        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 2, 2010

                   TREVOR FORD v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 03-02258    John P. Colton, Jr., Judge




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


The Petitioner, Trevor Ford, appeals as of right from the Shelby County Criminal Court’s
denial of his petition for post-conviction relief. In 2007, the Petitioner was convicted by a
jury of second degree murder and sentenced to twenty-two years. On appeal, he argues that
the denial of his petition was error because he did not receive the effective assistance of
counsel at trial. Specifically, he contends that counsel failed to introduce evidence of
specific violent acts by the victim, failed to secure testimony establishing the victim’s
reputation for violence, and failed to pursue funding for a forensic pathologist. Additionally,
he argues that the refusal to grant funds for an expert at the post-conviction level denies him
fundamental due process and amounts to cruel and unusual punishment. Following our
review of the record and the parties’ briefs, we conclude that the Petitioner has not shown
that he is entitled to relief. The judgment of the post-conviction court is affirmed.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

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

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William L. Gibbons, District Attorney General; and David Zak, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                    Factual Background
       The Petitioner was convicted by a jury of second degree murder, and he was
subsequently sentenced to twenty-two years at 100% as a violent offender. On direct appeal,
this Court affirmed the sufficiency of the convicting evidence supporting the Petitioner’s
conviction. State v. Trevor Ford, No. W2007-00291-CCA-R3-CD, 2008 WL 2219395, at
*2-3 (Tenn. Crim. App., Jackson, May 28, 2008).

      The underlying facts, as established by the evidence presented at the Petitioner’s trial,
were set forth in this Court’s opinion adjudicating the Petitioner’s direct appeal:

              On January 10, 2003, Defendant and a group of friends, including the
       victim, met at a bar in Memphis called Rally Point. The group played pool and
       drank beer. During the evening, the victim and Defendant got into a “tussle”
       and punches were thrown. The management asked them to leave the bar.
       While in the parking lot, the victim and Defendant continued to “have words”
       with each other but were not physically assaulting each other.

              Lisa Cash testified that she saw the altercation inside the bar and what
       happened in the parking lot. Also, in the parking lot, Ms. Cash heard the
       victim threaten to kill Defendant. After the victim and Defendant stopped
       yelling at each other, Defendant got into an SUV with Ms. Cash, her
       boyfriend, Harry Jarrett, and another woman. After a few moments, Defendant
       jumped out of the SUV and got into the car with the victim. Ms. Cash testified
       that about thirty to forty minutes after the victim and Defendant sped off, she
       received a phone call from Defendant. Defendant asked her to come and pick
       him up. She complied and picked him up where Defendant said the victim had
       dropped him off. Defendant apologized to Ms. Cash for his behavior and
       “teared up.”

               Mr. Jarrett testified that he tried to follow the victim and Defendant
       because he was afraid of what the victim might do. However, because the
       victim was driving at a high rate of speed, Mr. Jarrett was unable to keep up
       and lost the car. Mr. Jarrett testified that Defendant called later and that his
       girlfriend went to pick him up and brought him back to Mr. Jarrett’s mother’s
       home. Defendant apologized for almost hitting Mr. Jarrett when he tried to
       break up the fight at the bar and then Defendant started crying.

              Tammie Howard testified that she was in her apartment on University
       Street when she noticed a car pull into the parking lot around two o’clock on
       the morning of January 11, 2003. Ms. Howard testified that she noticed the car
       because she thought it was her aunt and expected her to knock on the door.

                                              -2-
When no one knocked on the door and she heard a car horn beep, Ms. Howard
got out of bed and went to the window. She stated that she saw the front of a
small, gray car and a person sitting inside the car. Ms. Howard then called her
fiancé to tell him to hurry home. Ms. Howard testified that she heard the car
horn blow again, so she went back to the window. She could now see the
person inside the car because the interior light was on. Ms. Howard then saw
the man get out of the car and wipe the exterior and then open the passenger
door. At this point, she stated she saw an arm “flop” out of the car. Ms.
Howard was frightened and again called her fiancé to tell him to come home.
Ms. Howard testified that the person she saw slumped over in the car was
definitely deceased. Ms. Howard identified Defendant from a photo line-up
and in court as the man she observed get out of the car and wipe down the
car’s exterior.

