        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 7, 2010

               KENDRICK D. RIVERS v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                       No. C-09-43    Donald H. Allen, Judge


               No. W2010-00489-CCA-R3-PC - Filed March 25, 2011




The petitioner, Kendrick D. Rivers, appeals the Madison County Circuit Court’s denial of
his petition for post-conviction relief. The petitioner was convicted of possession of cocaine
with intent to sell, resisting arrest, evading arrest, and criminal trespass. Following a
sentencing hearing, he was sentenced to serve an effective term of twelve years in the
Department of Correction. On appeal, the petitioner asserts that he was denied his right to
the effective assistance of counsel, specifically arguing that trial counsel was ineffective for
failing to meet with the petitioner a sufficient number of times and to properly investigate
the case. Following review of the record, we find no error and affirm the denial of post-
conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant Public
Defender, for the appellant, Kendrick D. Rivers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Procedural History

       The relevant facts underlying the petitioner’s convictions, as recited on direct appeal,
are as follows:

               The [petitioner’s] convictions relate to an incident on January 17, 2004,
       in Jackson, Tennessee. On that evening, Jackson Police Officer Roland James
       was on routine patrol in Parkview Courts, a housing property owned and
       managed by the Jackson Housing Authority, when he observed the [petitioner]
       standing with a group of individuals. Because Officer James knew that the
       [petitioner] had been placed on the “no trespass list” for Parkview Courts, he
       stopped his patrol car and asked the [petitioner] to stop. At that point, the
       [petitioner] “took off running,” and Officer James gave chase and called for
       backup. Officer James testified that as he chased the [petitioner,] he saw the
       [petitioner] throw down “a plastic bag that may have contained narcotics.”
       Officer James did not stop to retrieve the bag and instead continued to chase
       the [petitioner] until he “caught up with [the petitioner] when he tried to get
       into a yellow Cadillac.” The two men struggled, and Officer James “pulled
       [his] gun out and stuck it in [the petitioner] and asked him to come out [of] the
       vehicle.” With assistance from fellow officer Marvin Brooks, Officer James
       was eventually able to place the [petitioner] in custody. A search of the
       [petitioner’s] person revealed several clear plastic baggies, a cellular
       telephone, $1100, and “a box of sandwich wrap plastic bags in his back
       pocket.” Officer James explained that “most of your drug dealers and pushers
       will use sandwich bags to separate the cocaine or the crack and wrap it
       individually so that they can distribute it or sell it.”

             Upon searching the area where the [petitioner] had jettisoned his
       package, the officer discovered a plastic bag containing [what was later
       determined to be 20.2 grams of cocaine.] . . .

              During cross-examination, Officer James conceded that there were
       other people congregated in the general area where the plastic bag of cocaine
       was found. He also acknowledged that he did not request a fingerprint
       examination of the plastic bag.

State v. Kendrick D. Rivers, No. W2006-01120-CCA-R3-CD, 2008 WL 65311 at *1 (Tenn.
Crim. App., at Jackson, Jan. 7, 2008). Based upon these actions, a Madison County grand
jury indicted the petitioner for possession of cocaine with intent to sell, possession with intent
to deliver, resisting arrest, evading arrest, and criminal trespass. Following a jury trial, the
petitioner was found guilty on all counts as charged. The trial court subsequently merged the
two possession convictions and imposed an effective sentence of twelve years in the
Department of Correction. A panel of this court affirmed the convictions and sentence on

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direct appeal. Id.

       Thereafter, the petitioner filed a timely pro se petition for post-conviction relief in
which he raised numerous claims of error. Counsel was appointed, and a hearing was held
during which only trial counsel and the petitioner testified. At the hearing, the petitioner
limited his proof to the issue of ineffective assistance of counsel. The petitioner testified that
he retained trial counsel, whom he had hired on previous occasions, to represent him in this
case. He stated that trial counsel met with him only once, the day before the trial was held,
at the county jail. According to the petitioner, trial counsel asked the petitioner on that
occasion “what was [his] defense.” The petitioner stated that he had previously given trial
counsel the name of a possible defense witness, Travis Cole, who would testify that the drugs
found belonged to him and not the petitioner. On cross-examination, the petitioner
acknowledged that trial counsel did, in fact, subpoena Mr. Cole, who took the stand in the
case and immediately asserted his fifth amendment privilege against self-incrimination.

