        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 15, 2015

         MARCUS TERRELL CHURCH v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2009-A-583    J. Randall Wyatt, Jr., Judge


                No. M2014-02342-CCA-R3-PC – Filed August 11, 2015


The petitioner, Marcus Terrell Church, appeals the denial of post-conviction relief from
his 2011 Davidson County Criminal Court jury convictions of aggravated robbery and
especially aggravated kidnapping, claiming that he was denied the effective assistance of
counsel. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Jeffrey T. Daigle, Nashville, Tennessee, for the appellant, Marcus Terrell Church.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Amy Hunter,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              The evidence at the petitioner‟s jury trial revealed that, in the early morning
hours of March 31, 2008, Byron Brandon stopped at Paul‟s Market to get gasoline for his
car, but he changed his mind because the number of people at the market made him feel
uncomfortable. State v. Marcus Terrell Church, No. M2011-01770-CCA-R3-CD, slip
op. at 3 (Tenn. Crim. App., Nashville, June 10, 2013), perm. app. denied (Tenn. Nov. 13,
2013). Before Mr. Brandon could pull out of the parking lot, a man later identified as the
petitioner approached Mr. Brandon‟s “open window with a gun and said, „All right, we
got ya.‟” Id. The petitioner entered the passenger side of Mr. Brandon‟s vehicle and
forced Mr. Brandon at gunpoint to turn over his Automatic Teller Machine (“ATM”) card
and cash. Id. The petitioner demanded that Mr. Brandon drive a short distance and then
instructed Mr. Brandon to pull into an alley. Id. The petitioner then ordered Mr.
Brandon into the trunk of the vehicle. Id. The petitioner drove Mr. Brandon around for
“at least four or five hours.” Id. When Mr. Brandon heard people talking outside the
vehicle, he “pulled an access latch in the tru[n]k and crawled into the backseat” of the
vehicle. Id. The petitioner “ordered him back into the trunk and hit him on the head with
the gun causing him to bleed.” Id. Mr. Brandon complied, and when he again attempted
to pull the access latch, he discovered “the seat had been secured with „shoestrings‟ and
would not fall down.” Id. The petitioner eventually released Mr. Brandon somwehere in
North Nashville. Id. The petitioner walked away, leaving Mr. Brandon‟s vehicle behind
but stealing Mr. Brandon‟s cellular telephone, wallet, driver‟s license, and cash. Id.

              Mr. Brandon drove to his mother‟s house and called 9-1-1. Id., slip op. at
4. After speaking with law enforcement officers, Mr. Brandon was transported to the
hospital by ambulance, and “he received three stitches for a cut on his elbow.” Id. Mr.
Brandon later viewed a photographic lineup and, “within approximately twenty seconds,”
positively identified the petitioner as his assailant, indicating that he was “one-hundred
percent sure of his identification.” Id., slip op. at 4, 8.

               Law enforcement officers conducted fingerprint analysis on Mr. Brandon‟s
vehicle and determined that a right palm print matched that of the petitioner. Id., slip op.
at 6. Everett Brewer, a federal prison inmate who had agreed to cooperate with
authorities by assisting with the arrest and conviction of others as part of his plea
agreement, testified that he had previously been incarcerated with the petitioner and that
the petitioner had discussed his case with Mr. Brewer:

                      [The petitioner] told me that he had been doing powder
              cocaine and then when the cocaine and the money ran out that
              he went to a – I want to say a convenience store gas station
              that he was looking for somebody slipping, he said, that uh
              you know a lot of the little drug dealers were known to come
              to frequent that store and a lot of them had a tendency to pull
              up and get out of their cars and leave the vehicle running and
              left an opportunity for him to jump in the vehicle and take off,
              you know, strip the car for the rims, stereo system, whatever
              he could get out of it and he told me that while he was
              hanging out around the store that he ran in – he encountered
              an individual and he didn‟t tell me, you know, how he got [up
              on] the individual but he told me that he encountered the
              individual and that had took [sic] him at gun point, that they
              had left the store, and that he had took the individual and put
              him in the trunk of his car of the individual‟s car that he had
              taken and that they were riding around – that he was riding
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               around, driving around in the individual‟s car and at some
               point after he had put the individual in the trunk he heard a
               noise or happened to look in the rear-view mirror and noticed
               that the individual had, uh, had come from the trunk, was
               coming through the backseat, that somehow he had managed
               to maneuver the seat so he could come through there.

