        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Knoxville August 21, 2013

              RAY JUNIOR TURNER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                    No. 2007-D-3535    Cheryl Blackburn, Judge


                 No. M2012-02311-CCA-R3-PC - Filed October 1, 2013


Petitioner, Ray Junior Turner, was convicted of one count of conspiracy to deliver 300 grams
or more of cocaine and one count of delivery of 300 grams or more of cocaine. Each of the
offenses is a Class A felony. See Tenn. Code Ann. § 39-17-417(j). The trial court sentenced
petitioner to sixty years for each conviction as a career offender to be served concurrently.
He unsuccessfully appealed his convictions and sentences. See State v. Kenneth Miller and
Ray Junior Turner, No. M2008-02267-CCA-R3-CD, 2010 WL 1644969, at *1 (Tenn. Crim.
App. Apr. 22, 2010). Petitioner filed the current petition for post-conviction relief in which
he alleged that he received ineffective assistance of counsel at trial. Following an evidentiary
hearing, the post-conviction court denied relief. On appeal, petitioner argues that he received
ineffective assistance of counsel when trial counsel: (1) failed to properly investigate
petitioner’s case and communicate with petitioner; (2) failed to file a motion to suppress
wiretap evidence; and (3) failed to properly inspect all discoverable evidence introduced at
trial. Following our review of the parties’ arguments, the record, and the applicable law, we
affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

George D. Norton, Jr., Selmer, Tennessee, for the appellant, Ray Junior Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                                         I. Facts

                                         A. Trial

       This court summarized the facts presented at trial in our opinion addressing
petitioner’s direct appeal:

             Agent Shelly Smitherman, with the Tennessee Bureau of Investigation
      (“TBI”), testified that she was the agent in charge of the investigation
      involving [co-defendant Miller and petitioner], which began in December
      2005. Agent Smitherman obtained a wiretap order allowing her to intercept
      [co-defendant’s and petitioner’s] phone calls; she explained that agents in the
      wireroom listened to the phone calls and that they would relay pertinent
      information to officers in the field conducting surveillance of [co-defendant
      and petitioner].

              Through intercepting these phone calls, it was determined that a drug
      deal was to take place on March 24, 2006, at the Rivergate Mall. [Co-
      defendant] Miller was to deliver a kilogram (“kilo”) of cocaine to an
      unidentified individual coming from Kentucky. Police conducted surveillance
      of [co-defendant] Miller throughout the day. At 11:34 a.m. on this day, [co-
      defendant] Miller phoned [petitioner] and asked him to “come and drop it off.”
      TBI Special Agent Steve Talley testified that Kavares Davis (“Davis”) arrived
      at [co-defendant] Miller’s apartment at 1:34 p.m. At 1:47 p.m., officers
      observed [petitioner], along with two other individuals, arrive at [co-
      defendant] Miller’s apartment. [Petitioner] went inside the residence through
      the garage door. After his arrival, the blinds were closed. A few moments
      later, the blinds were reopened, and [co-defendant Miller, petitioner,] and
      Davis exited the apartment and stood out front talking for a time. Around 2:50
      p.m., [petitioner] and Davis left the residence.

             Around 6:30 p.m., officers observed [co-defendant] Miller leave his
      apartment in his black Chevrolet Impala, heading toward the Rivergate area.
      When he arrived at the mall, [co-defendant Miller] went inside the food court
      area and purchased some cookies. He received a call from Davis and then
      returned to his vehicle. [Co-defendant Miller] drove to the food court
      entrance, and a man got inside the vehicle. They drove around to the other
      side of the mall and parked near a green Pontiac Grand Am with Kentucky

                                            -2-
tags. Detective Herbert Kajihara, with the Twentieth Judicial Drug Task
Force, saw the man who had been in [co-defendant] Miller’s car walk back
toward the mall. After [co-defendant] Miller left, [Detective] Kajihara
continued to observe the Kentucky vehicle. He then saw the same man exit the
mall, along with another male and a female juvenile, and get inside the car.
The individuals were carrying packages.

