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

                 LEMAR J. WHITE v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                     No. 01-11077   James C. Beasley, Jr., Judge




                 No. W2008-01661-CCA-R3-PC - Filed May 20, 2010


Petitioner Lemar J. White was convicted of first degree premeditated murder and sentenced
to life in prison. After this court affirmed his conviction, he filed a petition for post-
conviction relief, alleging he received ineffective assistance of both trial and appellate
counsel. Specifically, he claims both attorneys should have challenged the validity of his
warrantless arrest because the State did not supply a sufficient basis for finding probable
cause. We affirm.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Lemar J. White.

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


                                        OPINION

                                 I. Factual Background

        The facts leading to Petitioner’s indictment and conviction are summarized in our
direct appeal decision. See State v. Lemar J. White, No. W2004-00276-CCA-R3-CD, 2005
WL 331384, at *1 (Tenn. Crim. App. at Jackson, Feb. 11, 2005). In short, the victim in this
case was shot to death in his front yard during “a barrage of approximately fifteen to twenty
gunshots.” Id. While no one saw the shooter, police learned that the shots came from an
area behind a fence. Id. When they examined the area, they discovered “a green plastic chair
near an opening in the fence, which permitted a clear view of the victim’s house.” Id. They
also found twelve shell casings on the ground around the chair. Id. Police found five
fingerprints on the chair that matched Petitioner’s. Id. Petitioner was living with his mother
at the time, and police obtained her consent to search her house. Id. Their search revealed
a hidden SKS 7.62 rifle that ballistics testing showed matched the spent shell casings found
near the chair. Id. Police arrested Petitioner without a warrant, and, after initial denials,
Petitioner confessed to shooting the victim in a murder-for-hire scheme. See id.

        At trial, the State called Sergeant William Merritt, an officer with the Memphis Police
Department (MPD), who testified that he arrived at the scene shortly after the shooting and
discovered a lawn chair across the street. The chair was positioned behind a fence with a
hole in it providing a clear view of the location where the victim was shot. He also located
several shell casings on the ground around the chair. In addition, Sergeant Merritt testified
that he told Petitioner during his interview that the police had fingerprints linking Petitioner
to the shooting. Sergeant Merritt then testified:

       Q.      And did, in fact, you had the finger–I mean, it wasn’t something you
               made up, was it?
       A.      That is correct.

Later, in response to trial counsel’s request that Sergeant Merritt state “every specific fact
which [he] relied upon to give [him] probable cause,” Sergeant Merritt testified that police
had discovered a chair with Petitioner’s fingerprints on it and that shell casings were found
on the ground around the chair. He further noted that the chair’s owner did not know
Petitioner, a question police asked prior to arresting Petitioner so that they could exclude a
legitimate reason for his fingerprints being on the chair.

       The State called two other MPD officers at trial. The first, Officer Francis Donald
Carpenter, testified that he discovered several prints underneath the chair’s armrests during
an examination on March 5, 2001. The second, Officer Martin Milner, testified that he
received the fingerprints discovered by Officer Carpenter and that he searched the Automated
Fingerprint Identification System for potential matches. The system indicated that
Petitioner’s fingerprints matched those found on the chair, and Officer Milner’s personal
examination, which also occurred on March 5, 2001, confirmed the match.

      At the conclusion of the trial, Petitioner was convicted of first degree premeditated
murder and sentenced to life in prison.

       Petitioner filed a motion for a new trial, arguing, in part, that the State lacked probable
cause to arrest him without a warrant. He specifically argued that the fingerprints obtained

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from the lawn chair were insufficient to establish probable cause. The trial court denied the
motion, and this court affirmed Petitioner’s conviction on direct appeal.

      Petitioner then filed the present petition for post-conviction relief. He called two
witnesses at the post-conviction hearing. The first, Petitioner’s trial counsel, testified that
he was an experienced criminal lawyer who had practiced law for approximately 32 years.

         Trial counsel testified that Petitioner gave a “very damaging” and lengthy “full
confession” to investigators. Trial counsel moved to suppress the statement on the grounds
that it was improperly induced. Petitioner told counsel that he gave the statement after the
officers told him he would be released after he gave a statement. Counsel did not argue that
Petitioner was arrested without a warrant and without probable cause. Trial counsel recalled
that the officers at the suppression hearing testified that they had found and analyzed
fingerprints at the scene and concluded that they matched Petitioner’s. Specifically, he noted
that the police discovered Petitioner’s fingerprints on the lawn chair and that its owner
informed the police that she did not know Petitioner and therefore Petitioner had no reason
to touch it. Trial counsel explained that he “didn’t think that there was even an issue of
probable cause” and that “the circumstances behind the finding of the chair and the
fingerprint analysis . . . was sufficient to establish the probable cause.” Consequently, trial
counsel decided that a probable cause argument would have been frivolous, and he noted his
position was vindicated when the trial court “gratuitously” found probable cause for the
arrest.1

       Petitioner’s second witness was his direct appeal counsel. Appellate counsel testified
that he had worked for the public defender’s office since 1990 and had worked as an
appellate attorney in the office since 1996. He had handled approximately 250-300 appeals
during that time.

