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

                      LAMAR ROSS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 02-08113 James M. Lammey, Jr., Judge



                    No. W2008-01130-CCA-R3-PC - Filed August 20, 2009


The petitioner, Lamar Ross, appeals from the post-conviction court’s denial of post-conviction relief
as it relates to the petitioner’s convictions on two counts of aggravated rape, which were merged into
a single judgment of conviction by the trial court and modified on direct appeal. On appeal from the
judgment of the post-conviction court, the petitioner asserts that trial counsel was ineffective and that
he was thereby prejudiced. Following our review of the record and the parties’ briefs, we affirm the
judgment of the post-conviction court denying post-conviction relief.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.
GLENN , JJ., joined.

Deena L. Knopf, Memphis, Tennessee, for the appellant, Lamar Ross.

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

                                              OPINION

                                            Background
        The petitioner was indicted on two counts of aggravated rape, Class A felonies. Following
a jury trial, he was convicted on both counts and they were merged into a single judgment of
conviction. The petitioner was sentenced by the trial court as a Range I, violent offender to
twenty-four years in the Tennessee Department of Correction. On direct appeal, this court modified
the conviction in Count II to rape, a Class B felony, concluded that two of the four enhancement
factors utilized by the trial court were inapplicable, and reduced the petitioner’s sentence to
twenty-two years in the Tennessee Department of Correction. See State v. Lamar Ross, No.
W2003-02823-CCA-R3-CD, 2004 WL 2715348 (Tenn. Crim. App., at Jackson, Nov. 22, 2004),
perm. app. denied (Tenn. May 31, 2005). The following is a summary of the facts of the case taken
from this court’s opinion on direct appeal:
        The victim in this case, J.F., FN1 is a resident of the Barry Homes, a
Memphis public housing development reserved for the physically and mentally
disabled. At approximately 11:50 p.m. on July 1, 2002, the victim reported to
Carolyn Delbridge, a Memphis Housing Authority criminal investigator assigned to
the building, that earlier in the day a man had enticed him into walking with him to
a nearby abandoned public housing complex, where he had forced the victim at
knifepoint to perform oral sex and had penetrated him anally with his penis. From
the victim’s description, Delbridge recognized the defendant, who was a regular
visitor in the Barry Homes, and whom she had seen in the building earlier that
afternoon.

       FN1. It is the policy of this court to identify victims of sexual assault
       by their initials only.

        The victim subsequently led Delbridge, her supervisor, and a group of
Memphis police officers to the abandoned housing complex and pointed out the room
in which the rape occurred. There, the officers discovered the defendant asleep on
the floor, a gray knife matching the victim’s description of the weapon used in the
attack underneath a blanket beside his left hand. In addition, the victim immediately
identified the defendant as the perpetrator when the officers removed him from the
room. As a result, the defendant was arrested and charged with two counts of
aggravated rape, based on his use of a weapon in the attack and his rape of a victim
he knew or had reason to know was mentally defective.

        At the defendant’s September 22-24, 2003, trial, the victim testified he was
forty-one years old and had lived in the Barry Homes Housing Development in
downtown Memphis for the past two years and four months. He said he was sitting
outside the building on July 1, 2002, when a man dressed in blue jeans and a black
shirt with a black design approached and asked him to accompany him to where he
was living, saying something about wanting to show the victim a “cat hole” and also
about having the victim play basketball with him. The victim said he declined, but
the man grabbed him by the arm and told him to come with him, repeating that he
had something to show him. As they walked together down the street, the man
introduced himself to the victim as “Lamar Ross.”

        After leading the victim into an upstairs vacant room inside the nearby
abandoned Lauderdale Court housing project, the man suddenly pulled down his
clothes, telling the protesting victim that he had to “do [his] job.” The victim said
he refused and tried to leave, but the man grabbed him by the neck, pulled out a gray
knife, and threatened that he would be “a dead sucker” if he did not “suck his penis.”
Because he was afraid the man would hurt him, the victim complied. He said that
afterwards, the man forced him to lower his pants and then penetrated his rectum
with his penis four times, which hurt him. When finished, the man forced him to
wait and walk back toward the Barry Homes complex with him, threatening that the
victim was “gonna get [his] butt kicked again” if he refused.

                                         -2-
        The victim testified that when he returned home he first related the incident
to the manager of his building, who refused to help, and later to Ms. Delbridge, the
building’s security officer, who called her supervisor and the police. After describing
the rapist, he led officers to the abandoned housing complex, where the police
discovered a man fitting the rapist’s description asleep in the room where the incident
occurred. The victim testified he immediately recognized and identified the man as
the perpetrator when the police brought him out of the room. However, the victim
was unable to identify the defendant at trial.

