        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              December 8, 2015 Session

                GERRY TALLANT v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 07-05423    James C. Beasley, Jr., Judge


                No. W2014-02519-CCA-R3-PC - Filed April 5, 2016



The petitioner, Gerry Tallant, appeals from the denial of his petition for post-conviction
relief from his premeditated first degree murder conviction. He argues that he received
ineffective assistance of counsel because counsel failed to argue in the motion to suppress
that: (1) he was arrested on the murder charge although the officers lacked probable
cause; (2) he was detained for a custodial interrogation although the officers lacked
probable cause; and (3) he was seized without reasonable suspicion. After 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 THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Gerry Tallant.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kirby May and Stacy
M. McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

        A Shelby County Criminal Court jury convicted the petitioner of premeditated
first degree murder, and he was sentenced to life imprisonment. This court affirmed his
conviction on direct appeal, and the Tennessee Supreme Court denied his application for
permission to appeal.
This court recited the underlying facts of the case on direct appeal as follows:

        On August 7, 2007, the Shelby County Grand Jury indicted the
[petitioner] for the premeditated first degree murder of the victim, David
Williams. The State’s proof at trial revealed that the victim was dating
Tracy Tallant, the [petitioner]’s daughter, and they had an eight-month old
son together. The [petitioner] owned a house at 9229 Kerrville-Rosemark
Road in Memphis, but he lived with his girlfriend, Tina Camplin, in
Mississippi. With the [petitioner]’s permission, Tracy lived in the
[petitioner]’s Memphis house. Although the victim did not have the
[petitioner]’s permission to live in the house, he stayed with Tracy
approximately half of every week.

        On April 23, 2007, the [petitioner] and Camplin drove to Memphis,
stopping first at Sanford Ruffin’s apartment. At around 7:00 or 7:30 p.m.,
the [petitioner] drove Camplin and Ruffin to 9229 Kerrville-Rosemark
Road. Camplin went to buy crack cocaine from the victim; Ruffin and the
[petitioner] went to “kick [the victim’s] ass” because of his ill treatment of
Tracy. Camplin did not see the [petitioner] or Ruffin with a gun; however,
the [petitioner] often carried a gun and had a permit to do so.

        The [petitioner] parked on the street beside the residence and
remained in the truck while Camplin and Ruffin went inside the residence.
Camplin purchased twenty dollars’ worth of crack cocaine. Ruffin stayed
in the house in the bathroom, but Camplin returned to the truck.

        The [petitioner] got out of the truck and went in the house; Camplin
sat in the truck to use part of the crack cocaine. Within a few minutes, she
heard at least five shots fired in rapid succession. A couple of minutes
later, the [petitioner] returned to the truck, looking like he was “in shock.”
One or two shots followed, then Ruffin hurriedly returned to the truck.
Afterward, they returned to Ruffin’s apartment but did not talk about what
happened.

       Later that night, Tracy went with a friend to the Millington Police
Department to ask for help getting a black man who lived with Tracy out of
her residence. Tracy told police the man was possibly armed with [a]
handgun and/or in possession of narcotics. Although Tracy’s address was
located only four or five miles from the police department, the address was
in the sheriff’s department’s jurisdiction. Therefore, Shelby County
Sergeant Glen Ray Essary, Jr., was dispatched to handle the complaint.
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        At approximately 9:00 p.m., Sergeant Essary and several other
officers proceeded to Tracy’s address. Although the residence was not
well-lit, officers saw the front door had been forced open, indicating a
crime had been committed. When the officers entered the residence, they
saw the victim’s lifeless body on the floor of the living room.

       Tracy and her friend had followed police to the residence. After
discovering the body and securing the scene, police placed Tracy and her
friend in separate vehicles. Shelby County Deputy Charles Wallace noticed
a small, .380 caliber semiautomatic handgun that was silver with a black
handle in Tracy’s vehicle.

        Afterward, Shelby County Lieutenant John Mills and Sergeant
Robert Butterick went to the residence to search for and collect evidence.
In the living room, the victim “was laying face down with his head towards
the front door, feet towards the kitchen area, both hands, arms up
underneath him” in a “defensive” manner. There was a small, chrome,
semiautomatic .380 caliber pistol in his right rear pocket. Additionally, a
small bag of crack cocaine was in the “change pocket” at the top of his right
front pants pocket, and a small, plastic bag containing 9.4 grams of
marijuana was in [the] victim’s left front pants pocket. The victim was
clutching three twenty-dollar bills and two five-dollar bills in his hand.

        While examining the residence, the officers noticed an ironing board
in the kitchen area and a still-warm iron on the kitchen counter. There were
two bullet holes in the floor: one had gouged a dent in the wood underneath
the carpet and one beside the victim’s head had gone completely through
the floor into the foundation underneath the house.

        The victim’s gun was empty when it was removed from his back
pocket, but there was a box of ammunition on an entertainment center in
the living room. No expended shell casings were found in the house,
indicating that either a revolver, which does not eject shell casings after
firing, was used in the shooting or that someone using a pistol picked up the
expended shell casings.

        Later on the night of the homicide, police determined that the
[petitioner] was a “person of interest.” From a disturbance call, police
determined that the [petitioner] was at Ruffin’s apartment. When police
went to Ruffin’s apartment, they confiscated from the [petitioner] a small,
                                     3
two-shot, .38 caliber, Davis derringer pistol and a .357 stainless steel Ruger
revolver. From Ruffin, police confiscated a .40 caliber Ruger pistol, a .357
blue Smith and Wesson revolver, and a .22 caliber pump-action rifle.