       Eddie Grandberry, Ms. Howard’s fiancé, testified that he spoke to
Defendant in the parking lot when he (Mr. Grandberry) arrived home. Mr.
Grandberry told Defendant he could not park the car in the lot and that he
would have to move it. Mr. Grandberry testified that the Defendant complied
and drove away. Mr. Grandberry also identified Defendant in a photo array
and in court.

       Officer Ken Fox responded to a 911 call about a dead person in a car.
The car was located outside Ms. Howard’s bedroom window and she stated
from her bedroom she could “see straight through the car.” He found the
victim’s body slumped over in the front seat of a gray Ford Focus. Officer Fox
found cash, marijuana, and a CD player in the vehicle.

       Dr. O.C. Smith performed the autopsy and testified that the victim was
shot twice. One of the shots was fatal. Dr. Smith testified that the victim
tested positive for cocaine and his blood alcohol content was .14.

       On January 12, 2003, Sergeants Eric Hutchinson and Timothy Sims
took Defendant’s statement. Sergeant Sims passed away before the trial so
only Sergeant Hutchinson testified. Sergeant Hutchinson testified that
Defendant was cooperative and expressed remorse. Sergeant Hutchinson read
Defendant’s statement into evidence. In his statement, Defendant told the
officers that he was responsible for the victim’s death and that he was trying
to protect himself. Defendant also said that he knew the victim kept a gun
under his seat and he believed that the victim was reaching for it. Defendant
then stated that he and the victim began “tussling and arguing” in the car and

                                      -3-
       that the victim grabbed for Defendant’s gun. During this altercation the gun
       went off twice. Defendant said he jumped out and ran away, but then returned
       to the car and found the victim alive. Defendant stated that he panicked and
       drove the car into another parking lot and called Ms. Cash for a ride.
       Defendant told the officers he was scared to call 911. Defendant ended his
       statement by saying he was sorry and that he was “just trying to protect
       myself.”

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

Id. at *1-2.

        The Petitioner filed a petition for post-conviction relief on August 20, 2008. Counsel
was appointed for the Petitioner, and an amended petition was filed. The Petitioner asserted
that he did not receive the effective assistance of counsel at trial. As specific grounds for
relief, the Petitioner made the following allegations: (1) trial counsel was ineffective for
failing to argue in a motion to suppress hearing that the Petitioner was arrested without
probable cause; (2) trial counsel was ineffective for failing to seek suppression of the
identification testimony of Tammie Howard and Eddie Grandberry; (3) trial counsel was
ineffective for failing to subpoena Tammie Howard’s medical records; (4) trial counsel was
ineffective for failing to retain a forensic pathologist; (5) trial counsel was ineffective for
failing to present evidence of the victim’s past acts of violence to corroborate the defense
theory of self-defense; (6) trial counsel was ineffective for failing to investigate the case and
for failing to call witnesses beneficial to the defense; (7) trial counsel was ineffective for
failing to adequately prepare for trial; (8) trial counsel was ineffective for failing to
adequately research legal issues; and (9) trial counsel was ineffective for failing to
communicate with the Petitioner. In a second amended petition, the Petitioner elaborated on
his previous allegations and, additionally, alleged that trial counsel was ineffective for failing
to argue in a motion to suppress hearing that the Petitioner was subjected to a custodial
interrogation prior to being advised of his Miranda rights.1 At the outset of his post-
conviction hearing, the Petitioner added two additional ineffective assistance claims—that




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

                                                  -4-
trial counsel failed to introduce evidence about the victim’s violent reputation 2 and that trial
counsel failed to adequately cross-examine Tammie Howard.

        A hearing began on July 30, 2009, and continued on August 14, 2009.3 Harry Jarrett
testified that he was good friends with the Petitioner. Mr. Jarrett had met the victim, who he
knew as “Rico,” several times through mutual friends. When asked about the victim’s
reputation, Mr. Jarrett stated, “Thug, gangster, not well thought of at all.” Mr. Jarrett said
that he spoke with trial counsel before the Petitioner’s trial. A picture of the victim was
shown to Mr. Jarrett while on the stand, but he could not identify him.

