         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 6, 2008

                  ROBERT B. CLARK v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                            No. 01-05153   Lee V. Coffee, Judge



                      No. W2007-01440-CCA-R3-PC - Filed July 2, 2008


The Appellant, Robert B. Clark, appeals the Shelby County Criminal Court’s denial of his petition
for post-conviction relief. Following a jury trial, Clark was convicted of second degree murder, a
Class A felony, and sentenced to serve twenty-four years, as a violent offender, in the Department
of Correction. On appeal, Clark contends that he was denied his Sixth Amendment right to the
effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by: (1)
failing to investigate and pursue all possible defenses; and (2) failing to seek pre-trial suppression
of his statement to the police. After review of the record before us, we find no error and affirm the
denial of post-conviction relief.

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

DAVID G. HAYES, SR.J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT , JR., JJ., joined.

R. Andrew Hutchinson (on appeal); Paul Guibao and R. Andrew Hutchinson (at trial), Memphis,
Tennessee, for the Appellant, Robert B. Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Carrie Shelton, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                          Factual Background and Procedural History

        The relevant underlying facts of the Appellant’s case, as established on direct appeal to this
court, are as follows:

             During the early morning hours of July 18, 2000, the [Appellant’s] fiancee,
       Kimberly Palmore, was found severely beaten at the Cleaborne Temple homeless
shelter in Memphis where she and the [Appellant] had been residing. The victim was
transported by ambulance to the Regional Medical Center (“The Med”) where she
subsequently died on July 26, 2000, as a result of the injuries inflicted upon her.

       ....

         Bobby Lee Marshall, the chief administrator at Cleaborne Temple, testified
the victim had been living at the Temple’s homeless shelter for about a month and
that the [Appellant] had arrived at about the same time. During the early morning
hours of July 18, 2000, Marshall, along with John Blazer and Keith Burrell,
conducted a security check in the chapel where about a dozen homeless men and
women were sleeping. When they entered the chapel, the [Appellant], who was
nude, jumped up from between some church pews and began apologizing to
Marshall, who then heard the victim groan but did not realize she was injured.
Believing that the [Appellant] and the victim were having “like an affair, or
something,” Marshall told the [Appellant] to gather his belongings and leave the
facility. As Marshall checked on the victim, the [Appellant] disappeared “in a split
second.” Marshall found the victim gasping for breath, and he and two others picked
up the mattress she was lying on and carried her to the ladies’ lounge where it was
cooler. . . .

        Sheila Saunders testified that she was staying at the Cleaborne Temple shelter
on July 18, 2000, and had met the victim there. After being awakened by someone
she identified as “Country,” Saunders went to the ladies’ lounge where she saw the
victim lying on a mattress:

        Her shirt was pulled up over her head. Her bra was pulled up here. Her
[breast] was showing. Her pants and shorts were at the bottom of her ankles. And
blood coming out of the side of her mouth. I notice[d] she had a hold [sic] on the
side of her head.

       An ambulance arrived, and Saunders accompanied the victim to The Med.

       The [Appellant], wearing a torn T-shirt, came to The Med and asked Saunders
where the victim was. Saunders told the [Appellant] that he was in trouble because
he had “raped [the victim], . . . beat her up and choked her,” to which he replied:

        Hey, I didn’t do all that, man, I didn’t rape my own lady . . . . I was between
the benches fucking and she called out Keith’s name and I slapped her and she got
loud at me and I slapped her again and she got louder and I put my hand around her
and I choked her.




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       . . . The two . . . went outside to talk where the [Appellant] pulled a gun from
underneath his shirt and said, “Keith and John, man, was fucking my old lady, man,
I’m going to kick Dr. Marshall’s ass. . . . I got this . . . for that little nigger fuckin’
my gal.” . . .

         Dr. Cynthia Gardner, an assistant medical examiner for Shelby County,
testified that she performed the autopsy on the victim on July 26, 2000. The victim’s
cause of death was “complications of blunt trauma. The complication was that she
developed adult respiratory distress syndrome and it was [a] complication of blunt
trauma to both the head and the neck.” Dr. Gardner also found a hemorrhage in the
deep tissues of the victim’s neck which was consistent with strangulation. . . . All
of the victim’s autopsy findings “occurred as a result of the blunt trauma to the head
and to the neck.” Dr. Gardner opined that the deep hemorrhaging was caused by a
substantial force to the head and could have been produced by a “very forceful blow
with a closed fist.” . . .

