        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 5, 2009

                COURTNEY MEANS V. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                Nos. 03-05190; 92; 94 James M. Lammey, Jr., Judge




                  No. W2008-01039-CCA-R3-PC - Filed June 21, 2010


Petitioner, Courtney Means, appeals the dismissal of his petition for post-conviction relief
in which he alleged that his trial counsel rendered ineffective assistance of counsel.
Specifically, Petitioner contends that (1) the search of his car and seizure of a gun was
unconstitutional; (2) counsel failed to file a motion to suppress the victim’s identification;
(3) counsel failed to file a motion to suppress his statement to police; and (4) the introduction
of a gun into evidence with a different serial number than the gun that was found in his
vehicle violated his due process rights. After a thorough review of the record, we conclude
that Petitioner has failed to show that his trial counsel rendered ineffective assistance of
counsel, and we accordingly affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J. C. M CL IN and
C AMILLE R. M CM ULLEN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Courtney Means.

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

                                          OPINION

I. Background

        Following a jury trial, Petitioner was convicted of eight counts of aggravated robbery,
all Class B felonies. This was based on three separate incidents involving four victims. The
trial court then merged the counts involving the same victim leaving four remaining
convictions, and Petitioner was ultimately sentenced to an effective eighteen-year sentence
in the Department of Correction. On appeal, this Court affirmed the convictions and
sentence. State v. Courtney Means, No. W2004-01446-CCA-R3-CD, 2005 WL 1323260
(Tenn. Crim. App. June.3, 2005)(app. denied Dec. 5, 2005). The facts surrounding
Petitioner’s convictions were summarized by this Court on direct appeal as follows:

       All four robbery victims were robbed at gunpoint in the driveways or carports
       of their Memphis homes during the Christmas holiday shopping season of
       December 2002. At the defendant’s May 3, 2004, trial, the first robbery
       victim, sixty-three-year-old Carolyn Fredrickson, testified she was loading
       three dogs into her car at about 3:00 p.m. on December 18, 2002, when she
       noticed a burgundy, square-looking vehicle with a drive-out tag in the rear
       window pull up on the street outside her home and a young man run across her
       yard. Assuming he was coming to sell her something, she continued placing
       the dogs into her car. When she raised up, the young man was holding a silver
       handgun against her neck and demanding her purse. After she handed it to
       him, he ran back to the waiting vehicle and got in the passenger side and the
       driver sped away. Approximately one month later, Fredrickson identified the
       defendant as the armed robber by picking his photograph out of a photographic
       array at the police department. She also made a positive courtroom
       identification of the defendant as her assailant and identified a photograph of
       the defendant’s vehicle as similar in appearance to the getaway vehicle used
       in the robbery.

       The second and third victims, husband and wife Robert and Sara Alice Hill,
       were robbed in their open garage at approximately 2:30 p.m. on December 22,
       2002. At trial, eighty-two-year-old Robert Hill testified he and his wife were
       unloading Christmas packages from the trunk of their vehicle when a man
       came up behind him, placed a shiny automatic pistol against his face, and
       demanded his wallet, his wife’s purse, and their car keys. Hill said the gunman
       threatened to shoot them if they did not comply with his demands. He testified
       that after they had handed the items over, the man threw the car keys down at
       the gate and ran to a waiting car, which was driven by another man. Hill
       described the getaway vehicle as a maroon or dark red Mercury or Chevrolet
       with a drive-out tag in the rear window, and he agreed it was very similar in
       appearance to the photograph of the defendant’s vehicle.

       Later that same afternoon, Robert Hollie was robbed in the carport of his home
       by a young man with a silver pistol who fled in a similar-looking vehicle.

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       Hollie, who was sixty-four years old at the time of trial, testified he was
       unlocking the door to his house at approximately 4:30 p.m. when a young man
       ran up, pointed a silver gun at his head, and shouted, “Get in the house or I’ll
       shoot.” Knowing that his wife was inside the house, Hollie began grappling
       with the gunman for the weapon. As he struggled, he ended up on his knees
       but still managed to retain his grip on the weapon and the gunman. At that
       point, however, a second man ran up and kicked him in the face and shoulder,
       breaking his nose. Hollie testified that when the second man began to kick
       him a third time, he grabbed the second man’s leg and the gunman was able
       to break away. He said the gunman took his wallet, and both men fled to a
       burgundy vehicle with a drive-out tag in the rear window and a luggage rack
       on the trunk. Hollie was unable to identify the robbers but, like Hill, agreed
       that the getaway vehicle was similar in appearance to the photograph of the
       defendant’s vehicle.