        On cross-examination, Mr. Jarrett confirmed that he testified at the Petitioner’s trial,
testifying in front of the jury that he feared for the Petitioner’s life when the Petitioner rode
away with the victim. Mr. Jarrett confirmed that he did not see any weapons on the evening
of the fight at the bar. After the shooting, Mr. Jarrett met with the Petitioner who was crying
and who kept apologizing.

        Mr. Jarrett’s wife, Lisa Jarrett, testified next. She also said that she knew the victim
through mutual friends and was familiar with his reputation. Mrs. Jarrett characterized the
victim as “a street thug, a hood rat, somebody that I should not be around.” Mrs. Jarrett
testified that she met with trial counsel prior to the Petitioner’s trial and that she informed
trial counsel of the victim’s bad reputation.

       On cross-examination, Mrs. Jarrett confirmed that she also testified at the Petitioner’s
trial. According to Mrs. Jarrett, she stated in front of the jury the she heard the victim
threaten to kill the Petitioner on the evening in question.



        2
           The State argues that this issue is waived because the Petitioner did not include it in his original
or amended petitions. However, at the outset of the hearing, counsel moved to amend the petition to include
these two new grounds. The State did not object until later in the hearing when the Petitioner began to offer
testimony about the victim’s reputation. The post-conviction court permitted the petition to be amended,
noting that record was already developed on the subject, thus enabling the court to “get a good picture of it.”
Although the post-conviction court permitted the petition to be amended, the court did not directly address
the issue of the victim’s reputation for violence in its order denying relief. Nonetheless, the post-conviction
court did address the victim’s prior acts of violence as possible evidence to corroborate the defense theory
of self-defense in its order. Given that prior acts of violence and a reputation for violence are both types of
character evidence, and because the record is sufficient to address the issue, we decline to consider the issue
waived.
        3
          We will confine our narrative of the post-conviction hearing facts to evidence relevant to the issues
presented on appeal. Much of the testimony at the hearing concerned the Petitioner’s other allegations of
ineffective assistance.

                                                     -5-
        Trial counsel testified that he worked for the Shelby County Public Defender’s Office
and had been a practicing attorney since 1982. He reviewed all of the discovery in the
Petitioner’s case and provided the Petitioner with a copy. He met with the Petitioner
frequently, at least ten visits in the jail and “enumerable conferences off the courtroom in the
conference rooms.” He also stated that he communicated with the Petitioner by mail at least
ten to twelve times and that he provided the Petitioner with any additional information he
received from the State.

       Trial counsel said that he did not seek funds for an independent forensic pathologist
because he saw no reason to as “[t]he cause of death was absolutely clear.” Trial counsel met
with the medical examiner and discussed the victim’s injuries. He did not believe he could
show the requirement of a “particularized need” in order to receive State-funded expert
services; he saw no reason to believe that the medical examiner’s conclusions were incorrect.

        When asked if he made any effort to investigate the victim’s past, trial counsel said
that he obtained the victim’s arrest history, which showed several convictions for driving on
a revoked license and public intoxication. Trial counsel recalled a Class E felony on the
victim’s record—a prohibited weapon offense. Trial counsel was shown an affidavit of
complaint involving an assault by the victim and was informed that the victim pleaded guilty
to the charge; trial counsel was not aware of the conviction.

        When asked if he talked to witnesses about the victim’s past, he stated that he
interviewed the witnesses about what information they had about the facts of the case. He
did not remember Mrs. Jarrett ever calling the victim a “thug” and such was not reflected in
his notes. According to trial counsel, both Jarretts testified at the Petitioner’s trial that they
heard the victim threaten the Petitioner and that they feared for the Petitioner’s life on the
evening in question. Mrs. Jarrett actually “blurted out” that she heard the victim say to the
Petitioner, “I’m going to kill you.” Trial counsel made a strategic decision to rely solely on
the victim’s bad acts on the evening in question, rather than rehash his past behavior in front
of the jury. Trial counsel said that the Petitioner was actually good friends with the victim;
on the evening in question, the two were celebrating their respective birthdays together. Trial
counsel opined that any evidence about the victim’s past acts of violence would not have
changed the outcome of the Petitioner’s trial, noting that the victim suffered two gunshot
wounds, one in the back, which belied the allegation of a “tussle.” Trial counsel did not
remember the Petitioner ever requesting that he interview additional individuals.