       On the day after the homicide, Tracy gave a statement to Shelby
County Sheriff’s Sergeant Kevin Helms describing the suspect as “a stocky
male black, bald hair with two stud earrings and a small cream colored type
truck.” Sergeant Helms was familiar with an individual matching that
description, but he was in custody at the time of the murder. Therefore,
Sergeant Helms suspected Tracy’s statement was not entirely truthful.
Sergeant Helms detected no bruises or injuries on Tracy, but he noted that
she was wearing baggy jeans and a sweatshirt.

        Camplin also gave a statement to police, implicating Ruffin and the
[petitioner] in the shooting. However, she averred that she gave the
statement because she was scared, maintaining police threatened to send her
to jail. Camplin stated that the victim was not the father of Tracy’s baby.

        The [petitioner] gave two statements to police. In his first statement,
he denied any involvement in the shooting. However, after police pointed
out known facts and inconsistencies in his version of events, he gave a
statement implicating himself but asserting self-defense. The [petitioner]
said he went to the residence to pick up a disability check. Knowing the
victim was abusing Tracy, he also planned to get the victim out of the
house or to find a way to stop the abuse. The [petitioner] took a chrome
.357 Ruger with him. Ruffin, who had a .357 black/blue steel revolver,
went along as backup. The [petitioner] walked in the house and saw a man
standing there. The man “hollered” and started reaching for something; the
[petitioner] became scared and fired at the man six times, emptying his gun.

       Dr. Lisa Funte performed the autopsy on the victim and determined
the victim’s death was caused by multiple gunshot wounds, all of which
were “distant gunshot wounds” made from at least a few feet away. In
addition to at least three non-fatal gunshot wounds, Dr. Funte discovered
three fatal wounds: one which entered the back of the victim’s head; one
which penetrated the victim’s right lung after entering the center of his
chest; and one which entered his neck, lacerated the aorta and trachea, and
went through the pericardial sac covering the heart. The gunshot wounds
were consistent with shots being fired in rapid succession while the victim
fell. Additionally, the wound to the back of the victim’s head was

                                      4
consistent with the shooter standing over the victim as he lay face down on
the floor.

        Two pistols collected from the victim and Tracy at 9229 Kerrville-
Rosemark Road and four handguns collected from the [petitioner] and
Ruffin at Ruffin’s apartment were submitted to the Tennessee Bureau of
Investigation (TBI) crime laboratory for testing. Six bullets or bullet
fragments discovered during the victim’s autopsy were also sent to the TBI.
Shelly Betts, a TBI firearms identification and ballistics expert, performed
the tests. Although some of the bullets and bullet fragments “had no
markings of comparison value,” she determined that the bullet fired into the
back of the victim’s head came from Ruffin’s .357 Smith and Wesson
revolver. She determined the other two fatal bullets were fired from the
[petitioner]’s Ruger .357 revolver. A gunshot residue test was performed
on the victim’s hands, but the results were inconclusive.

        The defense’s proof at trial was that the fifty-six-year-old
[petitioner] owned the house at 9229 Kerrville-Rosemark Road, had lived
there before, and stayed there every two weeks when he came to Memphis
to collect his disability checks. The [petitioner] said that he “had several
run-ins over the last five years” with the victim and that the victim
repeatedly threatened him and his daughter over the telephone. During one
of Tracy’s visits in Mississippi, the [petitioner] saw a bruise on her cheek
and bruises on her arms and legs.

        The [petitioner] said Tracy had his permission to live in the house,
but the victim did not. The [petitioner] did not always know when the
victim had been in the house because he would leave upon learning the
[petitioner] was coming to visit.

        When the [petitioner] arrived in Memphis on April 23, 2007, he
went to Ruffin’s apartment. The [petitioner] said he was “[n]ot that bad
[upset]” about the abuse, but he planned to get the victim out of the house.
However, Camplin wanted to first buy crack cocaine from the victim. The
[petitioner] explained that Camplin was unable to speak and that Ruffin
knew the victim; therefore, Ruffin went along to be Camplin’s
“mouthpiece” during the drug purchase. Ruffin did not go to assist the
[petitioner] in evicting the victim. The [petitioner] took his .357 Ruger
revolver, and Ruffin had a .357 Smith and Wesson revolver.



                                     5
        At the house, the [petitioner] parked behind a two-car shed on the
property because Camplin feared that the victim would leave if he saw the
[petitioner], and she would not be able to get her drugs. The [petitioner]
waited in the truck while Camplin and Ruffin went in to purchase drugs.

        A couple of minutes later, Camplin returned to the truck, alone. The
[petitioner] waited a few minutes for Ruffin then went into the house. He
did not need to use his key because the front door was cracked open. The
only illumination in the front of the house came from a small, fluorescent
light above the sink in the kitchen.

       The [petitioner] did not know Ruffin’s location, but he saw the
victim in the kitchen “hunkered down . . . doing something at the sink.” It
took the [petitioner] “a moment” to recognize the victim because he had cut
his hair. The [petitioner] said nothing, but the victim noticed him a few
seconds later. The victim screamed “you mother f[* * * * *] and he went
for his hip,” moving toward the [petitioner]. The [petitioner] believed the
victim was reaching for a gun because he knew the victim carried a pistol.
The [petitioner] then shot the victim. The [petitioner] fired six times,
emptying his gun and hitting the victim with five of the shots, including
once in the head. He acknowledged that he was an experienced shooter.
He said that he was afraid and was defending himself.