        Sergeant James L. Fitzpatrick of the Memphis Police Department Homicide
Bureau testified that he investigated the victim’s death and interviewed the
[Appellant] on July 28, 2000, after advising him of his Miranda rights. The
[Appellant] signed a waiver of rights form after indicating that he understood his
rights and then gave a statement which was reduced to writing and signed and
initialed by the [Appellant]. Sergeant Fitzpatrick was then permitted to read aloud
the [Appellant’s] statement. The [Appellant] said he had known the victim for
almost two years, and they were to be married on August 29, 2000. The [Appellant]
admitted he and the victim had an altercation in the chapel on July 18, 2000, because
“they were ‘pimpin’ her.” . . .

        ....

        The [Appellant], testifying as the sole defense witness, said that he and the
victim had lived together for about a year and a half before coming to Memphis from
Blytheville, Arkansas, in February 2000 and were engaged to be married on August
29, 2000. . . .

        As to what occurred on July 18, 2000, the [Appellant] testified that he went
to where the victim was sleeping in the chapel to “comfort her.” The victim told him
that Bobby Marshall and John Brasley had raped her. Hearing this, the [Appellant]
became upset and asked the victim for details. When the victim hesitated to respond,
the [Appellant] “hit her, two or three, maybe four times. But, only on the right side
of her jaw.” He next took his belt and “wrapped it around her neck, just a couple of
seconds.” The victim then began telling him what had been happening to her at the
shelter. After hearing a noise, the [Appellant], who was nude, told the victim to
remain where she was and then got up to walk around. He encountered Dr. Marshall


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        and had a brief conversation with him. The [Appellant] returned to where the victim
        was, got his “short pants,” and told the victim he would be right back. He then went
        upstairs, packed his bags, and left the shelter. He went “[d]own the street to an open
        field,” put his bag behind a bush, and waited for about an hour before returning to the
        shelter and waiting for the victim for about thirty minutes.

State v. Robert Clark, No. W2003-00940-CCA-R3-CD (Tenn. Crim. App. at Jackson, June 18,
2003), perm. app. denied, (Tenn. Oct. 27, 2003). On December 14, 2001, following a trial by jury,
the Appellant was convicted of second degree murder, a Class A felony, and sentenced to twenty-
four years in the Department of Correction, to be served at 100 percent as a violent offender. Id.
After his conviction, the Appellant appealed to this court, challenging the sufficiency of the evidence
and a jury instruction regarding the definitions of the mental states pertaining to second degree
murder. Id. Following review, a panel of this court affirmed the conviction. Id.

         On October 1, 2004, the Appellant filed a pro se petition for post-conviction relief alleging,
among other grounds, that he was denied the effective assistance of counsel in violation of his Sixth
Amendment right. Following the appointment of counsel, an amended petition for post-conviction
relief was filed on June 24, 2005. A hearing was held on May 11, 2007, at which only the Appellant
and trial counsel testified. The Appellant testified that trial counsel had failed to adequately meet
with him, had failed to properly prepare an available defense, and had failed to challenge the
admission of his statement to police. According to the Appellant, trial counsel only met with him
in jail on two occasions and only briefly spoke with the Appellant at his court appearances. The
Appellant further testified that he informed trial counsel that his statement to the police was false and
was obtained by coercion. He related that, although he informed trial counsel that his statement was
coerced, no suppression motion was filed prior to trial. He acknowledged, however, that a motion
was filed and a suppression hearing was held following the State’s proof, with the motion being
denied. Moreover, the Appellant gave very confusing and often conflicting testimony concerning
his decision to testify at trial. According to the Appellant, trial counsel failed to properly investigate
and present evidence in support of a possible theory of defense, that being an intervening cause of
death. Specifically, he asserted that Bobby Marshall or someone at Cleaborne Temple could have
inflicted further injury on the victim after the Appellant left the Temple or that substandard care by
medical professionals at The Med had actually caused the victim’s death. The Appellant alleged that
trial counsel had failed to find witnesses who were at Cleaborne Temple who could have possibly
seen something after the Appellant’s departure from the scene. He did, however, acknowledge that
trial counsel had obtained the services of an investigator to locate potential defense witnesses. He
further faulted trial counsel for failing to introduce evidence regarding charges which were pending
at the time against Bobby Marshall for an alleged rape, especially in light of Marshall’s inconsistent
statements regarding the location where the victim was found. Finally, the Appellant asserted that
trial counsel should have spoken with an independent medical expert regarding the possibility of an
intervening cause of death, rather than relying upon his discussion with the county medical examiner.