       On cross examination, trial counsel confirmed that the defense theory was that the
Petitioner acted in self-defense, that identification was not an issue. Trial counsel
encouraged the Petitioner to take the stand at trial, but the Petitioner chose not to testify.
Although trial counsel knew of the victim’s history, the Petitioner appeared to have no

                                               -6-
knowledge of the victim’s reputation or past violent behavior, and trial counsel was not
“going to create a defense by suggesting it to him.”

        The Petitioner testified that he only met with trial counsel a total of about eight to ten
times during the four years he was incarcerated prior to his trial. He told trial counsel about
the victim—that they grew up together in the same area of town, that he knew of “a little few
incidents in the neighborhood” involving the victim, and that the victim was charged in a
drug case and in a gun case. He asked trial counsel to get the victim’s entire criminal record.
He also asked trial counsel to interview his brother, Demetrius Jones, but trial counsel did
not.

       The Petitioner requested trial counsel to get an independent forensic pathologist “to
go against” the medical examiner. Based upon a “little ordeal” the medical examiner was
going through publicly, the Petitioner assumed that he “would have been a State witness
saying whatever the State wanting [sic] him to say.”

       Demetrius Jones stated that he had known the victim for about ten years from “staying
around the neighborhood.” He witnessed the victim engage in violent behavior on a couple
of occasions. On one such occasion in 2001, the victim and another man started to “wrestle
with each other,” but the other man was stronger than the victim, and the victim became
upset. After leaving the scene of the fight, the victim returned with an assault rifle and
threatened the man who had gone inside his mother’s house. The man never came outside;
the victim laid the assault rifle down and left. Mr. Jones further testified that the victim
drank a lot and became very aggressive when he was under the influence of alcohol and
drugs. According to Mr. Jones, the victim was “not a fighter,” but his “character changed”
once he became intoxicated. Mr. Jones stated that he never met with trial counsel.

        Will Huttig also testified. Mr. Huttig lived in the same neighborhood as the victim
and knew him “through other friends.” On one occasion, Mr. Huttig witnessed the victim
get into a fight. According to Mr. Huttig, the victim would answer his door armed, and the
victim kept an AK-47 on his porch. Mr. Huttig opined that the victim was a violent person.
As for the victim’s reputation, Mr. Huttig said that the victim was a drug dealer and “was a
bad drunk.” He did not speak with trial counsel at any point.

       After reviewing the evidence presented, the post-conviction court denied relief by
written order. The post-conviction court found that the Petitioner did not prove his factual
assertions by clear and convincing evidence and did not establish that trial counsel was
ineffective. This appeal followed.




                                               -7-
                                         Analysis
       The Petitioner essentially raises two challenges in this appeal: one aimed at trial
counsel’s failure to present evidence of the victim’s prior violent acts and of the victim’s
reputation for violence and the other aimed at trial counsel’s failure to retain the services of
an independent forensic pathologist.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

      A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                                               -8-
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

I. Prior Bad Acts and Reputation Testimony
       The Petitioner complains that the post-conviction court erred by determining that trial
counsel was not ineffective for failing to call witnesses to establish the victim’s reputation
for violence and to detail certain prior bad acts by the Petitioner. At the post-conviction
hearing, the Petitioner presented four witnesses who testified to the victim’s violent
reputation and/or who had witnessed prior violent acts by the victim. Trial counsel testified
that he and his staff interviewed witnesses asking them about their knowledge of the case.
Trial counsel said he believed the victim’s actions on the evening of his death, in addition
to the Petitioner’s statement, were sufficient to establish the defense of self-defense. The
Petitioner and the victim were good friends; the Petitioner neither indicated to trial counsel
that he found the victim to be a violent person nor alerted trial counsel to the victim’s past
violent behavior. Trial counsel said that the Petitioner never requested that he interview
additional individuals. Moreover, we agree with the State that the testimony offered by the
Petitioner at the post-conviction hearing did not offer particularly strong evidence of the
victim’s violent nature.

