could not remember the substance of the conversation.

       Petitioner further testified that he asked his trial counsel to obtain copies of the video
from the dashboard camera of the patrol car because it would likewise prove that the officers
stopped Petitioner outside of their city’s jurisdiction and also could have been used for
impeachment. Petitioner acknowledged that trial counsel attempted to obtain this evidence
from the State and was promised a copy of the CD with the video footage. However,
according to Petitioner, trial counsel later reported that the State said that there was no video
footage because the dashboard camera in the patrol car was not operational at the time of the
incident. Petitioner opined that his trial counsel should have then requested copies of the
maintenance logs for the patrol car to verify whether the dashboard camera was actually
inoperable. Petitioner also added that the video from the dashboard camera could have
proven that the tint on the Buick’s windows was too dark for the officers to be able to
visually identify Petitioner as the driver, thereby undermining the justification for the traffic
stop.

        As to the identity of the informant, Petitioner testified that his trial counsel should
have filed a motion to compel the disclosure of the informant’s identity because Petitioner
has a right “to face [his] accuser.” Additionally, Petitioner pointed to inconsistent testimony
as to whether the informant was a “concerned citizen” or a “confidential informant” that
would have been resolved upon discovery of the informant’s identity.

        Regarding the adequacy of trial counsel’s preparation for the trial, Petitioner admitted
that trial counsel met with him at “the prison from 2008 to 2010 anywhere to three to four
times.” Petitioner conceded that the meetings were adequate to prepare a good defense “to
a certain degree,” but Petitioner complained that the resetting of his trial date made it
difficult.

        On cross-examination, Petitioner admitted that he was “not saying that [trial counsel]
didn’t adequately spend enough time with [Petitioner] preparing for trial.” Petitioner stated
that trial counsel informed him that there was a pretty good possibility that Petitioner would
be convicted based on the evidence and urged Petitioner to accept the State’s plea offer.
Petitioner also acknowledged that trial counsel filed a motion to suppress the evidence
challenging the validity of the traffic stop and that trial counsel was well-informed about the
nature of the testimony from all witnesses involved. Petitioner admitted that trial counsel
interviewed passenger Lewis and reported to Petitioner that Lewis should not be called as a
witness because his testimony would hurt Petitioner’s case.

       Petitioner’s trial counsel also testified. Trial counsel stated that he had been practicing


                                               -4-
law for over forty years with between twenty-five and thirty years of criminal law experience.
At the time of the hearing, trial counsel was employed as an assistant public defender, but
at the time of Petitioner’s trial, trial counsel was in private practice and had experience in
several hundred criminal trials.

        Trial counsel testified that he met with Petitioner between ten and twelve times at the
prison while working on this case and that he filed a motion to suppress at Petitioner’s
request, even though he did not believe that there was a reasonable likelihood of success.
Trial counsel also testified that he personally drove the passenger out to the scene of the
traffic stop and car chase to verify the location and details of these events. Trial counsel
recalled that the passenger’s version of events was “virtually identical” to that of Officer
McDowell. As a result, trial counsel affirmed that there was no question in his mind that the
stop occurred within the city limits. Trial counsel also recalled that he researched the
possible jurisdictional issue and concluded that there was no legal infirmity.

       Trial counsel stated his view that the there was nothing unusual about the indictments
because they contained the standard language from the statutes. Trial counsel also stated that
he considered Petitioner’s concerns about the nature of the informant, but ultimately
concluded that it was not relevant because the informant’s tip was not the basis of the stop
and the informant’s testimony could have hurt Petitioner’s case, even if the identity was
known.

       At the end of the evidentiary hearing, the post-conviction court ruled that the
indictments were not defective in any way and that all evidence clearly showed that the
police stop was initiated within the city so that there was no jurisdictional issue.
Additionally, the post-conviction court ruled that Petitioner failed to provide clear and
convincing evidence of deficient performance or prejudice by not having the dispatch logs,
dashboard camera video, maintenance logs, or identity of the informant. The post-conviction
court then dismissed the petition by way of a written order entered on June 17, 2013, and
Petitioner timely appealed.

                                         Analysis
       On appeal, Petitioner argues that the post-conviction court erred in dismissing his
petition based on the ineffective assistance of his trial counsel.3 Specifically, Petitioner



        3
          Because Petitioner has not raised any of the other grounds within his original and amended petitions
on appeal, we will not address them. See Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009
WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26, 2009) (“While the Petitioner raised additional issues in
his petition for post-conviction relief, he has abandoned those issues on appeal.”), perm. app. denied, (Tenn.
Apr. 16, 2010).

                                                     -5-
argues that trial counsel’s performance was deficient because his failure to obtain the
dispatch logs, vehicle maintenance logs, and video recording prevented Petitioner from
presenting valuable evidence at trial that could have (1) impeached the testimony of the
arresting officers, (2) revealed a pre-textual basis for the traffic stop,4 and (3) proved that the
traffic stop occurred outside of the city limits.

       The State argues that the post-conviction court’s dismissal of the petition for post-
conviction relief should be affirmed because trial counsel “diligently obtained all available
evidence” and because Petitioner failed to prove that trial counsel’s performance was
deficient and prejudicial by clear and convincing evidence.

        Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” T.C.A. § 40-30-103. In order to prevail in a claim
for post-conviction relief, a petitioner must prove his factual allegations by clear and
convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn.
1999). “Evidence is clear and convincing when there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d
240, 245 (Tenn. Crim. App. 1998). On appeal, this Court gives deference to the trial court’s
decision on questions concerning witness credibility, the weight and value to be given to
testimony, and the factual issues raised by the evidence. Momon, 18 S.W.3d at 156 (citing
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or
reevaluate the evidence presented below and is bound by the findings of the post-conviction
court unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). However, the post-conviction court’s conclusions of law and application of the law
to the facts are subject to de novo review with no presumption of correctness. Fields v. State,
40 S.W.3d 450, 457 (Tenn. 2001).