       On January 15, 2003, police officers were dispatched to a Memphis check
       cashing business in response to a report that someone was attempting to cash
       a stolen check. When they arrived, they found the defendant in the driver’s
       seat of his maroon Oldsmobile Cutlass, which had a drive-out tag in the rear
       window and a luggage rack on the trunk. In the subsequent search of the
       defendant’s vehicle, the officers discovered a chrome nine-millimeter, semi-
       automatic weapon hidden beneath the carpet behind the vehicle’s brake pedal.
       The defendant initially denied any involvement in the crimes but eventually
       issued three statements in which he detailed his participation in the robberies.

       The trial court applied four enhancement and no mitigating factors to sentence
       the defendant to nine years for each of his four aggravated robbery
       convictions. Finding that the defendant qualified as a dangerous offender, the
       trial court ordered that he serve two of the nine-year sentences consecutively,
       for an effective eighteen-year sentence in the Department of Correction.
       Thereafter, the defendant filed a timely appeal to this court, challenging the
       trial court’s sentencing determinations.

Means, 2004 WL 1323260, at *1-2.

II. Post-Conviction Hearing

       Concerning Petitioner’s arrest, trial counsel testified that police were called to a check
cashing business because someone was attempting to cash stolen checks. An undercover
officer responded to the call, and two females were ultimately arrested inside the business.

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While there, the officer saw Petitioner in a car fitting the description of a vehicle involved
in several robberies that had recently occurred. On cross-examination, trial counsel testified
that the car was a distinct, maroon, “boxey” vehicle with a luggage rack and a drive-out tag.
When the officer approached the vehicle and asked Petitioner to step out, he saw the pistol
grip of a weapon. Trial counsel agreed that the officer was well within his right to ask
Petitioner to get out of the vehicle, place him in custody, and search the car.

        Trial counsel testified that Petitioner made three statements to police. The written
statements contained the following language: “Courtney Means you are under arrest and may
be - - and it’s got a slash - - will be charged with aggravated robbery in connection with the
complaint.” He thought that police had probable cause to question Petitioner about the
robberies at the time of the statements. Trial counsel testified that if he thought “there was
a sliver of ground” to suppress the statements, he would have filed a motion to suppress. He
said:

       I asked [Petitioner] about any physical, or emotional intimidation, any threats,
       or promises, or coercions. I also went over with him his educational
       background, which he told me and I believe it was brought out in the
       discovery, that he had a 3.8 average at Tech High School. He said that he was
       not threatened and was not promised anything, nor coerced. That he did give
       it freely and voluntarily.

       In my discussions with him I found him to be a highly, highly intelligent young
       man and he said that he was not struck, or threatened with any kind of physical
       harm of any kind and that it was, in fact, all of the statements he gave them
       were freely and voluntarily given, knowingly, intelligently made and that his
       explanation for it was, he just needed money

       And he also expressed regret about being involved, no question about that.

Trial counsel also testified that Petitioner told him that he was advised of his right “generally
at the scene,” and he was formally advised when he was brought into the interview room and
when the statements were reduced to written form.

       Trial counsel testified he was unaware that the serial number of the weapon
introduced at trial was different than the serial number of the gun seized by police during the
search of Petitioner’s car. He said it appeared that two of the numbers were transposed, and
had he realized it at trial, he would have addressed it in closing argument. Trial counsel said
that everyone at trial testified that the gun was similar to the gun they saw used during the
robberies. No one testified that it was the specific gun used to rob them.

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        In hindsight, trial counsel wished that he had asked Carolyn Fredrickson about her
identification of Petitioner. He testified: “But, as I recall the - - I think it was Ms.
Fredrickson, had seen a photograph in the newspaper and voluntarily called the police
department and said that is “similar” to the person that was responsible, whatever day in
December that was.” Although the information was in discovery, it was not brought out at
trial. Trial counsel testified that Ms. Fredrickson was the only witness who identified
Petitioner in court. He said:

       . . . I do recall in my close, as I do in most closes, testifying is the easiest thing
       in the world for anybody to do in a court of law, is to know who the Defendant
       is. I told the jurors that I dare say the minute you walked in the courtroom you
       knew who the accused was, just because of where they are sitting. And the
       easiest thing in the world to do, in a court of law, is sit in this chair and know
       who the defendant is and know who to point to.