        The post-conviction court found that trial counsel’s decision not to put on evidence
about prior bad acts by the victim or about his violent reputation was a tactical decision not
subject to hindsight review, and that his conduct in that regard was within the standards
expected of defense counsel. In making this decision, the post-conviction court relied upon
trial counsel’s testimony that he believed the bad acts of the victim on the evening of his
death were enough to corroborate the defense theory that the Petitioner was acting in self-
defense and the fact that witnesses at trial testified that the victim threatened to kill the
Petitioner on the evening in question. The post-conviction court obviously accredited trial
counsel’s testimony over that of the Petitioner. This Court may not second-guess a
reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings.

       Also, as noted in the Petitioner’s direct appeal, the fact that there were two gunshots
permitted an inference by the jury that the shooting did not occur as a result of a “tussle.”
Ford, 2008 WL 2219395, at *3. Lastly, Petitioner admitted in his statement to police that the
victim was alive after the shooting and that he did not call 911 or seek other assistance. Id.
Based upon our review, we conclude that the evidence does not preponderate against the

                                              -9-
post-conviction court’s finding that trial counsel’s assistance in this regard was not
ineffective. The Petitioner is not entitled to relief on this issue.

II. Forensic Expert
        A. Trial
        The issue presented by the Petitioner is whether trial counsel’s assistance was
ineffective for failing to request forensic expert assistance to challenge the medical
examiner’s report. Noting trial counsel’s testimony that he did not retain a forensic
pathologist due to the “clearness of the victim’s death,” the post-conviction court again found
trial counsel’s decision to be sound strategy. Trial counsel met with the medical examiner
and was satisfied with his findings. He stated that, even if he had requested an expert, he
would not have been able to demonstrate the “particularized need” necessary to secure State
funding. Moreover, the Petitioner did not present any evidence at the post-conviction hearing
to show what, if any, forensics testimony would have benefitted his defense or, if such
evidence existed, that it would have affected the outcome of the trial. Neither a trial judge
nor an appellate court can speculate as to what a potential witness might have testified.
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We agree with the post-
conviction court that the Petitioner failed to demonstrate trial counsel was ineffective.

       B. Post-conviction proceedings
       Post-conviction counsel attempted to secure funds for a forensic pathologist at the
post-conviction stage in order to prove the Petitioner’s ineffectiveness claim. The post-
conviction court denied the motion. On appeal, the Petitioner contends that the post-
conviction court erred in denying his request for expert funds. He submits that the denial of
funding violated his right to due process and constituted cruel and unusual punishment.

       The Petitioner acknowledges that his argument is contrary to the law in Tennessee.
The Tennessee Supreme Court Rules clearly prohibit the authorization of expert services in
non-capital post-conviction proceedings. Tenn. Sup. Ct. R. 13 § 5(a)(2); see also Tenn. Code
Ann. § 40-17-207; Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995). Further,
Petitioner’s argument, that despite well-settled law, a denial of expert funding denies him
fundamental due process rights, has already been addressed by a panel of this Court. In
Asata Lowe v. State, No. E2006-02028-CCA-R3-PC, 2008 WL 631169, at *20-21 (Tenn.
Crim. App., Knoxville, Mar. 10, 2008), this Court noted the prohibition for expert services
in non-capital post-conviction proceedings and determined that for the Court to analyze the
petitioner’s claim, she “was required at a minimum to make a threshold showing that such
an expert exists. This showing would demonstrate that the claim that an expert [would have
helped the defense was] more than mere speculation. We cannot conclude that the Due
Process Clause was violated based on mere conjecture.” Id. at *21. The same analysis
applies herein. Other than statements of post-conviction counsel and the assertions of the

                                             -10-
Petitioner, there is no proof in the record that any expert existed whose testimony would have
refuted the medical examiner’s report. Accordingly, the post-conviction court properly
denied the request for an expert. See also Wayne Lydell Holt v. State, No. M2009-00933-
CCA-R3-PC, 2010 WL 2867185, at *6 (Tenn. Crim. App., Nashville, July 22, 2010).

                                         Conclusion
       Based upon the foregoing reasoning and authorities, we conclude that the Petitioner
has not shown he is entitled to relief on grounds of ineffective assistance of counsel. The
judgment of Shelby County Criminal Court denying post-conviction relief is affirmed.




                                                    _________________________________
                                                    DAVID H. WELLES, JUDGE




                                             -11-