        Officers followed the green Pontiac to a gas station. At the gas station,
an individual later identified as Ned Wayne Thompson (“Thompson”), got out
of the vehicle and placed something that looked like a bag in the trunk. When
Thompson left the gas station, the vehicle proceeded onto Interstate 65.
Although radar was not used, Officer Michael Wilson of the Metropolitan
Police Department paced the vehicle traveling 80 miles per hour in a 70 mile-
per-hour zone. Officer Wilson stopped the vehicle. The State did not want to
compromise the wiretap investigation, so the officers proceeded under the
auspice that they were stopping the individuals for a traffic violation, and they
obtained probable cause to search the vehicle due to a K-9 alert. Hidden
behind carpeting inside the trunk, officers discovered two separately packaged
bricks of cocaine, weighing approximately two kilograms.

        Officers then procured search warrants for [co-defendant Miller’s and
petitioner’s] residences. During the search of [co-defendant] Miller’s
residence, police recovered: one kilo of cocaine from the kitchen; 124.5 grams
of cocaine found inside a shoe box in the bathroom; $13,000 in cash from the
safe; a notebook with drug ledgers, including names; some nine millimeter
rounds for a handgun; and “gunk cans” containing cocaine. Officers also
found items used to prepare the cocaine for resale-digital scales, a “kilo press,”
plastic baggies, and a “cutting agent” used to break down cocaine. [Co-
defendant] Miller also used a video camera to monitor the parking lot in front
of his apartment. At [petitioner’s] residence, Agent Talley was in charge of
collecting evidence. Evidence collected included five notebooks containing
drug ledgers found in the kitchen garbage can, digital scales, a vacuum bag
sealer, two loaded handguns, a “kilo press,” and a “cutting agent.”

        Kavares Davis, initially a co-defendant in this case, testified that he had
entered a guilty plea to possession of .5 grams or more of cocaine and received
an eight-year sentence under the terms of the agreement. Davis affirmed that
[petitioner] was his uncle and that [co-defendant] Miller was his cousin. [Co-
defendant] Miller supplied him with cocaine at the time of his March 2006
arrest and had done so “off and on” for two or three years. In November or

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December 2005, Davis told [co-defendant] Miller that he did not like dealing
with [petitioner] because of his high prices, $20,000 for a kilo of cocaine;
however, [co-defendant] Miller continued to deal with [petitioner].

       Davis went to [co-defendant] Miller’s apartment on the evening of
March 23, 2006. [Petitioner] was already there; he had brought three bricks
or kilos of cocaine for [co-defendant] Miller, which were sitting on the table.
[Co-defendant] Miller said one of the kilos was “bad,” and [petitioner]
promised to replace it with another one the next day. [Petitioner] took the
“bad” kilo with him when he left.

        According to Davis, [petitioner] showed up the following morning with
two other men. Davis was already there because he and [co-defendant] Miller
were supposed to go get something to eat. Davis went downstairs to let
[petitioner] in through the garage. [Petitioner] went upstairs, but Davis stayed
downstairs. Davis testified that [petitioner] was dropping off the new kilo of
cocaine, which he had in his arms. [Co-defendant Miller and petitioner] then
came back down to the basement, and all three men exited and stood outside
talking for a while.

       Later that day, [co-defendant] Miller asked Davis to follow him to
Rivergate Mall to meet Thompson, aka “Kentucky.” Davis phoned [co-
defendant] Miller who was in the food court area of the mall; [co-defendant]
Miller stated he was “waiting on them to get done eating.” Davis made plans
to meet [co-defendant] Miller at a Mapco gas station following the exchange.
After they met at the gas station, they proceeded to [petitioner’s] residence,
where only [co-defendant] Miller went inside. About five minutes later, he
came back out to the car and grabbed a bag, which he stuffed in his coat, and
went back inside. Later that evening, Davis and [co-defendant] Miller were
arrested at a Mexican restaurant in Hermitage.

        Previously, on March 10, 2006, Agent Smitherman saw Davis place a
trash bag in the dumpster of [co-defendant] Miller’s apartment complex. Agent
Smitherman pulled the trash and found three empty plastic “kilo wrappers,”
rubber gloves, a “cutting agent,” and a sheet of paper showing a drug ledger.
Additionally, on March 10, officers in the wireroom began listening to
numerous conversations involving [co-defendant Miller and petitioner],
wherein [co-defendant Miller and petitioner] used code words for exchanging
drugs and money.