       The [petitioner] said that afterward he was upset, scared, and
nervous. He felt sick, ran outside, and tried to vomit. After regaining his
composure, he went to his truck. He began thinking he should check on the
victim and got out of the truck. At that time, he heard two gunshots and
saw Ruffin come out of the house. The [petitioner] and Ruffin got into the
truck, and they returned to Ruffin’s apartment. There was no discussion of
what happened at the house.

       The [petitioner] said that later that night, a man “bust[ed] in the front
door” of Ruffin’s apartment. When police arrived to investigate the
altercation, the [petitioner] did not inform police of the shooting even
though he thought the victim was dead. He admitted his first statement to
police about the shooting was not truthful, but he averred that his second
statement was. He conceded that he once told police that Ruffin
accompanied him to “watch [his] back.”

      The [petitioner] acknowledged that he told Tracy that she and the
baby should get out of the house before he got there, but he maintained that
                                       6
      he had not anticipated violence. The [petitioner] stated that he did not think
      he could “beat [the victim] up” because the [petitioner] suffered from
      terminal cancer and a heart condition. The [petitioner] said he wanted the
      victim out of the house because he abused Tracy and he was selling drugs
      out of the house. The [petitioner] feared he would lose the house and Tracy
      would lose custody of her baby if the victim were caught selling drugs from
      the house.

             The [petitioner] acknowledged that Camplin was supposed to get the
      victim to come to the door, but he maintained that it was “just
      happenstance” he parked his truck where it could not be seen from the
      house. He did not know if the victim shot Ruffin or if Ruffin shot the
      victim.

              Amber Leigh Martin and Rebecca Marie Stepp, friends of Tracy,
      testified that they had previously seen the victim be violent toward Tracy.
      Martin witnessed the victim beat Tracy. Additionally, Martin said that
      when Tracy stopped living with the victim and moved into a duplex, the
      victim broke all of the windows out of the duplex. Stepp said that on one
      occasion, the victim choked Tracy, stopping only when Stepp reminded
      him that her child and Tracy’s baby were in the house. Later, the victim
      held Tracy’s baby up by the leg and threatened to hang it.

              Michelle Jones, an employee of the criminal court clerk’s office,
      testified that the victim had a prior conviction for domestic violence.
      However, the offense was not committed against Tracy.

State v. Gerry Tallant, No. W2009-00585-CCA-R3-CD, 2011 WL 303216, at *1-5
(Tenn. Crim. App. Jan. 25, 2011), perm. app. denied (Tenn. May 26, 2011) (footnotes
omitted).

       Thereafter, the petitioner filed a timely pro se petition for post-conviction relief
and, after the appointment of counsel, an amended petition was filed. In his petitions, the
petitioner argued, among other things, that he received ineffective assistance of counsel
because counsel failed to argue in the motion to suppress that: (1) he was arrested on the
murder charge although the officers lacked probable cause; (2) he was detained for a
custodial interrogation although the officers lacked probable cause; and (3) he was seized
without reasonable suspicion. The post-conviction court conducted an evidentiary
hearing over the course of five dates.



                                            7
       At the hearing, Sergeant John West of the Millington Police Department testified
that on April 23, 2007, he responded to a shots-fired call at apartment three at the
Hiawassee Apartments at 7636 Kiowa Street in Millington. Inside the apartment, he
located two revolvers, a .22 pump-action rifle, a .40 caliber pistol, and a .38 Derringer.
Sandy Ruffin claimed ownership of the revolvers and rifle, and the petitioner claimed
ownership of the .40 caliber pistol and .38 Derringer. Police noticed blood on both
revolvers and on the .40 caliber pistol. There was also blood on the kitchen counter
where they found the .40 caliber pistol. When the police arrived, the petitioner had blood
on his shirt from a recent nosebleed.

        Sergeant West testified that, after investigating the shooting that happened at Mr.
Ruffin’s apartment, police arrested Mr. Ruffin for the shooting incident, as well as for
some narcotics found in the apartment. The petitioner was not charged with anything at
that point and was allowed to leave with his guns. When the officers were investigating
the scene at the Hiawassee Apartments, they were not aware of an ongoing homicide
investigation that the Shelby County Sheriff’s Office was conducting. At some point that
night after Millington police had let the petitioner go, Shelby County officers called and
“asked if [Millington police officers] might be able to send a car back over to the scene to
try to secure [the petitioner] for them.” Shelby County officers informed them that they
were investigating a homicide in the Kerrville area and that Mr. Ruffin and the petitioner
were suspects.

       Officer James Patricio, who was working as a patrolman with the Millington
Police Department at the time of the incident, testified that on April 23, 2007, he
responded to 7636 Kiowa Street to locate the petitioner, who had been deemed a person
of interest in a homicide investigation. Officer Patricio observed the petitioner leaving
the apartment complex in his vehicle, so both he and his partner, Officer Jerry Shelton,
activated their blue lights and stopped the vehicle. Officer Patricio said that the stop was
a “felony stop” to preserve officer safety because of their knowledge that the petitioner
was armed.