       However, her testimony - - that was on the close - - her testimony, however,
       on her direct, which was so positive that she even mentioned something about
       a blemish that she recalled and she could see that day from the stand. A
       blemish somewhere on his face.

        On cross-examination, trial counsel testified that when Petitioner was taken into
custody, the police already had a witness to whom they were showing photo arrays, and his
co-defendant was in custody talking to police. They also had a weapon and proceeds from
a robbery. Trial counsel pointed out that the only difference between the statement by
Petitioner and his co-defendant was who had the gun. He said: “In my consultations with
Mr. Means, he advised me he did everything that he said that he was accused of doing,
except holding the gun, criminal responsibility of another, I consider it my job to make sure
that the state crossed all the t’s, dotted all the i’s, filled in the blanks.”

        Petitioner testified that Ms. Fredrickson identified his co-defendant as the gunman,
which was not presented at trial. He said that according to one of the documents furnished
in discovery, Ms. Fredrickson called police and said that “she saw a picture in the paper that
looked similar to the suspect. The name was Enrico Marshall.” Petitioner testified that the
pistol was not in plain view at the time of his arrest because it was inside the carpet under his
gas and brake pedal. He also said that there was no reason for the police to “hassle” him.
Petitioner testified that he told trial counsel that police had no reason to approach him and
that the evidence should be suppressed.

        Petitioner testified that the serial number on the gun found in his car did not match the
serial number of the gun in the police report. He said that it differed by three numbers rather

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than two. However, he admitted that at trial, Officer Pike testified that the gun looked
similar to the gun that he found. Petitioner claimed that he was brought in for questioning
about a forgery; however, police then began questioning him about the robberies.

III. Standard of Review

       Initially, we note that although not raised by either party, the record in this case is not
complete. The transcript of the post-conviction hearing that was included in the record on
appeal indicates that there was an earlier hearing during which Petitioner testified. During
the second hearing, Petitioner’s counsel makes the following statement to the post-conviction
court:

       If Your Honor, please, this is just a continuation of the Courtney Means
       petition, versus the State of Tennessee, wherein I was appointed. And Mr.
       Means has testified and we have concluded our proof in chief at the last
       hearing, but you know in preparing for the hearing today there may be some
       omitted questions that I wanted to go over with Mr. Means. But, to keep some
       continuity in the record if we could go ahead and let Mr. Hall testify, then that
       might expedite it, because, I wanted to get into evidence maybe through Mr.
       Hall. But I am sure Your Honor would give me an opportunity to put on more
       proof.

A transcript of Petitioner’s earlier testimony was not included in the appellate record. It is
well settled that when a party seeks appellate review, it has a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the issues
forming the basis of the appeal. See State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993)
(holding failure to include transcript precludes appellate review); State v. Bunch, 646 S.W.2d
158, 160 (Tenn. 1983). Where the record is incomplete and does not contain a transcript of
the proceedings relevant to an issue presented for review, or portions of the record upon
which the party relies, an appellate court is precluded from considering the issue, and the trial
court’s ruling is presumed correct. See State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim.
App. 1988); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Because the
necessary relevant material is not included in the record, we decline to consider the merits
of the issues. See Tenn. R. App. P. 24(b). Accordingly, the issues are waived. However,
in the event of further review, we will briefly address Petitioner’s claims, in light of the
limited proceedings in the record.

        A petitioner seeking post-conviction relief must establish his allegations by clear and
convincing evidence. T.C.A. § 40-30-210(f). The trial court’s application of the law to the
facts is reviewed de novo, without a presumption of correctness. Fields v. State, 40 S.W.3d

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450, 458 (Tenn. 2001). A claim that counsel rendered ineffective assistance is a mixed
question of fact and law and therefore also subject to de novo review. Id.; State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must establish that counsel’s performance fell below the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
In addition, he must show that counsel’s ineffective performance actually adversely impacted
his defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed.
2d 674 (1984). In reviewing counsel’s performance, the distortions of hindsight must be
avoided, and this Court will not second-guess counsel’s decisions regarding trial strategies
and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore,
should not conclude that a particular act or omission by counsel is unreasonable merely
because the strategy was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Rather, counsel’s alleged errors should be judged from counsel’s perspective at the point of
time they were made in light of all the facts and circumstances at that time. Id. at 690, 104
S. Ct. at 2066.