        On cross-examination, the victim testified he completed the eleventh grade
but did not graduate. He was unsure of the exact time the incident occurred, but was
confident it was before dark. He was also confident that the defendant told him his
name was “Lamar Ross.” He acknowledged he had reported the time of the incident
as 4:00 p.m. in his statement to police, and had said that Ms. Delbridge told him the
perpetrator’s name was Lamar. He testified he described the perpetrator as a tan or
“khaki-skinned” man with facial hair, shorter than he was, and dressed in blue jeans,
a black shirt, and white tennis shoes. The victim said he did not think the defendant
had been wearing a condom, and he did not ejaculate in his mouth. He denied having
told anyone that the defendant ejaculated, but said he had mentioned that he saw
“some white stuff caked around [the defendant’s] penis,” which had an “ill smell to
it.” The victim acknowledged he told police that he was 5' 6" and thought his
assailant was six feet tall. He was unable to say whether six feet was taller than his
height, but indicated that the man who raped him came up to his ear. On redirect, he
affirmed that he had been able to point out the defendant to the judge in an earlier
court proceeding in the case.

        Carolyn Delbridge testified she was working at the Barry Homes as a criminal
investigator for the Memphis Housing Authority on July 1, 2002, when the
“crying-shaken-real distraught” victim came to her at 11:50 p.m. and reported that
“somebody made him put their nasty thing in his mouth.” She said the victim related
that he had been sitting on the stoop when a man wearing dark jeans, a black
long-sleeved shirt with white writing on it, and white tennis shoes asked him for a
beer. The victim told her that he refused to buy him a beer, and the man asked him
to accompany him to the store. However, when they reached the abandoned
Lauderdale Court Apartments, the man “pushed . . . and shoved him” inside an
apartment, pulled a gray knife, forced him to go upstairs into a room with a folded
blanket on the floor and a pink candle in the window, and then made him perform
oral sex and anally penetrated him. Delbridge stated that the victim did not know
what a condom was, but answered in the affirmative when she asked if he had been
wet where the man penetrated him. She agreed that the victim was mentally
disabled, or “a little slow.”

     Delbridge testified that the victim led her, her supervisor, and several
Memphis police officers to the apartment, where they found the defendant asleep on

                                         -3-
some folded blankets on the floor. She said the victim had previously described the
perpetrator’s foot odor, and she and the other officers were able to smell the
defendant’s feet “as soon as [they] hit that bedroom.” She confirmed that the victim
identified the defendant as his rapist at the scene, and testified that a gray knife was
discovered near the defendant’s left hand on the floor under a blanket. On
cross-examination, Delbridge testified that the defendant checked into the Barry
Homes for a visit at 5:00 p.m. and left around 5:30 or 5:40 p.m. She said the victim
told her that the rape occurred between 8:00 and 8:30 p.m. She acknowledged she
recognized the defendant from the victim’s initial description of his rapist, but was
confident she did not tell the victim his name. On redirect, she testified she
recognized the defendant from the victim’s description of his perpetrator’s bad case
of acne and his clothing.

       Memphis Police Officer Christopher Patterson testified that shortly after
midnight on July 2, 2002, the victim led him and several other officers to the
Lauderdale Court apartment in which the attack had occurred, where they discovered
the defendant asleep on the floor. He confirmed that the victim identified the
defendant at the scene as the man who had raped him.

        Jerry Hamilton testified he was the manager of clinical services for Case
Management Incorporated, a private agency that assists clients with mental health
problems to locate housing, food, and other resources in order to “make adjustments
to the community” and to function as independently as possible. He said that the
victim, a client of his company, had been diagnosed with a mood disorder and mental
retardation and received a government disability check based on his mental disability.

        Darna Davis testified she was a caseworker for Case Management, Inc., and
had managed the victim’s case since May. She said her understanding was that the
victim had been diagnosed with both mental retardation and a mood disorder. She
stated that her company managed the victim’s money, paid his bills, filled and
delivered his monthly prescriptions, and provided transportation for him to and from
the clinic. However, the defendant lived on his own at the Barry Homes, was
responsible for taking his medication daily, and appeared to her to be able to take
care of himself on a daily basis.