       Officer Patricio testified that he covered Officer Shelton as Officer Shelton
approached the petitioner and told him to get out of the car. As the cover officer, Officer
Patricio had his gun drawn and pointed at the petitioner, but Officer Shelton did not have
his gun drawn. The petitioner cooperated and stepped out of his vehicle. Officer Patricio
told the petitioner to turn around and placed him in handcuffs. Officer Patricio did not
hear the conversation between Officer Shelton and the petitioner to know whether the
petitioner was placed under arrest when he was handcuffed, but he knew that the
petitioner was detained. Officer Shelton searched the petitioner after placing him in
handcuffs, and the search revealed the presence of drugs. On cross-examination, Officer

                                             8
Patricio stated that his training dictated that he handcuff a suspect for officer safety when
making a stop of an individual known to be armed.

       Sergeant Chris Harris of the Shelby County Sheriff’s Office testified that on April
23, 2007, he became involved in the investigation of a shooting that occurred at 9229
Kerrville-Rosemark Road in Millington. Sergeant Harris arrived to the scene around
10:00 p.m. and was there for approximately twenty minutes when he was instructed to go
to an apartment complex in Millington where the Millington police had the petitioner, the
homeowner of the homicide scene, “stopped.” When he arrived at the apartment
complex, Sergeant Harris saw the petitioner in handcuffs and the officers “had some
narcotics that they had located that was on the hood of the car.” Sergeant Harris recalled
that Sergeant Glenn Essary of the Shelby County Sheriff’s Office was the one who had
noticed the petitioner’s connection to the two scenes because Sergeant Essary had been
talking to Tracy Tallant about filing a complaint against her boyfriend who was having a
dispute with an unknown African-American man.

       Sergeant Harris testified that it was after he arrived to the scene at the apartment
complex that he learned about what had happened there “with the shots fired and the
weapons that they had recovered.” Sergeant Harris recalled that the petitioner was
booked into the Millington jail on the drug charge and in the early morning hours of April
24, 2007, was transported to the Shelby County Sheriff’s Office to be interviewed.
Sergeant Harris stated that during the first interview of the petitioner, they believed the
petitioner was a witness not a suspect. Because of such, he did not advise the petitioner
of his Miranda rights. After talking to Sergeant Harris, the petitioner was taken back to
Millington to be housed on their charges. Sergeant Harris said that he did not make the
connection between the number of bullet holes in the murder victim’s body matching the
number of expended rounds from two .357s found in Mr. Ruffin’s apartment until after
the petitioner had been stopped as he was leaving the apartment complex.

       Sergeant Harris testified that he did not have any contact with the petitioner
between the petitioner’s first statement and second statement, four days later, in which he
admitted that he shot the victim. On April 27, Sergeant Harris went to the Millington jail
to talk to the petitioner after he developed more information that heightened his
suspicions of the petitioner. While en route to interview the petitioner, Sergeant Harris
learned that a witness, Kathy McGee, wanted to talk about what had happened at the
scene of the shooting. Therefore, Sergeant Harris interviewed Ms. McGee, while
Lieutenant Kevin Helms of the Shelby County Sheriff’s Office began the interview of the
petitioner. Sergeant Harris said that Ms. McGee’s story corroborated what the police had
developed through the course of investigation.



                                             9
        Sergeant Harris testified that, after speaking with Ms. McGee, he joined
Lieutenant Helms in interviewing the petitioner. At that time, Lieutenant Helms had
been talking with the petitioner for twenty to thirty minutes. The petitioner was drinking
a Sprite, and it was “a casual, pleasant conversation.” Sergeant Harris re-Mirandized the
petitioner before taking his tape-recorded statement. Sergeant Harris recalled telling the
petitioner that they believed the petitioner’s daughter was involved and was subject to
charge. Sergeant Harris noted that the petitioner looked fine that day, as though he were
relieved to be unburdening himself by telling the truth, and seemed coherent. Sergeant
Harris did not recall the petitioner’s asking for any medication or saying that he needed
any. Sergeant Harris described that his demeanor in talking to the petitioner was “[c]alm
and laid back,” and he believed Lieutenant Helms’s to be the same. Sergeant Harris did
not bribe or threaten the petitioner or his daughter. Sergeant Harris reiterated that the
first time he spoke to the petitioner, he considered him only a witness, not a murder
suspect.

       Lieutenant Helms testified that on April 27, 2007, he and Sergeant Harris went to
the Millington jail to interview the petitioner. Lieutenant Helms read the petitioner his
Miranda rights before beginning the interview. He did not recall the petitioner’s
requesting any medication but did recall the petitioner talking about his terminal illness.
Lieutenant Helms recalled that the petitioner looked “like he had some heavy burden on
his shoulder.”

       Lieutenant Helms testified that the petitioner initially denied involvement in the
shooting, as in his first statement. However, as the interview progressed, the petitioner
began offering more truthful information, corroborating facts then known to the police. It
was at that point that Sergeant Harris joined Lieutenant Helms in finishing the interview
with the petitioner. When the petitioner offered to tell the truth, Lieutenant Helms and
Sergeant Harris got a recording device and re-Mirandized the petitioner before taking a
recorded statement.