                      He told me that the pistol that he had laying on his lap
               that he kind of slowed down turned around and pointed the
               gun at the individual and when he wouldn‟t get, when the
               individual kept trying to come back he hit him a couple of
               times in the face or head area and pointed the gun at him
               again and made him get back and the individual retreated
               back into the trunk.

                      Shortly after he said that he pulled over and kind of
               fixed the seat back and then sometime after that that he was
               riding around and picked up a couple of his homeboys is what
               he said and I told him that, I made the statement that he was
               lucky that they didn‟t call his name, you know, say his name
               and said that they were calling him by his nickname which
               was Rell, that they never mentioned his real name, that they
               only said Rell.

                       They had rode around for a while getting high,
               snorting cocaine and eventually he dropped those two
               individuals off and went back to where he had his, in the
               vicinity of where he had his car parked, and said that after he
               had got out of the car that he had dropped the trunk where the
               individual was locked up at and proceeded to walk and got in
               his car and he left the individual.

Id., slip op. at 6-7.

              Detective Christopher Brennan testified that he ran the fingerprint “hit”
from Mr. Brandon‟s vehicle “through our nickname database” based on Mr. Brandon‟s
statement that he had heard the petitioner referred to as “Rell.” Id., slip op. at 8. Based
on Detective Brennan‟s findings, he assembled a photographic lineup which included the
petitioner‟s photograph and from which Mr. Brandon positively identified the petitioner
as the perpetrator of the crimes against him. Id. Investigator Hugh Coleman subpoenaed

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records from the petitioner‟s MySpace account and discovered that the petitioner‟s
account nickname was “Rell.” Id., slip op. at 9.

               Based on this evidence, a Davidson County Criminal Court jury convicted
the petitioner as charged of one count of aggravated robbery and one count of especially
aggravated kidnapping. Id., slip op. at 1. The trial court imposed an effective sentence of
25 years‟ incarceration, and this court affirmed the judgments on direct appeal. Id.

               On March 28, 2014, the petitioner filed, pro se, a timely petition for post-
conviction relief. Following the appointment of counsel and the amendment of the
petition, the post-conviction court held an evidentiary hearing on October 23, 2014.

               The petitioner testified that he recalled a pretrial hearing at which trial
counsel argued against allowing references to a “nickname database” at trial, and he
recalled that the trial court ruled that witnesses “should not refer to this nickname
database being based on arrests and that witnesses should kind of give a generic
description of the database.” The petitioner testified that, at trial, Detective Brennan
stated that he had discovered the petitioner‟s identity through this nickname database and
that Detective Brennan had given a detailed description of the database. The petitioner
stated that trial counsel did not object to the admission of this testimony or move for a
mistrial and that, instead, trial counsel “just let it go.” On cross-examination, the
petitioner admitted that both Investigator Coleman and Mr. Brewer testified at trial that
the petitioner‟s nickname was “Rell,” and the petitioner conceded that his palm print was
discovered on Mr. Brandon‟s vehicle.

               Trial counsel testified that he had filed a motion in limine to exclude any
reference to the nickname database on the basis of hearsay. Upon reviewing the case file,
trial counsel recalled that the trial court overruled his motion but did instruct the State
that witnesses “shouldn‟t dwell or mention on it being something that people‟s names
would get into through arrest.” Trial counsel acknowledged that, at trial, Detective
Brennan testified as follows:

                     I started the investigation by first calling Mr. Brandon
              the night that I received the report, just to go over his side of
              the story and make sure it matched with what was on the
              report in the officer‟s report. The, that evening after I talked
              with him I went by the market to see if there was any
              surveillance video and they don‟t have any surveillance video
              there.



