         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 14, 2009

                 GEORGE HAMPTON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                        No. 03-01711    John T. Fowlkes, Jr., Judge



                    No. W2008-00996-CCA-R3-PC - Filed August 21, 2009


The petitioner, George Hampton, appeals the denial of his petition for post-conviction relief, arguing
that his trial counsel provided ineffective assistance by failing to properly investigate and prepare
the case for trial. Following our review, we affirm the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Eric Christensen, Memphis, Tennessee, for the appellant, George Hampton.

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

                                             OPINION

                                              FACTS

        In 2004, the petitioner was convicted by a Shelby County jury in two separate cases of one
count of especially aggravated robbery, three counts of aggravated robbery, and one count of
aggravated assault. The trial court subsequently sentenced him as a Range III, persistent offender
to an effective sentence of one hundred and sixty-five years in the Department of Correction. We
affirmed his convictions and sentences on direct appeal, and our supreme court denied his
application for permission to appeal. See State v. George Hampton, No. W2004-01248-CCA-R3-
CD, 2005 WL 1651659, at *1 (Tenn. Crim. App. July 14, 2005), perm. to appeal denied (Tenn. Dec.
27, 2005).

        Our direct appeal opinion reveals that the petitioner’s convictions stemmed from his
participation in the July 30, 2002, armed robberies in east Memphis of an elderly physician, Dr.
Charles White, and three newspaper salesmen, John Norris, Henry Skelton, and Mark Mears. Id. at
**1-2. The robbery of Dr. White occurred at approximately 6:15 a.m. on July 30, 2002, outside the
Memphis Surgery Center, and the robberies of the other men occurred a few moments later in the
parking lot of a nearby Steak and Ale Restaurant. Id. Several eyewitnesses identified the petitioner
and he gave a statement to police admitting his participation in the crimes. Id. at **2-3. The
petitioner also gave statements admitting his participation in five additional armed robberies that
occurred that same morning. Prior to trial, the judge ruled that the State could not introduce
evidence of those additional robberies “but cautioned [the petitioner] that the other statements might
be admissible if he testified inconsistently with his prior statements or mentioned the other robberies
during his testimony.” Id. at *3. During his testimony, the petitioner brought up one of the other
robberies to argue that he could not have committed the offenses in the time frame alleged. Id.
Consequently, on cross-examination the State was allowed to introduce his statements admitting to
his participation in the July 30, 2002, robberies of Kennedy Anthony at 12:25 a.m., Rodney Peterson
at 2:15 a.m., Ray Penno at 2:50 a.m., Donald Allen at 4:20 a.m., and Charles Liberto at 6:12 a.m.
Id.

        On September 12, 2006, the petitioner filed a pro se petition for post-conviction relief in
which he raised claims of ineffective assistance of trial and appellate counsel. With respect to his
claim of ineffective assistance of trial counsel, he alleged that counsel was ineffective for, among
other things, failing to adequately confer with him prior to trial; failing to properly investigate and
prepare the case for trial, which included his failure to present alibi witnesses; and failing to
effectively cross-examine the State’s witnesses, particularly with respect to their identifications of
the petitioner. Post-conviction counsel was appointed to represent the petitioner, and an evidentiary
hearing was held on April 25, 2008.

         The petitioner began his testimony at the hearing by complaining that trial counsel, who
“wasn’t seeing eye to eye” with him, never really talked to him about the case. He claimed that
counsel failed to provide him with copies of discovery, to discuss the evidence against him, or to
inform him of his possible sentences if convicted of all the offenses. He also criticized counsel for
his failure to call Dr. White, the victim of the especially aggravated robbery, as a witness at trial and
for his failure to cross-examine Dr. White’s wife. According to the petitioner, Dr. White’s testimony
would have revealed to the jury that he was unable to identify the petitioner and cross-examination
of Mrs. White could have highlighted the inconsistency between her description of Dr. White’s
intermittent mental confusion and the fact that he was still able to drive his vehicle.

        The petitioner further complained that trial counsel waited too long to hold the hearing on
his motion to suppress his statements to police. He said that a police officer testified on behalf of
the State at that hearing, but the trial court “held back” all the evidence that the petitioner wanted
to present and trial counsel “just s[a]t there” without objecting. The petitioner also expressed his
unhappiness at trial counsel’s failure to have the various witnesses’ pretrial identifications
suppressed, implying in somewhat vague testimony that counsel was remiss in not presenting
sufficient evidence and not strenuously arguing the motion: “Yeah, but [the motion to suppress the
identifications] was brief. It wasn’t -- it was like he was turning everything down whatever we was
trying to do it but it was -- it wasn’t.”