       Sergeant Glenn Essary of the Shelby County Sheriff’s Office testified that around
8:00 or 9:00 p.m. on April 23, 2007, he received a dispatch call advising that a
complainant, Tracy Tallant, was requesting to have a person removed from her residence
at 9229 Kerrville-Rosemark in Millington. He was advised that Ms. Tallant was at the
Millington Police Department, so Sergeant Essary went there to meet her. Ms. Tallant
told Sergeant Essary that there had been a disturbance between her boyfriend, the victim,
and another party regarding money the victim owed the other party. Ms. Tallant asked
for the victim to be removed from her house because she feared for her safety and that of
her children.



                                            10
       Sergeant Essary testified that, after speaking with Ms. Tallant, he went inside the
police station to “see if there was any other information that [he] might need to be
apprised of.”     While inside, he heard Millington police officers in the field
communicating with the Millington dispatcher over the radio about a disturbance in the
Millington city limits. The officers in the field were asking the dispatcher to conduct a
warrant check on the petitioner. Sergeant Essary “found it kind of strange” to hear the
petitioner’s name on the radio while he was speaking to someone with the same last
name, and he had never known anyone with that last name before. He went back to Ms.
Tallant and asked about the name he had just heard, and Ms. Tallant said “that that was
her dad’s name but that he lived in Mississippi and was not here in Tennessee.”

        Sergeant Essary testified that Ms. Tallant led him and several other officers to the
Kerrville address where she had lodged the complaint. Ms. Tallant told Sergeant Essary
that her father, the petitioner, owned the home, but she lived there. She asked the officers
to search the house for drugs and signed a consent to search form. When they got to the
house, Sergeant Essary saw that the front door of the house had been kicked in. He
entered the house and discovered the deceased victim on the floor. At some point, the
officers on the scene started communicating with the Millington Police Department
again. Sergeant Essary asked Millington police to try to locate the petitioner as a person
of interest in the homicide. At that point, Sergeant Essary had no knowledge of what was
going on at the other scene with the petitioner, or that the petitioner had been released
from the other scene.

       Sergeant Essary testified that he later heard that Millington police had located the
petitioner. He said that when he put out the call to locate and detain the petitioner, he did
not know that the petitioner was involved in the victim’s death; all he knew was that he
had just conversed with Ms. Tallant and that the petitioner owned the house where the
victim was found.

       On cross-examination, Sergeant Essary testified that it was routine to try to locate
and talk to owners of property where homicides have occurred. On redirect examination,
Sergeant Essary stated that, at the time he contacted Millington police and asked them to
locate the petitioner, he did not believe there was probable cause to arrest him for the
homicide but that “there was enough reasonable suspicion to have him detained as a
person of interest so that the detectives could speak to him.” At that point, Sergeant
Essary had information that the petitioner was in Mississippi, not Tennessee, and that he
was the owner of the house where a homicide took place.

       Lieutenant Scott Wright of the Shelby County Sheriff’s Office testified that on
April 23, 2007, he worked the Kerrville-Rosemark scene where the victim was murdered.
He was aware that Ms. Tallant had been at the police station and directed officers to the
                                             11
murder scene. The officers were interested in finding “anybody connected to that house
in any way.” When he arrived on the scene, he had no reason to think that the petitioner
had been involved in the homicide. He recalled speaking with Sergeant Essary, who
suggested that they talk to the petitioner. Lieutenant Wright learned that Millington
police had the petitioner, so he sent two detectives to talk to him. On cross-examination,
Lieutenant Wright emphasized that, when a homicide victim is found in a house, it is
important and routine to speak with the homeowner. Lieutenant Wright acknowledged
that, at this point in the investigation, he did not believe they had probable cause to arrest
the petitioner for the homicide but thought that they had reasonable suspicion to stop the
petitioner based on his connection to the house.

       Sergeant Raymond Sides with the Shelby County Sheriff’s Office testified that he
responded to the scene at 9229 Kerrville-Rosemark during the late evening hours of April
23, 2007. He spoke with Tracy Tallant at the house, who told him that the victim had
gotten into an argument with another man over “a drug deal gone bad.” She described
the other man as bald-headed and African-American. Sergeant Sides recalled hearing the
petitioner’s name mentioned at the scene, but he did not have any reason to believe that
the petitioner was involved in the victim’s murder. He did not know why the petitioner
was stopped in Millington at the request of Shelby County detectives. Sergeant Sides
acknowledged that he questioned the petitioner in the early morning hours of April 24,
2007. During the interview, the petitioner was not advised of his Miranda rights as he
was being interviewed only as a witness.

        Officer Jerry Shelton, who worked with the Millington Police Department at the
time of the offense, testified that on April 23, 2007, the Millington police had information
regarding the petitioner’s location when they received notification from the Shelby
County Sheriff’s Office that the petitioner was a person of interest in an investigation.
Officer Shelton was not privy to the exact wording of Shelby County’s request. Officer
Shelton had, earlier, responded to the scene of Sandy Ruffin’s apartment and observed
another officer tell the petitioner that he was free to leave. Officer Shelton arrived to the
traffic stop of the petitioner’s vehicle after Officer Patricio had already pulled over the
petitioner. He recalled that they “performed a high risk for a felony traffic stop and
removed [the petitioner] from the vehicle and detained him.” A search was conducted of
the petitioner, and methamphetamine was discovered in his possession.