        A petitioner must satisfy both prongs of the Strickland test before he or she may
prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572,
580 (Tenn. 1997). That is, a petitioner must not only show that his counsel’s performance
fell below acceptable standards, but that such performance was prejudicial to the petitioner.
Id. Failure to satisfy either prong will result in the denial of relief. Id. Accordingly, this
Court need not address one of the components if the petitioner fails to establish the other.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. In cases involving a guilty plea, the
petitioner must show prejudice by demonstrating that, but for counsel’s errors, he or she
would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991).

IV. Unconstitutional Search and Seizure

       Petitioner argues that the search of his car and seizure of the gun was unconstitutional.
He claims that he was originally arrested for passing a stolen check and that the officers
“searched the vehicle only for the reason that the appellant might be involved in cashing a
stolen check” rather than being involved in the robberies.

       The post-conviction court found that the officers in this case had probable cause to
search Petitioner’s car because the car matched the description of the vehicle involved in
several robberies in the area. As noted by the post-conviction court, the “automobile

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exception” allows police officers to search a vehicle without a warrant if they have probable
cause to believe the vehicle contains contraband. Carroll v. United States, 267 U.S. 132,
149, 45 S. Ct. 280, 283-84, 69 L. Ed. 2d 543 (1925); State v. Leveye, 796 S.W.2d 948 (Tenn.
1990). “Probable cause has been defined as a reasonable ground for suspicion, supported by
circumstances indicative of an illegal act.” State v. Hemming, 975 S.W.2d 290, 294 (Tenn.
1998).

       This finding is supported by the evidence presented at the post-conviction hearing.
Trial counsel testified that police were called to a check cashing business because someone
was attempting to cash a stolen check. An officer then saw a car fitting the description of a
vehicle involved in a number of robberies that had occurred over the past few days in that
area of town. When the officer approached the vehicle and asked Petitioner to step out, he
saw the pistol grip of a weapon. It is clear from the record that police had probable cause to
search Petitioner’s vehicle. Petitioner is not entitled to relief on this issue.

V. Prior Identification

       Petitioner contends that trial counsel was ineffective for failing to file a motion to
suppress the identification by one of the victims. He essentially argues that the identification
from a photographic array was impermissibly suggestive because the victim had previously
seen a photograph in the newspaper of a person that she said looked similar to Petitioner.

        In considering this issue, the post-conviction court held that while the victim did see
a photograph of Petitioner in the newspaper, “she stated at that time that the man in the
newspaper photograph looked similar to the person who robbed her.” The court further
noted that the victim made a positive identification of Petitioner at trial, and there was no
“substantial likelihood of misidentification.” Although trial counsel, in hindsight, wished
that he had asked the victim about her identification of Petitioner, he said that her
identification at trial “was so positive that she even mentioned something about a blemish
that she recalled and she could see that day from the stand. A blemish somewhere on his
face.”

        The fact that the victim may have seen a photograph in the newspaper that she thought
looked similar to the person who robbed her does not in itself show that the identification
was impermissibly suggestive. “The rule is that constitutional due process is violated if a
pretrial identification is influenced by suggestiveness by police officers to such a degree as
to render the identification unreliable.” State v. Shanklin, 608 S.W.2d 596, 598 (Tenn. Crim.
App. 1980). In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972), the United
States Supreme Court adopted a two-part test to assess the validity of a pretrial identification.
A court must determine (1) whether the procedure used to obtain the identification was

                                               -8-
unduly suggestive; and (2) if the identification was unduly suggestive, the court must
determine, under the totality of the circumstances, whether the identification is nevertheless
reliable. Id. At the post-conviction hearing, there was no evidence presented that the
victim’s identification of Petitioner was influenced by police or that the procedure used to
obtain the identification was unduly suggestive. In Bishop v. State, 582 S.W.2d 86, 91
(Tenn. Crim. App. 1979) this Court held that there was no due process violation because
there was no state action where a witness first identified defendant based on a single picture
that appeared in a local newspaper. Likewise, in State v. Howard Walter Thomas, E2003-
02090-CCA-R3-CD, 2005 WL 735040, at *18 (Tenn. Crim. App., Mar. 30, 2005)(app.
Denied Oct. 10, 2005), we held that there was no state action when the “friend of an
acquaintance” and not a law enforcement official sent the witness a newspaper photograph
of the defendant. We conclude that Petitioner has not shown that trial counsel’s performance
was deficient or that he was prejudiced by any alleged deficiency. Petitioner is not entitled
to relief on this issue.