                                      -4-
               Following the conclusion of the proof, the jury found both [co-
       defendant and petitioner] guilty of conspiracy to deliver 300 grams or more of
       cocaine and delivery of 300 grams or more of cocaine. [Co-defendant] Miller
       was also found guilty of possession of 300 grams or more of cocaine with the
       intent to deliver.

              A sentencing hearing was held on July 16, 2008. The trial court
       sentenced [petitioner] to two concurrent terms of sixty years as career
       offender. As for [co-defendant] Miller, the trial court enhanced his sentence
       on each conviction to forty years as a Range II, multiple offender. The trial
       court then ordered all three of these sentences to be served consecutively to
       one another, for a total effective sentence of one hundred and twenty years.

Kenneth Miller and Ray Junior Turner, 2010 WL 1644969, at *1-4.


                                B. Post-Conviction Hearing


      Petitioner filed his petition for post-conviction relief on June 9, 2011. The post-
conviction court held an evidentiary hearing on July 25, 2012.

        Trial counsel testified that he was retained to represent petitioner in Davidson County
Criminal Court after petitioner’s arraignment and general sessions court dates. Trial counsel
further testified that, four to six weeks after being retained as counsel, he attended a co-
defendant’s hearing regarding a motion to suppress wiretap evidence. Trial counsel did not
join the motion because co-defendant’s counsel had filed it and the State had responded to
it before he was hired. However, he attended the hearing to ascertain the outcome.

       Even though the wiretap evidence was a large part of the State’s evidence against
petitioner, trial counsel testified that he decided a similar motion to suppress for petitioner
would be unsuccessful. Trial counsel testified that he determined petitioner did not have
standing to challenge the wiretap issue. Trial counsel also decided that even if petitioner had
standing, he would be unsuccessful on a motion to suppress the wiretap evidence because the
evidence in petitioner’s favor was insufficient to support the motion and because the co-
defendant’s motion was denied after the trial court heard the same testimony that trial counsel
would have used to support petitioner’s motion. Trial counsel determined that the court
would have found that the wiretap evidence was relevant and that Judge Monte Watkins, who
issued the wiretap order, was a neutral and detached magistrate, even though Judge Watkins
had previously represented petitioner’s co-defendant in a prior unrelated case.


                                              -5-
        At the time of the decision, trial counsel evaluated the discovery he had received, the
application for the wiretap, the wiretap tapes, and the applicable case law and procedures.
Trial counsel also spoke with a police officer about the officer’s surveillance of petitioner
prior to obtaining the wiretap order. The police officer told trial counsel that the surveillance
was only partially successful, and trial counsel recognized that at times during the police
investigation there were other successful investigative methods that were used. Although
trial counsel could not remember clearly, he was sure that he considered whether the State
had properly met its burden required to obtain a wiretap order.

        Trial counsel testified that he did not raise the wiretap issue in the trial court but raised
it on appeal, even though he did not think the appeal would be successful. He believed that
the issue was properly raised because the co-defendant had raised the issue at trial, and the
two cases were appealed simultaneously. Trial counsel admitted that this court determined
there was an insufficient record from the trial court to decide the wiretap issue in petitioner’s
case. Trial counsel also stated that had the wiretap evidence been suppressed, there might
have been a different outcome at trial.

       Trial counsel further testified that he considered filing a motion to sever petitioner’s
case from his co-defendant’s case. Despite the fact that trial counsel thought the trial would
have gone better if the trials were severed, trial counsel testified that he did not file a motion
to sever because he did not think there was a sufficient legal basis for severance based on
case law. In addition, trial counsel testified that he discussed his trial strategy with petitioner.
He told petitioner that his being present when other people engaged in a drug transaction was
insufficient to prove that petitioner was involved in the drug transaction or to prove a
conspiracy.

       Trial counsel testified that he properly engaged in discovery and investigation of
petitioner’s case. Although trial counsel was unable to recall whether he interviewed Judge
Watkins, the judge who issued the wiretap, he interviewed all of the government’s witnesses
either prior to trial or, in the case of corroborating witnesses, on the day of trial. Trial
counsel examined the tangible evidence in the case, including the set of scales. Even though
he did not remove the scales from their box, he opened the box and looked at the scales.
Petitioner’s wife explained the scales’ origins, purposes, and uses to trial counsel. Trial
counsel testified that he did not object to the scales based on chain of custody because there
was an insufficient legal basis for an objection. Trial counsel also testified that after a
substance fell out of the scales during trial, he did not object to the substance being field-
tested in front of the jury but argued that the scales could not be properly attributed to
petitioner because they were found at the residence of petitioner’s wife, not petitioner’s
residence.