       On cross-examination, Officer Shelton testified that the Millington dispatcher
issued a general dispatch that the petitioner was to be stopped or detained. When they
stopped the petitioner, they were aware that he was in possession of firearms and,
therefore, the traffic stop was high risk. Officer Shelton testified that, in a high risk stop,
they are trained to search the suspect in order to ensure the suspect is not armed. He
acted in accordance with his training and, as a result of the search, found drugs on the
                                              12
petitioner. The petitioner was arrested for drug possession but not for anything related to
the request from Shelby County officers. The petitioner was booked into the Millington
jail and processed for possession of methamphetamine. On redirect, Officer Shelton
acknowledged that, at the time of the traffic stop, he and Officer Patricio were aware that
the petitioner had a gun permit. He reiterated that he searched the petitioner for safety
reasons.

        The petitioner’s trial counsel testified that he could not recall why, in his motion to
suppress, that he failed to allege that the petitioner was arrested without probable cause
on April 23, 2007, when he was driving away from Mr. Ruffin’s apartment complex.
Counsel surmised, “If [the issue] wasn’t present maybe I wouldn’t have made it. I don’t
have an independent recollection of that, of trying to leave it out.” Counsel agreed that
the issue concerning the detention was “something that [wa]s certainly plausible to raise,”
and that “[a]ny warrantless arrest like that you can bring as per se unreasonable so it’s not
unusual to raise those issues.” However, counsel noted that in the motion to suppress,
they alleged that there was no “probable cause or reasonable cause” to detain the
petitioner relative to the first degree murder. He reiterated, “We had a suppression
hearing and raised the issues that we thought we had plausibly to argue and the judge just
overruled us.”

       Counsel recalled that the petitioner gave two statements to police. In his first
statement, the petitioner denied involvement and, in his second statement, he supported
and corroborated his claim of self-defense. Counsel elaborated that they did not push for
suppression of the petitioner’s statements too much because they thought the jury was
inevitably going to find out that the petitioner was the shooter and they wanted to be able
to explain. However, counsel thought that the defense “[m]aybe” would have had a
better chance of getting an acquittal if the petitioner’s statements had been suppressed,
and he agreed that suppressing the statements would have prevented a jury from hearing
inconsistencies in the petitioner’s statements. Counsel was unable to say whether he
would have put the petitioner on the stand to testify had the statements been suppressed.
He was uncertain that suppressing the statements would have put the defense in a better
position because the statements explained the petitioner’s actions in case the petitioner
decided not to testify. He said that they would have “had to weigh it out and see how the
proof came in.”

       Counsel was then questioned about why he did not argue that, even if the
petitioner was not arrested without probable cause, he was detained for purposes of
conducting a custodial interrogation when he was stopped while leaving Mr. Ruffin’s
apartment complex. Counsel responded, “I know that we amended and supplemented the
petition. We raised Fourth, Fifth, and Sixth Amendment grounds and we conducted a
hearing. And if we left something out of it that was material, I couldn’t see how that
                                              13
would be intentional.” Counsel was further questioned about why he did not argue as an
additional alternative that the petitioner was stopped without reasonable suspicion when
he was leaving Mr. Ruffin’s apartment complex. Counsel responded, “If it’s not in the
record I just didn’t make it. Maybe I didn’t think the facts supported it. I’m just not
sure.”

       Asked why he did not have the petitioner testify at the suppression hearing in
support of his allegation that he was questioned before receiving his Miranda rights,
counsel responded, “I rarely will call my defendant to the stand during the suppression
hearing. Sometimes I do but rarely because I never know what they’re going to say.”
Counsel could not recall whether he spoke with the petitioner about the petitioner’s
interaction with the police during the time period of April 23, when he was detained,
through April 27, 2007, when he gave the second statement.

        Counsel testified that he had practiced law for thirty-two years and had tried
“[m]any, many, many, many, many” jury trials, including “a whole lot” of murder trials.
He said that “[o]ne of the ancillary benefits” of a motion to suppress hearing is that “you
get officers on the stand to testify so you can ask them questions and find out more what
they’re going to say down the road for the trial.” Counsel agreed that, his having a
motion to suppress hearing probably meant that he was trying to have the petitioner’s
statements suppressed. However, counsel said that there have been “a number of times”
in his career where he has allowed his client’s self-serving statement to be admitted into
evidence and the petitioner’s self-serving statement “was that type of statement.”
Counsel stated that he thought the petitioner’s second statement to police mirrored his
trial testimony. He thought the second statement fit with the defense’s theory of the case
and that it showed that the petitioner was trying to be forthcoming after initially denying
involvement.

        The petitioner’s co-counsel testified that she could not remember what the
petitioner told her about his interaction with police on the night he was arrested or from
April 23 through April 27. Co-counsel could not recall the defense’s specific arguments
at the hearing seeking to suppress the petitioner’s statements. When further pressed on
why the defense did not argue that the petitioner was arrested without probable cause
when he was leaving Mr. Ruffin’s apartment complex on April 23, 2007, co-counsel
stated:

      I’m sure we talked about okay, here’s the homeowner, they’re pulling him
      over. Where are we going at in this motion to suppress in this statement?
      And I’m sure we looked at that. Do I remember us doing that? No. But I
      know that when we have motions, that we do rely on what we’ve got in
      discovery and what our client said in order for us to make a decision about
                                            14
       which way we’re going on it. So do I remember us doing that? No. Out of
       habit out of the way we process things, I think we would have considered
       that.