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                     Then two nights later I received an email from the
             latent print section saying that they had received a fingerprint
             hit on the fingerprints that the crime scene officer lifted from
             Mr. Brandon‟s vehicle. I was able to run that name through
             our nickname database that is entered when people are
             arrested, if they have a nickname it goes in a database that we
             keep.

                    The nickname that Mr. Brandon had thought that he
             heard the suspect called while he was in the trunk of the car
             matched the nickname that the [petitioner] had used
             previously at one point in time, the nickname of Rell.

                     At that point I put together a photo line-up and called
             Mr. Brandon on the, I believe it was on the 7th and took that
             out and showed that to him where he positively identified the
             [petitioner] as the person that committed the crime against
             him. At that point I took warrants out on the [petitioner].

Trial counsel admitted that he did not object to Detective Brennan‟s mention of or
explanation of the nickname database and that he did not move for a mistrial or request a
curative instruction. Although trial counsel had no “independent recollection of that
particular moment in the trial,” he testified that it was his “common practice” to weigh
whether something that might be “slightly prejudicial” to his client was worth “draw[ing]
more attention to it by objecting” and allowing the jury to ponder “what is he trying to
keep from me.” Trial counsel continued his explanation as follows:

                    It is the type of thing that they are kind of knowing or
             assuming anyway, so I – I can‟t tell you if this is just
             something that was – that I missed for whatever reasons, but
             many times I am listening and I am on the edge of my seat
             and if it goes by quickly and you hope the jury doesn‟t focus
             on it you don‟t want to be objecting or saying give me a
             special instruction because the special instruction essentially
             reads disregard the portion of the Detective‟s testimony
             where he said, this came from an arrest databank at which
             point everyone in the jury has heard it again and that makes it
             pretty clear to them that is something that maybe it is
             important here, why, why would he want to disregard it and I
             understand that juries are presumed to follow the instructions,
             but I do think it is human nature when it is called to
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              someone‟s attention multiple times or made a big deal of that
              it can be more harmful than – than beneficial to the client.

Trial counsel emphasized that he could not recall “whether [he] actually consciously
engaged in that analysis in this case at that moment” but that he knew that “often times at
trial we are making that exact calculation.”

              With this evidence, the post-conviction court denied relief. Although the
court found that Detective Brennan‟s testimony did violate the trial court‟s order
forbidding any reference to the way in which an individual‟s name appeared in the
database, the court concluded that trial counsel‟s “failure to object or request a mistrial
did not fall outside the range of competence demanded of attorneys in criminal cases.”
The court found that trial counsel‟s decision “was reasonable with respect to the objective
standard used to evaluate attorney performance.” Moreover, the post-conviction court
found that, even if trial counsel‟s performance had been deficient, the petitioner failed to
establish that he had been prejudiced by trial counsel‟s performance, considering that
both Investigator Coleman and Mr. Brewer had testified that the petitioner‟s nickname
was “Rell.”

             On appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, contending that trial counsel was ineffective by failing to object to Detective
Brennan‟s testimony in which he referenced the nickname database.

              We view the petitioner‟s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court‟s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court‟s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
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that counsel‟s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that 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.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not
grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

             Claims of ineffective assistance of counsel are mixed questions of law and
fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d
762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When
reviewing the application of law to the trial court‟s factual findings, our review is de
novo, and the trial court‟s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn.
2000).

               In our view, the record unquestionably supports the post-conviction court‟s
denial of relief. Even though trial counsel could not recall with any specificity the reason
that he did not object to Detective Brennan‟s testimony, trial counsel‟s explanation that it
was his practice to avoid calling unwanted attention to such fleeting testimony is
certainly reasonable, and we will not second-guess this reasonable trial strategy. See
Adkins, 911 S.W.2d at 347. Moreover, the petitioner‟s guilt was overwhelmingly
established by fingerprint analysis, identification by the victim, and a third party‟s
rendition of the petitioner‟s admission of guilt. Thus, the petitioner failed to establish
that he was in any way prejudiced by Detective Brennan‟s testimony. See Strickland, 466
U.S. at 694. As such, we hold the petitioner has failed to prove by clear and convincing
evidence that trial counsel‟s representation was deficient or prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.

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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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