                                                 -6-
       On cross-examination, trial counsel testified that he had been practicing law and
specializing in criminal defense since 1998. He had been involved in twenty-five to thirty
felony jury trials in both state and federal courts prior to representing petitioner. Trial
counsel did not know petitioner before he was retained in this case.

       Trial counsel testified that petitioner’s wife told him that the scales in this case were
purchased for her son to use in a school project. Petitioner’s wife also told trial counsel that
petitioner did not reside at the wife’s residence but only stayed there on occasion. Trial
counsel discussed these statements with petitioner.

       Trial counsel further testified that he had the necessary information when deciding
whether to file a motion to suppress the wiretap. Trial counsel testified that he and the co-
defendant’s trial counsel determined that the only legal ground for a motion to suppress the
wiretap was that it was not issued by a neutral and detached magistrate because Judge
Watkins had represented the co-defendant in a previous case. This was the only ground that
the co-defendant alleged in his motion to suppress the wiretap. Trial counsel testified that
petitioner denied that his recorded conversations with co-defendant referred to drugs. Trial
counsel also testified he had the police reports of the officers prior to trial and was familiar
with the investigation and the evidence to be provided by the officers. He admitted that he
did not expect illicit substances to be found in the scales.

         Petitioner testified that he met with trial counsel three times prior to trial. At the first
meeting, petitioner retained trial counsel and discussed how to investigate the case. At
another meeting, they discussed the evidence, or lack thereof, the State had against petitioner.
Petitioner testified that trial counsel told him that the police did not have a valid wiretap and
that counsel never played the wiretap tapes for the petitioner. Petitioner also testified that
trial counsel did not review the discovery in the case with the petitioner or prepare him for
trial or appeal. Although petitioner admitted that trial counsel explained the issue of
severance, he stated that he still thought the trials had been severed. Petitioner acknowledged
receiving a letter from trial counsel explaining that he could not suppress the wiretap
evidence. Petitioner also admitted that trial counsel discussed petitioner’s right to testify at
trial, the potential juror list, and the identity of the State’s witnesses prior to trial.

       Following the hearing, the post-conviction court denied the petition by written order.
With respect to trial counsel’s investigation of the case and communication with petitioner,
the post-conviction court credited trial counsel’s testimony and found that petitioner had
conceded that counsel had discussed the case with petitioner on three separate occasions.
The post-conviction court took judicial notice that there were multiple hearings and
discussion dates throughout the case where counsel met with the petitioner in the courthouse.
In addition, counsel was unsurprised by evidence aside from the substance inside the scales’

                                                 -7-
box, of which neither the State nor the defense was aware until trial. Regarding the motion
to suppress the wiretap evidence, the post-conviction court concluded that trial counsel
attended the co-defendant’s motion to suppress and considered petitioner’s evidence before
deciding the law did not support a motion to suppress for petitioner. The post-conviction
court determined that petitioner failed to show that trial counsel was ineffective.

                                         II. Analysis

       Petitioner argues that his trial counsel provided ineffective assistance by: (1) failing
to properly investigate petitioner’s case and communicate with petitioner; (2) failing to file
a motion to suppress wiretap evidence; and (3) failing to properly inspect all discoverable
evidence, specifically the set of scales, introduced at trial. The State responds that the post-
conviction court properly denied the petition for post-conviction relief. We agree with the
State.

                                   A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his
or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).



                                              -8-
        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

       To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).




                                               -9-
                                     B. Petitioner’s Claims

                  1. Failure to Properly Investigate Petitioner’s Case and
                                Communicate with Petitioner

       The post-conviction court concluded that trial counsel adequately prepared for trial
and communicated with petitioner. This determination is supported by the record. The
record reflects that trial counsel met with petitioner on three separate occasions, and the post-
conviction court took judicial notice that there were multiple hearings and discussion dates
where petitioner and trial counsel met prior to trial. Petitioner testified that trial counsel
discussed with him the jury selection process, the State’s testifying witnesses, and
petitioner’s Fifth Amendment right to testify. He also stated that trial counsel sent him a letter
explaining why he was not filing a motion to suppress the wiretap evidence.