        Nina Sublette, a nurse practitioner who was accepted by the trial court as an
expert in the field of forensic nursing, testified she examined the victim at the
Memphis Sexual Assault Resource Center at 2:30 a.m. on July 2, 2002. Although
she observed nothing unusual with respect to the victim’s mouth and lips, she found
four subacute lacerations to his anal verge, or the wrinkled part of his rectum, as well
as a larger laceration located outside the anal verge at the “peri-anal skin area.” All
five lacerations bled easily upon slight manipulation. Sublette opined that the
injuries were “very recent,” had definitely occurred within the past twenty-four hours
and probably within the past twelve, and were consistent with “blunt penetrating
trauma.” She testified there was no semen detected on the oral or rectal swabs she

                                          -4-
        collected from the victim or from his underwear. On cross-examination, Sublette
        testified she had estimated the time of the assault as 4:00 p.m. based on what the
        victim told her. She acknowledged the victim told her he thought his assailant wore
        a condom, but could not recall if she had to first explain to him what a condom was.

                The defendant elected not to testify and rested his case without presenting any
        proof. After deliberating, the jury returned guilty verdicts in both counts of the
        indictment. At the conclusion of the sentencing hearing, the trial court announced
        that the convictions would be merged into a single judgment of conviction and
        applied the following enhancement factors to the offense: (2), the defendant has a
        previous history of criminal convictions or criminal behavior in addition to those
        necessary to establish his range; (6), the defendant treated or allowed a victim to be
        treated with exceptional cruelty during the commission of the offense; and (7), the
        personal injures inflicted upon the victim were particularly great. Tenn. Code Ann.
        § 40-35-114(2), (6), (7) (2003). Without specifying which, the trial court also found
        that because of the alternate theories under which the defendant had been convicted
        of the two separate counts, which had merged, either enhancement factor (5), the
        victim was particularly vulnerable because of age or physical or mental disability, or
        enhancement factor (10), the defendant possessed or employed a deadly weapon
        during the commission of the offense, applied. See id. § 40-35-114(5), (10). Finding
        no mitigating factors applicable, the trial court enhanced the defendant’s sentence
        from the presumptive midpoint of twenty years for a Range I offender convicted of
        a Class A felony to twenty-four years.

Lamar Ross, 2004 WL 2715348, at *1-4. The petitioner filed a timely pro se petition for
post-conviction relief. Thereafter, post-conviction counsel was appointed, an amended petition was
filed, and an evidentiary hearing was held. At the hearing, the following pertinent testimony was
presented. The petitioner testified that in October of 2002, he entered a plea of “not guilty” and trial
counsel was appointed to represent him on charges of aggravated rape. According to the petitioner,
trial counsel met with him only one time prior to trial. He stated that while he was in jail awaiting
trial, he received the state’s discovery package, however, he claimed that trial counsel did not meet
with him to review the package. The petitioner denied that he spoke with trial counsel regarding an
investigation of the case or potential trial witnesses. On the day of trial, counsel relayed a plea offer
made by the state.

        Regarding the underlying facts of the case, the petitioner testified that since 1992, he had
frequently gone to Barry Homes to visit a friend. On the day of the incident, the petitioner signed
into Barry Homes at 5:00 p.m. and signed out at 5:20 p.m. A surveillance camera located outside
the entrance at Barry Homes would have verified his arrival and departure times. He stated that he
did not ask trial counsel to obtain tapes from the surveillance camera. The petitioner denied that he
saw or talked to the victim prior to July 2, 2002, the day of his arrest. At the time of his arrest, the
petitioner was living on the street. He stated that he had passed out in a vacant apartment in
Lauderdale Court, an abandoned public housing complex. The police awoke him, searched him, and
handcuffed him. The petitioner stated that he was taken outside of the building in handcuffs, and
he saw the victim standing on the sidewalk. One of the officers asked the victim, “if this was the

                                                  -5-
man.” The victim first said that the petitioner looked like his attacker, but then made a definite
identification.

         The petitioner stated that the victim did not initially identify him at the preliminary hearing
and did not identify him at trial. On cross-examination, the petitioner agreed that there were a
number of inmates present in the courtroom at his preliminary hearing. He further agreed that at one
point during the hearing, the victim identified him as his attacker. The petitioner stated that when
he was arrested, he wore a long sleeve black shirt, blue jeans, and white tennis shoes. He agreed that
at the time of his arrest, his clothes and bedding matched the victim’s description of the clothes and
bedding of his attacker.

         Vertie McNeil, sergeant with the Memphis Police Department, testified that she was involved
in the investigation of the case and identified statements she took from the victim and the petitioner.
According to the victim’s statement, he was attacked at approximately 4:00 p.m. on July 1. On
cross-examination, Sergeant McNeil stated that the victim said that his attacker had black hair and
tan skin and was wearing blue jeans, a black shirt, and white tennis shoes. According to the victim,
his attacker was shorter than his own height, five feet, six inches, and he was in his 30’s or 40’s.
When Sergeant McNeil asked the victim if he knew his attacker, he stated, “I would have known him
by his face[.]” Sergeant McNeil stated that she asked the petitioner about the attack and he denied
any knowledge or involvement. She stated that she was not subpoenaed to trial and did not testify.