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        The petitioner testified that he had wanted counsel to pursue a defense based on mistaken
witness identification, but counsel refused to do so. Counsel also failed to act on information he
gave him about alibi witnesses. The petitioner said that he told counsel that his girlfriend, Karen
Burns, and an elderly man named “Mr. Charlie” could provide him with alibis, but counsel did not
contact anyone. The petitioner stated that his brother, Mario Hampton, could have also provided an
alibi, but then admitted that he never told counsel about him. He conceded that counsel did
investigate the backgrounds of the State’s witnesses but found nothing with which to impeach their
credibility.

         The petitioner testified that he had not wanted the two particular cases that were consolidated
for trial tried together. He indicated, however, that he had wanted a different robbery consolidated
with one of the cases at bar in order to show the impossibility of his having committed the offenses
in the time frame alleged:

              A.      I wanted to be tried separate. Excuse me. It was a 6:15 robbery that
       happened and it was a 6:16 and 6:20. I wanted . . . to go to trial separate on the 6:15
       because the 6:15 they say I -- well, the 6:15 happened in a minute of 6:16 and so –

               Q.      We’re talking about times. Was that 6:15 a.m. in the morning?

               A.      Uh-huh. Yeah, a.m. in the morning. And so I was . . . trying to deal
       about the time frame of the robbery. So I wanted to have them . . . separated. So at
       the time of that right there I think all of them -- hold on -- special and the mens
       (indiscernible) they was together. The 6:15 robbery, they didn’t even bring it up. I
       had to get on the stand and bring it up.

         The petitioner concluded his direct examination testimony by reiterating that trial counsel
completely failed to talk to him about the case, stating that he had proof that counsel came to see him
in the jail only twice during the two years he represented him. The petitioner complained that there
were racist elements to his prosecution because his “charges [were] on white people[.]” He said that
he talked to counsel about it and gave him questions he wanted him to ask the witnesses, but counsel
refused to ask them. Finally, he complained that “it was wrong the way that [trial counsel] let the
judge abuse his power, his authority to object to everything [the petitioner] tried to present to the
jury.”

        On cross-examination, the petitioner acknowledged that he and counsel did in fact talk about
the case but said that it “wasn’t like [they were] supposed to.” He further acknowledged that counsel
provided him with some discovery, but complained that he did not give him everything that he
wanted, such as a copy of the “True Bill of Indictment.”

        Trial counsel testified that he had been licensed to practice law for twenty-six years, was
employed with the public defender’s office, and had been assigned to represent the petitioner within
days of his arrest. He said he would take the petitioner at his word as to the number of visits the jail
had recorded from him but that, in his experience, the jail’s printouts were “woefully inaccurate.”
He stated that he was not the best record keeper in the world but thought he had references to at least

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three jail visits in his file. In addition, he met with the petitioner on the eight or nine report dates,
as well as at the time of the consolidation and 404(b) hearing. He testified that he provided the
petitioner with copies of all the discovery in the case, which included the indictment, the petitioner’s
statements, the witness statements, and the statement of the petitioner’s codefendant.

        Trial counsel testified that the two eyewitnesses to Dr. White’s robbery testified that Dr.
White stumbled and fell facedown after having a sawed-off shotgun placed on him during the
robbery. He said that one of the witnesses, who was approximately twelve feet away, also described
having heard the bones in Dr. White’s face crunch when he hit the pavement. Trial counsel stated
that Dr. White was in a coma for “quite some time” and was never able to make a statement, even
to the police. It, therefore, never occurred to counsel to call him as a witness at trial. In counsel’s
opinion, having Dr. White try to “wobble up to the witness stand and then hardly be able to speak”
would have done nothing more than emphasize his injuries to the jury. Trial counsel also believed
that cross-examining Dr. White’s wife, who testified about her husband’s injuries, would have only
served to highlight those injuries.

        Trial counsel did not recall having ever heard the names of either of the alibi witnesses
mentioned by the petitioner. He testified that rather than mentioning any alibi, the petitioner
consistently told him that his statements to the police were true. Despite that, the petitioner was
“fixated” on a desire to try three of the robberies together with the idea that the State would be
unable to prove that he could have committed all three in the approximate thirty-minute time frame
they were alleged to have occurred. Trial counsel testified that he explained to the petitioner, first,
that the robbery times were only approximations and, second, that he had driven the route himself
and found that the impossibility defense would not work:

        And I told him, you know, it’s like the Ted Bundy defense, you know, I did it but
        they can’t prove I did it. And . . . these approximated times would be a silly reason
        to take it to trial because on three occasions, including this morning, I drove that very
        route. . . . It took me nine minutes and it’s 3.3 miles.