       The post-conviction court specifically credited trial counsel’s testimony that he
discussed his trial strategy regarding the motion to sever with petitioner. This factual finding
was based on a credibility determination and will not be disturbed by this court. Dellinger,
279 S.W.3d at 292. Trial counsel also spoke with each of the testifying witnesses prior to
or on the day of trial and had the police reports of all testifying and non-testifying police
officers. Moreover, trial counsel examined the tangible evidence at issue in the case. To
prove that counsel’s performance was deficient, petitioner must establish that his attorney’s
conduct fell below an objective standard of “‘reasonableness under prevailing professional
norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn, 202 S.W.3d at 116). Petitioner has
failed to show deficient performance.           Trial counsel’s preparation for trial and
communication with petitioner were not ineffective.

                 2. Failure to File a Motion to Suppress Wiretap Evidence

       Petitioner contends that trial counsel’s failure to file a motion to suppress the wiretap
evidence constituted deficient performance because there were investigative procedures other
than a wiretap available to law enforcement officers. The applicable statute states that a
judge may authorize a wiretap if the judge determines, in part, that “[n]ormal investigative
procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried
or to be too dangerous.” Tenn. Code Ann. § 40-6-304(c)(3) (2012). Trial counsel
recognized that periodically during the investigation, the police had successfully used
investigative procedures other than the wiretap. However, because there were also periods
during the investigation where other investigative procedures had been unsuccessful, trial
counsel decided that petitioner’s motion to suppress the wiretap evidence would be
unsuccessful. Trial counsel testified that he and the co-defendant’s trial counsel both
determined that the only legal ground for a motion to suppress the wiretap was that it was not

                                              -10-
issued by a neutral and detached magistrate. Petitioner’s co-defendant filed a motion to
suppress the wiretap evidence claiming that Judge Watkins was not a neutral and detached
magistrate because he had represented the co-defendant in a previous case. Trial counsel
attended the co-defendant’s hearing on the motion to suppress the wiretap evidence to assess
the likelihood of petitioner’s success on a motion to suppress the wiretap evidence on the
same legal grounds. The co-defendant’s motion to suppress was denied.

        Trial counsel testified that he considered the discovery he had received, the
application for the wiretap, the wiretap tapes, the co-defendant’s denied motion to suppress
the applicable case law, and procedural rules when making the decision not to file a motion
to suppress. On appellate review of trial counsel’s performance, this court “must make every
effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that time.”
Howell, 185 S.W.3d at 326 (citing Strickland, 466 U.S. at 689). We conclude that petitioner
has failed to prove that trial counsel’s performance was deficient in light of the circumstances
and trial counsel’s specific considerations.

       Furthermore, even if trial counsel’s performance could be considered deficient,
petitioner has not shown prejudice. In order to prove that he was prejudiced by any deficient
performance, petitioner needed to demonstrate that the motion to suppress would have been
successful. It would be pure speculation for this court to make that determination based on
the scant record and limited testimony provided with regard to this issue. Therefore,
petitioner’s argument is without merit.

      3. Failure to Properly Inspect All Discoverable Evidence Introduced at Trial

        Petitioner argues that trial counsel’s failure to properly inspect the scales introduced
at trial constituted deficient performance. Specifically, trial counsel did not remove the
scales from their box to ascertain if another substance or material was in the box. Trial
counsel, however, inspected the scales by opening the box and looking inside. Trial counsel
also spoke to petitioner’s wife about the scales’ purposes and uses. The Tennessee Supreme
Court has held that “[d]efense counsel must perform at least as well as a lawyer with ordinary
training and skill in the criminal law and must conscientiously protect his client’s interest,
undeflected by conflicting considerations.” Finch, 226 S.W.3d at 315-16 (quoting Baxter,
523 S.W.2d at 934-35). We conclude that under this standard, it was reasonable for trial
counsel to examine the scales without removing them from their box. As the post-conviction
court and this court on direct appeal have acknowledged, the discovery of the substance in
the scales’ box was an unforeseen event for both the State and petitioner that occurred when
an officer jostled the container. Trial counsel’s performance was, therefore, not deficient.



                                              -11-
                                   CONCLUSION

      Based on the parties’ arguments, the record, and the applicable law, we affirm the
judgment of the post-conviction court.

                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




                                          -12-