       The petitioner’s main contention was that trial counsel failed to sufficiently attack
discrepancies between the various police documents, i.e., the affidavit of complaint and the
police report. In one of the two documents, the officer stated that the petitioner had thrown
the drugs during the chase, while the officer stated in the other document that the drugs were
thrown while the petitioner was struggling with the officer. Additionally, in one statement,
the officer referred to the bag of drugs as white or clear plastic, and, in the other, he stated
the bag was black. The petitioner testified that he felt that if trial counsel had fully
investigated the case, he would have been more prepared to properly cross-examine Officer
James regarding the discrepancies and to establish that the officers had fabricated their
testimony. However, the petitioner acknowledged that trial counsel did question the officers
about the discrepancies at trial.

        Trial counsel testified and stated that he met with the petitioner on two to three
occasions at the county jail prior to the petitioner being transferred to the Department of
Correction in a separate case. Trial counsel testified that he obtained discovery and discussed
the case with the petitioner. He stated that he did not file a pretrial motion to suppress as he
felt there was no merit to such a motion. Trial counsel testified that he was aware that there
were inconsistencies in the various police reports and that he discussed these inconsistencies
with the petitioner. He stated he met with the officers involved in the case and that he felt
prepared for trial. Trial counsel disagreed with the petitioner and felt that he had sufficiently
brought the discrepancies in the documents to the jury’s attention.

       Trial counsel also testified regarding Travis Cole. He opined that, after he was given
Mr. Cole’s name, he located him and met with him. He stated that, based upon that
interview, he believed that Mr. Cole was going to claim responsibility for the drugs when he

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testified at trial. When Mr. Cole took the stand and asserted his privilege, trial counsel was
completely surprised.

      After hearing the proof presented, the post-conviction court found that the petitioner
was not entitled to relief and denied the petition. This appeal followed.

                                           Analysis

       On appeal, the petitioner has raised the single issue of ineffective assistance of
counsel. To succeed on a challenge of ineffective assistance of counsel, the petitioner bears
the burden of establishing by clear and convincing evidence the allegations set forth in his
petition. T.C.A. § 40-30-110(f) (2006). The petitioner 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 (1984), the 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).

      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. 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).

       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.

       The petitioner asserts that the post-conviction court erred in denying him relief as trial

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counsel was deficient and that prejudice resulted. The petitioner first makes the conclusory
allegation that trial counsel failed to meet with him a sufficient number of times prior to trial.
He also contends that trial counsel’s failure to properly investigate the case led to his being
ill-prepared to cross-examine Officer James about the discrepancies in the reports. The
petitioner asserts that if trial counsel “had met with the petitioner more often, he would have
gained a better understanding of the facts of the case . . . [and] would have therefore been
better prepared to present the petitioner’s defense to a jury, which would likely have resulted
in an acquittal for the petitioner.”

        In denying relief, the post-conviction court, specifically accrediting the testimony of
trial counsel, found that the petitioner had failed to establish either prong required for
ineffective assistance of counsel. After a thorough review, we must conclude that nothing
in the record before us preponderates against those findings. Trial counsel testified that he
met with the petitioner two to three times in the months prior to trial and discussed the case
with him. He stated that even if he should have met with the petitioner more, he did not feel
it would have changed his actions at trial. He testified that he interviewed the relevant
witnesses, obtained discovery, and worked out a defense strategy to pursue at trial, based
upon Mr. Cole’s testimony and a plan to inform the jury with regard to the discrepancies in
the police reports. According to trial counsel, he was as prepared as he could be for trial.
Trial counsel also testified that he believed he had sufficiently raised the discrepancies before
the jury during his cross-examination of the officers.

        The defendant acknowledges that trial counsel was aware of the discrepancies and that
he brought them out on cross-examination. However, his argument, as characterized by the
State, is that trial counsel should have tried harder. That argument does not entitle the
petitioner to relief. He has failed to put forth any evidence to establish either that trial
counsel was deficient or that prejudice inured. Under these circumstances, no relief is
merited.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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