       Asked if the defense might have missed some of the issues it could have raised
regarding the petitioner’s detention, co-counsel said, “I’m thinking we would have
brought out the issues we meant to bring out.” Co-counsel stated that the defense
discussed the petitioner’s statements and was comfortable with those statements coming
into evidence regardless of the outcome of the motion to suppress. She said that they felt
comfortable enough in their defense that even if the statements were not suppressed, they
were prepared to move forward. She could not recall whether the defense would have
preferred to have the statements suppressed, elaborating:

       I can’t remember if this was a situation where we really wanted it. I mean,
       I feel like we certainly knew we could live with it and could be that we
       were very comfortable. I just don’t recall. I mean, it may have been that
       the suppression was offering such a good opportunity to find out some
       more, get a little more discovery. I mean, that may have been a motivator
       behind it. It may not have been. It may have been we wanted to see if we
       could get it out and that way it’s out and we could start afresh or whatever.

              ....

              . . . There could have been a lot of reasons why we did it and I just
       can’t specifically recall which strategic decision was made on that.

        Co-counsel testified that she did not know whether she would have encouraged the
petitioner to testify had his statements to police been suppressed. She said, “If nothing
else came in to show self-defense,” the defense “certainly would have wanted him more
so to testify . . . [t]o fill that void.”

       The petitioner testified that he told counsel that he shot the victim in self-defense.
He did not recall counsel’s saying that they were going to try to suppress his statements
to police. He denied that either counsel or co-counsel discussed with him about testifying
at the motion to suppress hearing. The petitioner agreed that counsel asked him about his
being taken into custody at the apartment complex. He recalled giving counsel the
following account:

       Ruffin fired the shots out the door up through a balcony. . . . And the
       police came and they checked my weapon, gave it back to me and carried
       him to jail. And then when I left they pulled me over and searched me. . . .
                                             15
       [T]hey found some meth on me and they arrested me and carried me to the
       Millington jail.

However, the petitioner acknowledged that he did not “break it down into details as far as
whether they found the meth first or whether they handcuffed [him] first.” The petitioner
stated that co-counsel never talked to him about his interaction with police during the
time period of April 23 through April 27, 2007. He said that counsel did not question
him about the details of the detectives interrogating him on April 27. The petitioner
testified that he would have testified at the motion to suppress hearing if counsel had
advised him that it was in his best interest to do so.

       The petitioner testified that when the Millington police officers arrived to Mr.
Ruffin’s apartment on April 23, they took him into the kitchen and unloaded his .40
caliber pistol. He told the officers he had a permit for the gun, and they gave it back to
him and told him he was free to go. Subsequently, he left to go to the store, and when he
pulled off in front of the next apartment complex, he saw blue lights in his rearview
mirror. The petitioner pulled over and began to exit his truck, but the officer told him to
stay inside. The officer walked up to the petitioner’s truck, opened the driver’s side door,
and asked the petitioner “where [his] weapon was.” The petitioner told the officer that
his weapon was lying on the console. The officer asked the petitioner to get out of the
truck and then walked him to the back of the truck. As they walked, the officer “kind of
held [the petitioner] by the shoulder.” The petitioner said that he did not feel free to leave
when the officer pulled him over.

       The petitioner testified that the officer asked if he had anything in his pockets the
officer should know about before patting him down, and the petitioner told the officer he
had methamphetamine in his pocket. The officer retrieved the methamphetamine and
then handcuffed him. At that point, the officer told him he was under arrest. He did not
recall whether the officer read him his Miranda rights because he was “in a state of
shock,” but he assumed the officer did. The petitioner was placed in a squad car and
transported to the Millington jail where he was booked on a drug charge.

       The petitioner claimed that, at the time of his arrest, he was suffering from a
number of health problems, including cancer, high blood pressure, stress, depression, and
leg pain from a prior gunshot wound to his foot. He had been without his medication for
two days. He claimed that he talked to the jail staff about contacting his family to get his
medications, but not at first.

       The petitioner testified that, during the early morning hours of April 24, 2007, he
was transported from the Millington jail to the Shelby County Sheriff’s Office where he
was questioned about the victim’s death and gave a statement. He was not advised of his
                                             16
Miranda rights before being questioned, but the officers were “real nice” during the
interview and made no threats or promises. He did not think that he was in handcuffs
during the statement. After he gave the officers a statement, he was transported back to
the Millington jail. He allowed an officer to swab his mouth for a DNA sample.

        The petitioner testified that, upon his return to the Millington jail, he was “starting
to feel pretty rough.” He was experiencing dizziness, headaches, and leg pain. He called
his family from the Millington jail and asked them to bring his medication. The
petitioner recalled that, on April 25, he slept in a small gymnasium area at the jail
because it was crowded. He was fed three meals a day. By April 26, his blood pressure
had become elevated, and he had not received his medications. He had not been taken to
see a judge.

        The petitioner testified that, on April 27, Lieutenant Helms came to the Millington
jail to speak with him about the victim’s death. According to the petitioner, Lieutenant
Helms told him that his daughter had “been caught in a couple of lies” and threatened to
arrest her. The petitioner said that he told Lieutenant Helms to “get [him] a Coke . . . and
[he would] tell [him] what happened.” The petitioner claimed that he had not yet been
read his Miranda rights at this point. Lieutenant Helms called Sergeant Harris into the
room, and the officers advised him of his rights. The petitioner gave the officers a tape-
recorded statement.

       The petitioner testified that he was not feeling well, but the officers were nice to
him during the interview. He claimed that when he asked Lieutenant Helms about his
medications, Lieutenant Helms said that he would try to get his medications after he gave
a statement.