VI. Statements to Police

       Petitioner argues that trial counsel rendered deficient performance for failure to file
a motion to suppress his statements to police because there was an unreasonable delay in
charging him. He asserts that he was detained for “approximately 12 hours during which
period of time he gave the statements.” Petitioner alleges that the detention was for the
“specific purpose of securing evidence” against him.

        Concerning this issue, the post-conviction court held that trial counsel’s actions did
not fall below an objective standard of reasonableness based on testimony by trial counsel
at the post-conviction hearing. At the hearing, trial counsel testified that Petitioner made
three statements to police, and if he thought “there was a sliver of ground” to suppress the
statements, he would have filed a motion to suppress. He thought that police had probable
cause to question Petitioner about the robberies at the time of the statements. He noted that
when Petitioner was taken into custody, the police already had a witness to whom they were
showing photo arrays, and his co-defendant was in custody talking to police. Petitioner told
counsel that he was not threatened, promised anything, nor coerced and that his statement
was given freely and voluntarily. Trial counsel also testified that Petitioner told him that he
was advised of his right “generally at the scene,” and he was formally advised when he was
brought into the interview room and when the statements were reduced to written form.

        “The Fourth Amendment requires a prompt judicial determination of probable cause
as a prerequisite to the extended detention of an individual after a warrantless arrest.” State
v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (citing Gerstein v. Pugh, 420 U.S. 103, 114, 95
S. Ct. 854, 43 L. Ed. 2d 54 (1975)). A judicial determination of probable cause is generally

                                              -9-
considered “prompt” if it is made within forty-eight hours. County of Riverside v.
McLaughlin, 500 U.S. 44, 55-56, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991). “The
issuance of a valid arrest warrant satisfies the requirement that there must be a judicial
determination of probable cause for extended detention.” Carter, 16 S.W.3d at 766.
However, not all probable cause determinations pass constitutional muster even if determined
within forty-eight hours of the accused’s warrantless arrest. McLaughlin, 500 U.S. at 56, 111
S. Ct. at 1670. As the Court noted,

       [s]uch a hearing may nonetheless violate Gerstein if the arrested individual can
       prove that his or her probable cause determination was delayed unreasonably.
       Examples of unreasonable delay are delays for the purpose of gathering
       additional evidence to justify the arrest, a delay motivated by ill will against
       the arrested individual, or delay for delay’s sake.

Id.; see also State v. Huddleston, 924 S.W.2d 666, 676 (Tenn. 1996).

        The record in this case reflects that there was probable cause for Petitioner’s arrest,
and he has failed to show that there was any unreasonable delay in charging him. The
twelve-hour delay does not exceed the forty-eight hour threshold set forth in McLaughlin,
and Petitioner has not met his burden of establishing a Fourth Amendment violation.
Petitioner has failed to show that trial counsel’s performance was deficient by failing to raise
this issue prior to trial.

VII. Introduction of the Gun into Evidence

        Petitioner complains that trial counsel was ineffective for failing to realize that there
was a discrepancy in the serial number of the gun introduced at trial and the one in the police
report and by failing to bring this discrepancy to the jury’s attention. The post-conviction
court held that the serial number discrepancy would not have made a difference in the
outcome of the trial. The court noted that at trial, the officer testified that it was the gun
found in the car. At the post-conviction hearing, trial counsel testified he was unaware that
the serial number of the weapon introduced at trial was different than the serial number of
the gun seized by police during the search of Petitioner’s car. He said it appeared that two
of the numbers were transposed. Trial counsel said the witnesses at trial testified that the gun
was similar to the gun they saw used during the robberies. No one testified that it was the
gun used to rob them.

       We conclude that Petitioner has failed to show that trial counsel’s assistance fell
below the acceptable standards nor does the record preponderate against the trial court’s
finding that Petitioner was not prejudiced by any aspect of his trial counsel’s assistance

                                              -10-
because the serial number discrepancy would not have affected the outcome of the trial. The
evidence against Petitioner at trial was strong. One of the victims identified Petitioner from
a photo array, and she positively identified him at trial. Additionally, all of the witnesses
described Petitioner’s vehicle as one similar to the getaway vehicle used in the robberies.
None of the victims testified that the gun introduced at trial was the one used to rob them.
State v. Means, 2004 WL 1323260, at *1-2.

                                      CONCLUSION

       After a thorough review, we affirm the judgment of the post-conviction court.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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