         Trial counsel testified that he saw nothing suggestive about the identification procedures.
He said he believed that the motions to suppress them were “about as close to frivolous” as he could
possibly get, but nevertheless filed them at the petitioner’s request. In his opinion, the trial court
conducted a full hearing and the outcome would not have been any different had the hearing been
held earlier than the eve of trial. He said that he strongly advised the petitioner against testifying in
his own defense, but the petitioner was adamant about doing so. Because the petitioner told him that
his police statements were true and yet refused to tell him what he was going to say on the stand, he
moved to withdraw from the case, advising the trial court that he was in an ethical dilemma. Trial
counsel testified that his motion to withdraw was denied, as was his request for permission to file
an interlocutory appeal to this court. He, therefore, saw no other option than to have the petitioner
testify in a narrative fashion at trial: “So -- and again, as I understood the rules then, I had to ask for
what would otherwise be an objectionable narrative and . . . one of the first words out of his mouth
was about one of the cases not at trial and he didn’t do very well.”



                                                   -4-
        Appellate counsel testified that out of the three hundred appeals she had handled, the
petitioner’s was one of less than five in which she did not challenge the sufficiency of the evidence.
She described the evidence against the petitioner as “staggering” and “just overwhelming,” pointing
out that there were five witness identifications as well as a witness who recorded the tag number of
the petitioner’s vehicle. She said she did not raise any issues with respect to the suppression of the
petitioner’s statements or the pretrial identifications because in her opinion those were losing issues.

        At the conclusion of the hearing, the post-conviction court orally denied the petition, finding
that the petitioner had not met his burden of demonstrating either a deficiency in counsel’s
representation or prejudice to his case. The court entered its written order containing detailed
findings of fact and conclusions of law on December 1, 2008.

                                             ANALYSIS

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
same standard for determining ineffective assistance of counsel that is applied in federal cases also
applies in Tennessee). The Strickland standard is a two-prong test:

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

466 U.S. at 687, 104 S. Ct. at 2064.

       The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.

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at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

         The petitioner contends on appeal that trial counsel provided ineffective assistance by failing
to adequately communicate with him, not interviewing Dr. White, not cross-examining Mrs. White,
making no effort to direct his testimony away from the other alleged crimes, and failing to timely
file the motions to suppress the statements and the witness identifications.

        In its order denying relief, the post-conviction court found, among other things, that the
petitioner had presented nothing other than his own bare allegations in support of his claim that
counsel was deficient for failing to adequately communicate with the petitioner, investigate the case,
or file the various pretrial motions. With respect to the petitioner’s claim of inadequate
communication, the court specifically noted that the petitioner’s own evidentiary hearing testimony
was full of references to his conversations with counsel. The post-conviction court accredited the
testimony of trial counsel that the petitioner never mentioned any alibi witnesses to him and
observed that the petitioner failed to present these alleged alibi witnesses at the evidentiary hearing.
The court further found that counsel was not deficient for failing to interview or call Dr. White as
a witness, failing to cross-examine Mrs. White, or failing to directly examine the petitioner,
concluding that counsel had valid grounds for his belief that the petitioner would not testify
truthfully and had made sound strategic decisions not to call Dr. White as a witness or to cross-
examine his wife.

        The record fully supports the findings and conclusions of the post-conviction court.
Although the petitioner repeatedly testified that trial counsel failed to communicate with him, it
became clear during the course of his evidentiary hearing testimony that his real complaint was that
counsel did not agree with or employ the tactics and strategy that he wanted. Trial counsel’s
testimony established that he met with the petitioner numerous times to discuss the evidence against
the petitioner and the potential defense strategies. Trial counsel also provided the petitioner with
copies of all the discovery in the case, which included the petitioner’s various statements to police.
Trial counsel explained to the petitioner why an impossibility defense would not work and pointed
out to him the dangers of testifying in his own defense, but was unable to dissuade him from doing
so. Trial counsel offered a sound rationale for not calling Dr. White as a witness or cross-examining
his wife about his injuries, testifying that he believed both courses of action would have hurt, rather
than helped, the petitioner’s case. He offered an equally valid reason for not directing the
petitioner’s testimony, explaining that the petitioner, who had consistently told him that his
statements to police were true, refused to tell him how he planned to testify at trial. Because counsel
had no idea of what the petitioner would say and did not want to present perjured testimony, he
allowed the petitioner to present his testimony in a narrative fashion. In sum, the petitioner has not
met his burden of showing that trial counsel, an experienced defense attorney faced with a very
difficult case in which the State’s evidence against his client was overwhelming, was in any way
deficient in his representation or that he was prejudiced as a result of any alleged deficiency.

                                           CONCLUSION

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        We conclude that the petitioner has not met his burden of showing that he received
ineffective assistance of counsel. Accordingly, we affirm the denial of his petition for
post-conviction relief.

                                                 ___________________________________
                                                 ALAN E. GLENN, JUDGE




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