       In contradiction to the Appellant’s testimony, trial counsel stated that he met with the
Appellant numerous times and discussed the facts of the case with him at length. Trial counsel


                                                   -4-
testified that it was undisputed that the Appellant had confessed to striking and strangling the victim.
However, the Appellant insisted that he had not caused the victim’s death. The Appellant informed
trial counsel that it was possible someone else, possibly Bobby Marshall, at Cleaborne Temple had
assaulted the victim a second time after the Appellant left or that her death had resulted from the
negligent treatment of the attending physicians at The Med. In response, trial counsel stated that he
had an investigator go to Cleaborne Temple in search of possible witnesses. The investigator also
checked utility records and other leads provided by the Appellant, but the investigator was
unsuccessful in locating any potential witnesses. Moreover, trial counsel stated that he subpoenaed
the victim’s medical records from The Med and reviewed those records with Dr. Gardner, who
performed the autopsy on the victim. Based upon the medical examiner’s statements, trial counsel
did not believe it necessary to conduct any further investigation into the cause of death of the victim
or to retain an independent expert. Trial counsel further stated that the Appellant’s assertions with
regard to Bobby Marshall were nebulous at best and that Marshall had refused to speak with the
investigator. Regardless, trial counsel stated that Marshall had no prior convictions which could be
used for impeachment purposes and that any pending allegations of misconduct at Cleaborne Temple
were not relevant in the Appellant’s trial. Finally, with regard to the Appellant’s statement to the
police, trial counsel testified that the Appellant failed to inform him that the statement was coerced
until immediately prior to trial. Moreover, although a motion to suppress was heard during the trial
proceeding, trial counsel stated that it was beneficial to allow the Appellant’s statement into
evidence, as it contained certain statements which aided the Appellant’s defense. Finally, trial
counsel testified that he tried to follow every lead and to investigate all possible defenses, although
he eventually defended upon the ground that the crime was, at best, manslaughter, based upon the
Appellant’s statement that the two had engaged in a heated argument prior to the homicide.

       At the conclusion of the hearing, the Appellant’s petition for post-conviction relief was
denied. This timely appeal followed.

                                               Analysis

         On appeal, the Appellant argues that the post-conviction court erred in finding that he was
not denied his Sixth Amendment right to the effective assistance of counsel. To succeed on a
challenge of ineffective assistance of counsel, the Appellant bears the burden of establishing the
allegations set forth in his petition by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006).
The Appellant must demonstrate that counsel’s representation fell below the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), a petitioner must
establish (1) deficient performance and (2) prejudice resulting from the deficiency. The petitioner
is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and
cannot criticize 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). This deference to the
tactical decisions of trial counsel is dependent upon a showing that the decisions were made after
adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



                                                  -5-
       It is unnecessary for a court to address deficiency and prejudice in any particular order,
or even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court's findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law, are reviewed under a purely de novo
standard with no presumption that the post-conviction court's findings are correct. Id.

        On appeal, the Appellant argues that the evidence presented at the post-conviction hearing
preponderates against the court’s finding that trial counsel’s performance was not below the standard
set forth in Baxter v. Rose with regard to the investigation of the case and possible theories of
defense. Specifically, the Appellant “maintains his contention that there was an intervening cause
of death,” which should have been investigated. He asserts that “the intervening cause of death was
either actions taken by Bobby Marshall or medical malpractice.” According to the Appellant, if
“these theories [had] been proper[l]y investigated and fully litigated at trial [t]he results of the trial
may very well have been different.” Additionally, the Appellant contends that trial counsel was
ineffective by failing to file a motion to suppress the Appellant’s statement to police until well after
the trial was underway. He contends that this error “affecte[ed] the very foundation of [the
Appellant’s] trial strategy[,] [and] [t]he decision on whether to testify on his . . . own behalf.”

       In its written order denying post-conviction relief, the court found, in relevant part, as
follows:
               The [Appellant’s] complaint that counsel erred by failing to meet adequately
       with [the Appellant] prior to trial and failed to adequately interview the [Appellant]
       regarding possible defenses is unfounded. . . .

               . . . This Court resolves issues of credibility against the [Appellant] and
        accredits the testimony of trial counsel. . . . This [Appellant] is not worthy of belief.