       Appellate counsel testified that he did not raise an issue regarding the existence of
probable cause to arrest Petitioner without a warrant because there was no evidence in the
record to support the argument. He further noted that he believed probable cause was a
“non-issue” in the case because of the evidence the police discovered on and around the lawn
chair. Thus, while he recognized that the issue of probable cause was raised in trial counsel’s
motion for a new trial, appellate counsel declined to press that argument on appeal.

       At the close of evidence, Petitioner argued that because he was arrested without a
warrant, the State was required to prove the existence of probable cause but failed to do so.
In the post-conviction court’s words, to which Petitioner agreed, the claim “is that trial
counsel failed to object or require the state to prove probable cause to the initial arrest [and

       1
           The issue was not raised in Petitioner’s motion nor was it argued.

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that] appellate counsel was ineffective for not raising that issue on appeal.” Petitioner argued
that trial counsel’s failure to raise the issue, and appellate counsel’s failure to argue it on
appeal, was constitutionally deficient and prejudiced Petitioner because the evidence from
the suppression hearing did not satisfy the government’s burden to show probable cause.
Petitioner asserted that “it’s not a question of whether there was probable cause, the question
[is] whether the state carried its burden of proof in that there was probable cause.”

       The State argued that the police had probable cause to make the arrest and therefore
Petitioner failed to establish prejudice.

       The post-conviction court agreed with the State. In its written order, the court stated:

       This Court has reviewed the transcript of the trial and the Motion to Suppress
       evidence. It appears to the Court that the police did in fact have probable
       cause to arrest the petitioner. Based upon the proof, the crime scene was a
       chair in the backyard of a home. Scattered around the chair were multiple
       shell casings, consistent with the manner in which the victim was shot.
       Multiple fingerprints belonging to the petitioner were found on the chair. This
       Court is of the opinion based upon the proof and the lack of any proof to
       contest or contradict that evidence that the police did in fact have probable
       cause to arrest the petitioner. Further, this Court finds that the trial court in
       fact addressed this issue whether trial counsel raised it or not and ruled that the
       police did have probable cause for the arrest. Therefore, even if trial counsel
       and appellate counsel did not raise the issue it would be harmless error because
       there was in fact probable cause for the arrest.


       Petitioner raises the same issues on appeal.

                                         II. Analysis

       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight

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of a jury verdict, with such findings being conclusive on appeal absent a showing that the
evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001). We review the post-conviction court’s conclusions
of law purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, 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.” Strickland, 466 U.S. at 694. Moreover,

       [b]ecause a petitioner must establish both prongs of the test, a failure to prove
       either deficiency or prejudice provides a sufficient basis to deny relief on the
       ineffective assistance claim. Indeed, a court need not address the components
       in any particular order or even address both if the [petitioner] makes an
       insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

                       A. Ineffective Assistance Of Trial Counsel

        With respect to Petitioner’s claim regarding his trial counsel, he correctly notes that
the failure to file a motion to suppress evidence can, in some cases, form the basis for a claim
of ineffective assistance of counsel. See Northrop v. Trippett, 265 F.3d 372, 378 (6th Cir.
2001) (citing Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986)); see also Lueptow v.
State, 909 S.W.2d 830 (Tenn. Crim. App. 1995). However, to be entitled to relief because
trial counsel failed to move to suppress evidence, Petitioner must “prove that his Fourth
Amendment claim is meritorious and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence in order to demonstrate actual
prejudice.” Northrop, 265 F.3d at 384 (quoting Morrison, 477 U.S. at 375) (emphasis
added).


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        Petitioner has failed to establish that his Fourth Amendment claim is meritorious.
Tennessee law provides that an officer may arrest a person without a warrant “[w]hen a
felony has in fact been committed, and the officer has reasonable cause for believing the
person arrested has committed it.” Tenn. Code Ann. § 40-7-103(a)(3); see also State v.
Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005). Unquestionably, homicide, in its varying forms,
is a felony. See Tenn. Code Ann. § 39-13-201, et. seq. Thus, our next inquiry is whether
police had probable cause to believe that Petitioner committed the offense. See State v.
Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App. 2000). Probable cause is established when “the
facts and circumstances and reliable information known to the officer at the time of arrest
were sufficient to warrant a prudent person in believing that the individual had committed
or was committing an offense.” Lawrence, 154 S.W.3d at 75-76 (quotation marks and
brackets omitted). “Mere suspicion” is not enough. Id. Moreover, courts determine the
existence of probable cause after assessing all of the information available to the officer at
the time of arrest, including hearsay evidence. See Tenn. R. Crim. P. 4(b); State v. Tays, 836
S.W.2d 596, 600 (Tenn. Crim. App. 1992); State v. Woods, 806 S.W.2d 205, 212 (Tenn.
Crim. App. 1990); State v. Raspberry, 640 S.W.2d 227, 228 (Tenn. Crim. App. 1982).