       Petitioner alleges that he received ineffective assistance of counsel. Both the Sixth
Amendment to the Constitution of the United States and Article I, section 9 of the Tennessee
Constitution guarantee the right of an accused to the effective assistance of counsel. The test
for ineffective assistance of counsel is a two-prong test: a petitioner “must show first that
counsel’s performance was deficient and second that the deficient performance prejudiced
the defense.” Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002) (citing Strickland v.
Washington, 466 U.S. 668, 690-94 (1984)). “Because a petitioner must establish both prongs


        4
          Petitioner’s brief is the first mention of this argument and no supporting evidence was established
at the evidentiary hearing. Generally, however, an officer’s ulterior motive for conducting a traffic stop is
constitutionally immaterial. State v. Vineyard, 958 S.W.2d 730, 735-36 (Tenn. 1997) (adopting the holding
of Whren v. United States, 517 U.S. 806 (1996)).

                                                    -6-
. . . to prevail on a claim of ineffective assistance of counsel, failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley, 960 S.W.2d at 580.

        The test for deficient performance is “whether counsel’s assistance was reasonable
considering all the circumstances.” Strickland, 466 U.S. at 688. Counsel’s performance is
considered reasonable “if the advice given or the services rendered [were] within the range
of competence demanded of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). To be considered deficient, counsel’s
acts or omissions must fall below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. However, this
Court will not use hindsight to second guess counsel’s tactical decisions unless the choices
were uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). Prejudice is shown where “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694).

        It is undisputed from the facts established at the post-conviction hearing that
Petitioner’s trial counsel was a seasoned criminal defense attorney with approximately thirty
years of criminal law experience, including several hundred criminal trials. Trial counsel
made numerous visits to discuss the case with Petitioner during his incarceration. Petitioner
admits that trial counsel was very knowledgeable about the details of the case and that he
advised Petitioner to accept the State’s plea offer, given the nature and strength of the
incriminating evidence. Trial counsel filed an unsuccessful motion to suppress to alleviate
Petitioner’s concerns about the validity of the traffic stop. Relatedly, trial counsel
investigated Petitioner’s dispute as to the location of the traffic stop, including an interview
and a visit to the scene with passenger Lewis. Lewis wholly confirmed the facts as testified
to by the police officers at the suppression hearing and later at trial. Petitioner admits that
trial counsel sought the dashboard camera video but was eventually informed that no such
video existed because the dashboard camera in the patrol car was inoperable.

        The crux of Petitioner’s ineffective assistance claim is that trial counsel’s failure to
investigate or obtain the dashboard camera video and the dispatch and maintenance logs
constitutes objectively unreasonable professional conduct that likely affected the outcome
of the trial. Petitioner alleges that this additional evidence could have invalidated the search
of his vehicle by either proving that the arrest occurred outside of the officers’ jurisdiction
or that the officers’ lacked reasonable suspicion that he was driving with a suspended license
because the windows of the vehicle were tinted too darkly to permit identification.



                                                -7-
        We acknowledge that trial counsel “has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary.” Id. at 462
(quoting Strickland, 466 U.S. at 691). However, Petitioner did not present any evidence at
the post-conviction hearing that the video or logs actually existed or would have benefitted
Petitioner’s case. Because a petitioner bears the burden of proof in a post-conviction
proceeding, more than “the bare facts of [an] occurrence,” or lack thereof, are required to
substantiate a claim of ineffectiveness based on trial counsel’s failure to investigate or to
obtain allegedly favorable evidence. Denton v. State, 945 S.W.2d 793, 803 (Tenn. Crim.
App. 1996). “If the claim is based on a failure to properly investigate, then the evidence or
witness must be produced so that the post-conviction court can properly evaluate the
evidence or witness.” Derrick Quintero v. State, No. M2005-02959-CCA-R3-PD, 2008 WL
2649637, at *52 (Tenn. Crim. App. July 7, 2008), perm. app. denied, (Tenn. Dec. 8, 2008)
(citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)); see also James Davis
v. State, No. W2006-02708-CCA-R3-PC, 2007 WL 4523464, at *10 (Tenn. Crim. App. Dec.
21, 2007), perm. app. denied, (Tenn. May 5, 2008) (rejecting ineffectiveness claim where
“the petitioner did not present the autopsy report or medical records of the victim at the
evidentiary hearing” while claiming that trial counsel inadequately investigated this
evidence). “It is elementary that neither a trial judge nor an appellate court can speculate or
guess on the question of whether further investigation would have revealed” material
evidence. Black, 794 S.W.2d at 757. Pure speculation is precisely what Petitioner asks us
to accept in this case, but speculation does not equate to clear and convincing evidence.

       Accordingly, the evidence does not preponderate against the post-conviction court’s
conclusion that Petitioner has failed to prove by clear and convincing evidence that there is
a reasonable probability that the outcome of the proceeding would have been different, but
for his trial counsel’s failure to obtain either the dashboard video or the dispatch or
maintenance logs. Because we find no prejudice, we need not address whether trial counsel’s
performance was deficient. See Henley, 960 S.W.2d at 580.

                                         Conclusion

       Upon thorough review of the record, we determine that Petitioner has failed to prove
by clear and convincing evidence that he received ineffective assistance of counsel. We,
therefore, affirm the decision of the post-conviction court.




                                                          ____________________________
                                                          TIMOTHY L. EASTER, JUDGE



                                              -8-