       On cross-examination, the petitioner acknowledged that, when he was pulled over
outside the apartment complex, the officers did not point guns at him or tell him he was
under arrest. He was not handcuffed and placed under arrest until after the officer found
methamphetamine in his pocket.

      On redirect examination, the petitioner stated that he could not say for certain
whether he was already in handcuffs when the officer retrieved the methamphetamine
from his pocket. The petitioner claimed that he only gave a statement to get his
medications.

        Following the conclusion of the hearing, the post-conviction court entered a
written order denying relief. The court found that the police had grounds to consider the
petitioner a person of interest as the owner of the house where his daughter and the victim
lived and where the murder took place. The petitioner was not placed under arrest or put
                                              17
in handcuffs when they asked him to exit the car. The court found that officers had
reasonable suspicion to investigate why the petitioner was in town and what he knew
about the house and the killing; therefore, the stop was valid. The court further found
that, because of their knowledge of the petitioner’s possession of firearms from the earlier
incident, it was reasonable for the officers to ask for weapons when they got the
petitioner out of the car and to also ask if he had anything else on his person. The
petitioner said that he had methamphetamine. The court determined that this provided
probable cause to arrest the petitioner on a drug charge. The court found that the
petitioner was not arrested until he turned over the drugs and that he was not arrested for
the murder. The court noted that defense counsel argued that the stop, seizure, and arrest
were unconstitutional and found, as it did at the suppression hearing, that the stop,
seizure, and arrest were legal based on reasonable suspicion as to the homicide and then
probable cause as to the drugs. The court determined that counsel adequately argued the
motion to suppress, and that the proof in the case was overwhelming.

                                       ANALYSIS

       On appeal, the petitioner argues that he received ineffective assistance of counsel
because counsel failed to raise certain issues in the motion to suppress. Specifically, the
petitioner asserts that counsel should have argued that he was: (1) arrested on the murder
charge although the officers lacked probable cause; (2) detained for a custodial
interrogation although the officers lacked probable cause; and (3) seized without
reasonable suspicion.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). 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.
                                            18
Washington, 466 U.S. 668, 687 (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.

        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. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). 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.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       Again, the petitioner argues that counsel should have raised in the motion to
suppress his statements that he was: (1) arrested on the murder charge although the
officers lacked probable cause; (2) detained for a custodial interrogation although the
officers lacked probable cause; and (3) seized without reasonable suspicion.

      The record shows that counsel in fact attempted to have the petitioner’s statements
suppressed based on his seizure and detention being illegal. The petitioner essentially
                                            19
argues that counsel did not try hard enough, or counsel would have successfully
suppressed the statements. True, counsel’s argument largely focused on the Miranda
issues surrounding the statements, but counsel did raise the issue of whether the seizure
and detention were legal, and the trial court found no basis to suppress the statements
given by the petitioner. Counsel rendered effective representation, even if imperfect.

       Regardless, the arrest of the petitioner was valid; therefore, the issues the
petitioner asserts that counsel should have raised would not have led to relief. The post-
conviction court found that the police had reasonable suspicion to investigate why the
petitioner was in town and what he knew about the killing that occurred at his house,
making the stop valid. Because the officers had knowledge that the petitioner was in the
possession of firearms, it was reasonable to ask for weapons and if he had anything else
on his person when they had him exit his truck. The petitioner volunteered that he had
methamphetamine, which then led to his arrest. Accrediting the post-conviction court’s
resolution of any factual discrepancies, when the petitioner was stopped, the officers did
not pull guns on him, handcuff him, or say that he was under arrest. The petitioner
himself testified that he was not handcuffed or placed under arrest until after the
methamphetamine was recovered. The post-conviction court found that once the police
discovered the methamphetamine, reasonable suspicion gave way to probable cause to
make an arrest. The evidence does not preponderate against the post-conviction court’s
findings.

       The petitioner asserts that, in the alternative, should this court find there was
probable cause to arrest him, it should conclude there was no probable cause to detain
him for custodial interrogation. However, as discussed earlier, the petitioner was
detained with reasonable suspicion for a witness interview regarding the homicide.
However, in the process of securing the petitioner for this interview, to protect their
safety based on their knowledge of the petitioner’s possession of guns, officers developed
probable cause to arrest the petitioner on a drug charge. The same probable cause that
supported the petitioner’s arrest supported his detention for custodial interrogation.

       In any event, even if counsel’s performance was somehow deficient, we have
thoroughly reviewed the testimony and evidence and conclude that the petitioner has
failed to show prejudice. As the post-conviction court found, the State’s proof at trial
was strong. The proof showed that Tina Camplin accompanied the petitioner and Mr.
Ruffin to the petitioner’s daughter’s house, so the petitioner and Mr. Ruffin could “kick
[the victim’s] ass” for mistreating the petitioner’s daughter. Gerry Tallant, 2011 WL
303216, at *1. After the petitioner went inside, Ms. Camplin heard several gunshots in
rapid succession and then the petitioner returned to the vehicle appearing to be “in
shock.” Id. Two of the fatal bullets taken from the victim matched the petitioner’s
revolver. Id. at *3. There was no evidence that the petitioner made any attempt to
                                           20
contact police or summon aid for the victim, and he in fact failed to inform officers that
he had been involved in an alleged self-defense killing when he encountered officers later
that evening. There is no reasonable probability that the result of the proceeding would
have been different.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.

                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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