        Here, as the trial court noted, the evidence demonstrated there was a sufficient basis
to establish probable cause. Prior to his arrest, police discovered Petitioner’s fingerprints on
the lawn chair that was positioned to allow a shooter to fire at the victim through a fence.
In addition, bullets were found around the chair, indicating that the shots that killed the
victim were fired from the chair. The owner of the chair told police that she did not know
Petitioner, so there was no reason for his fingerprints to be on it. These facts and
circumstances warrant a prudent person’s believing that Petitioner killed the victim.

        Petitioner argues that prejudice can be established because the evidence elicited at the
suppression hearing did not satisfy the State’s burden of showing probable cause. We
disagree. The record reflects that, prior to trial, Petitioner filed a motion to suppress his
confession.2 In that motion, Petitioner argued that his statement was improperly elicited and
that his arrest was unconstitutional because the police lacked probable cause. At the hearing
on the motion, Sergeant Merritt testified that he interviewed Petitioner on March 5, 2001,
after his arrest. Petitioner initially denied involvement in the victim’s death. Sergeant
Merritt then “told [Petitioner] that [the police] had recovered fingerprints . . . that placed



        2
            The State argues that Petitioner waived this issue because he did not include the record for his
underlying conviction as part of the record in this post-conviction appeal. We disagree. The record clearly
indicates that the post-conviction court ordered that the record be sent for his review and that trial counsel
asked that it be part of the record on this appeal. Moreover, the record is housed in the clerk’s office and was
thus available for our review. We have obtained the record of Petitioner’s direct appeal and have reviewed
it in our determination of the present appeal.

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[Petitioner] at the scene of the shooting.” Soon thereafter, Petitioner confessed to killing the
victim.

       The suppression hearing ended abruptly when Petitioner took the stand and again
confessed to killing the victim in a murder-for-hire scheme. At that point, trial counsel asked
to continue the suppression hearing to allow the attorneys to “discuss the new
developments,” and the court agreed. The State asked the trial court to make a ruling in the
event plea discussions were not successful. From the record before us, it appears the hearing
never resumed.

        The trial court issued a lengthy written order denying Petitioner’s motion. In its order,
the trial court specifically found that the police had probable cause to arrest Petitioner
without a warrant, noting:

              In the present case the MPD had lifted [Petitioner’s] fingerprints from
       a chair apparently used by the alleged shooter. This provides a basis to lead
       a reasonable person to believe [Petitioner] was involved in a felony.
       Therefore, [Petitioner’s] arrest was based on probable cause within the
       meaning of the Fourth Amendment and within the guidelines set forth in
       [Tennessee Code Annotated section] 40-7-101 et seq.

       Now, before this court, Petitioner argues that he can establish prejudice because the
evidence the State adduced at the suppression hearing does not demonstrate probable cause.
According to Petitioner, the testimony in the suppression hearing was limited to what law
enforcement told Petitioner about the evidence, i.e., that officers told Petitioner they had
found his fingerprints on the chair, not what the evidence actually showed.

       This argument misses the mark. The issue relating to probable cause to arrest was not
addressed at the hearing. According to trial counsel’s testimony, he narrowed his argument
to improper inducements, so the State narrowed its evidence to that argument as well.
Indeed, because of the abrupt ending to the hearing, the State did not even put on any
evidence of its own. Regardless, the trial court addressed the issue in its written order,
finding that the State had probable cause. Petitioner would have us consider probable cause
solely on the basis of the evidence from the suppression hearing. However, Morrison
instructs courts to look to the merits of the underlying claim. See 477 U.S. at 375. We have
no difficulty concluding that the police had probable cause to arrest Petitioner. Therefore,
Petitioner has failed to meet the prejudice prong of the Strickland analysis with respect to his
claim regarding trial counsel.

             B. Ineffective Assistance Claim Regarding Appellate Counsel



                                               -7-
       Petitioner’s claim regarding appellate counsel fairs no better. While Petitioner is
correct that ineffective assistance of appellate counsel can form the basis for a post-
conviction relief claim, see House v. State, 911 S.W.2d 705, 712 (Tenn. 1995) (citing
Douglas v. California, 372 U.S. 353 (1963)), he must still satisfy the requirements of
Strickland. Here, even if he could establish deficient performance, Petitioner cannot
establish prejudice.

        As noted above, the theory in Petitioner’s motion to suppress was that the officers
improperly induced Petitioner to make a statement by promising him he would be released.
Probable cause to arrest was not addressed at the suppression hearing. Regardless of whether
the issue was preserved or appellate counsel would have had to press the claim as a matter
of plain error, Petitioner must still demonstrate that the issue had merit. Appellate counsel
testified that he did not believe the claim had any merit, and, as explained above, we agree.
The trial court specifically found probable cause, and the evidence in the record supports that
conclusion. Petitioner has therefore failed to establish prejudice with respect to his claim of
ineffective assistance of appellate counsel.

                                       III. Conclusion

         Upon review of the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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