               The [Appellant] does not specify what other defenses counsel should have
        pursued. The [Appellant] testified that he wanted trial counsel to “seek the truth and
        that someone might have come up with the truth”. The [Appellant] essentially
        wanted trial counsel to prove that “it’s a possibility that someone else did this”. Trial
        counsel testified that the [Appellant] rejected all offers and insisted that the
        [Appellant] did not kill anyone. Trial counsel testified that the only defense was


                                                   -6-
Voluntary Manslaughter as the [Appellant] claimed that the victim had angered the
[Appellant] during sex by allegedly admitting to having sexual relations with other
men. The [Appellant’s] theory was either someone else killed the victim at
Cleaborne Temple or that medical treatment was inadequate. Trial counsel pursued
all angles but correctly concluded that the [Appellant’s] theories were mere
speculation.

         [With regard to the motion to suppress, it] was not heard before trial as the
[Appellant] never complained about an involuntary statement to trial counsel. Trial
counsel testified that the [Appellant] raised an involuntary statement shortly before
trial. Trial counsel saw no reason to file any additional motions as trial counsel “did
not want to tip his hand to the state”. The trial court heard and denied the
[Appellant’s] motion to suppress. The [Appellant] admitted at his evidentiary
hearing that he lied to the trial court during sentencing and during the suppression
hearing. The [Appellant] also lied in his evidentiary hearing. The [Appellant]
testified under oath that he decided not to testify at trial after the trial court denied his
motion to suppress. The trial record shows clearly that the [Appellant] lied again as
the [Appellant] did in fact testify at trial.

        ....

        . . . [With regard to possible defenses, trial counsel] testified that the
[Appellant’s] statements were “nebulous” and that the “[Appellant] was sending us
on fishing expeditions and we went fishing”. The [Appellant] wanted trial counsel
to “go out and see what you could find”. As testified [to] at the evidentiary hearing,
trial counsel and his investigator did the best that they could.

        ....

        [With regard to trial counsel’s decision not to seek independent review of the
victim’s medical records,] [t]rial counsel testified that he did not see a particularized
need to ask for an expert witness to review the findings of the Medical Examiner’s
Office. The [Appellant’s] theory of defense was wholly speculative; someone else
could have beaten the victim after the [Appellant] was evicted from the Temple or
that the victim received negligent medical treatment. Trial Counsel testified that he
reviewed the medical records with Dr. Cynthia Gardner and that she was very
helpful. Trial counsel testified further that he believes that the Assistant Medical
Examiner is an independent and objective medical expert whose findings were not
all one sided. Trial counsel insisted that there were no medical factors that indicated
that the victim received negligent medical care. . . .

     Further, [the Appellant] had admitted that he struck and choked the victim.
Pneumonia and liver infection contributed to the cause of death of this victim and


                                            -7-
       were related to the injuries that the [Appellant] admitted committing against the
       victim. Dr. Gardner saw nothing in the victim’s medical records that would have
       indicated that the victim received inadequate medical treatment. The [Appellant] has
       failed to produce at his evidentiary hearing any medical proof that contradicts the
       findings and testimony of Dr. Gardner. Therefore, this issue is also without merit.

        Following review, we find nothing in the record which preponderates against the post-
conviction court’s extensive findings. Clearly, the court accredited the testimony of trial counsel and
wholly discounted the testimony of the Appellant, whom he found to be untruthful on multiple
occasions. As conceded by the Appellant, issues of credibility of witnesses and the weight to be
given their testimony are to be resolved by the trier of fact. See Henley, 960 S.W.2d at 579. It is not
the province of this court to reweigh such determinations.

         When a petitioner in a post-conviction proceeding alleges that trial counsel was deficient in
failing to pursue a motion to suppress or perform in a specific manner, it is the petitioner’s burden
to establish by clear and convincing evidence (1) the motion to suppress would have been granted
and that the petitioner’s allegation of deficient performance has merit; and (2) that had trial counsel
performed as suggested, there is a reasonable likelihood the result would have been different.
Clearly, counsel cannot be considered ineffective for failing to pursue a motion that is without merit.
In this case, the Appellant has failed in both respects with regard to his required burden of proof.

                                          CONCLUSION

         Based upon the foregoing, the Shelby County Criminal Court’s denial of post-conviction
relief is affirmed.


                                                       ___________________________________
                                                       DAVID G. HAYES, SENIOR JUDGE




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