        Sharonda Hampton, lieutenant with the Memphis Police Department, testified that late on
July 1, or early on July 2, 2002, she and several other officers responded to a rape call at Barry
Homes. Police officers brought the victim to an abandoned apartment complex and the victim
pointed out the apartment where the rape occurred. Lieutenant Hampton participated in a search of
the apartment. She stated they found a man asleep on the floor with a knife beside him. The knife
matched the victim’s description of the knife used by his attacker. The suspect was handcuffed and
brought out of the building “to see if the victim, . . .could identify him.” Lieutenant Hampton said
she did not speak to the victim, however, according to the other officers, the victim identified the
suspect as his attacker. Lieutenant Hampton testified that she did not hear any of the police officers
suggest to the victim that the suspect was his attacker. On cross-examination, Lieutenant Hampton
confirmed that the suspect found in the building matched the physical description given by the
victim, and he was wearing clothing that matched the victim’s description of the attacker’s clothes.

        Trial counsel testified that on October 29, 2002, the petitioner was arraigned and she was
appointed to represent him. Counsel stated that she spoke to the petitioner on October 29th, at three
subsequent court appearances and on the first day of trial. Counsel said that she did not visit the
petitioner in jail, however, she explained, “at that time we were having problems getting people
down to the jail and so we would talk to people in court.” Counsel stated she received discovery
from the state and sent a copy of the package to the petitioner. She discussed the state’s discovery
package with the petitioner. She and the petitioner also discussed potential witnesses for trial. The
petitioner did not ask her to contact any witnesses and did not request that she obtain surveillance
tapes. Counsel obtained the petitioner’s file from the attorney who had represented him in General
Sessions Court. It was counsel’s understanding that the petitioner wanted to proceed on the defense
that the victim identified the wrong person. Counsel was aware that at the time the petitioner was

                                                  -6-
found by police, he was brought out of the building in handcuffs before the victim identified him.
However, she did not file a motion to suppress the identification. Regarding a note in counsel’s file
referring to Dr. Sandra Bolts, counsel explained that she considered having Dr. Bolts testify
regarding the victim’s mental condition, but decided against it. She thought that the proof at trial
showed that the victim could take care of himself and that such proof was beneficial to the petitioner.
Counsel stated that she did not want to do anything to make the victim appear unaware of his
surroundings or unable to identify his attacker.

        Counsel testified that her notes from trial indicated that Mr. Hamilton testified that the victim
had a mood disorder, but was stabilized. Ms. Davis testified that she saw the victim once a month
to insure everything was going all right. According to Ms. Davis, the victim gave himself his own
medicine, prepared his own food, and took care of himself. Referring to a trial transcript, counsel
stated that the prosecutor asked Ms. Davis if it was her understanding that the victim “has both a
mood disorder and he’s also been diagnosed as mentally retarded[.]” Ms. Davis responded, “yes.”

       Counsel agreed that the trial court ruled that evidence of the petitioner’s prior convictions
would not be allowed. According to counsel, her position that the petitioner should not testify was
not based on a prior conviction, but on what the petitioner told her before trial.

        On cross-examination, counsel stated that the petitioner told her “he had been drinking, he
was passed out, he woke up, his pants had been pulled down and [the victim] had impaled himself
on [the petitioner’s] erect penis.” The petitioner had previously told counsel that he knew nothing
about the rape or the victim. The petitioner told the attorney who represented him in General
Sessions Court that he was on crack and had been up for three or four days when he went to Barry
Homes to visit his friend. He told his former attorney that he only remembered leaving Barry Homes
and that the victim began walking with him. The next thing he knew, he awoke with the victim on
top of him.

        Counsel stated that in preparing for trial, she spoke with the petitioner and all of the
witnesses that she was able to interview. Counsel testified that she also reviewed a transcript of the
preliminary hearing and confirmed that the victim had identified the petitioner at the hearing.
Counsel spoke with the attorney who had represented the petitioner in General Sessions Court and
learned that the victim had been a good witness. Counsel stated that an investigator contacted
Sergeant McNeil at Juvenile Court and told her he was bringing over a subpoena for trial. When the
investigator arrived, Sergeant McNeil was no longer at Juvenile Court. The investigator left the
subpoena with Terry Fratesi, an assistant district attorney. Counsel stated that Officer Delbridge
identified the petitioner at trial. Counsel did not pursue the issue of the identification of the
petitioner because the state had not mentioned that the victim identified the petitioner at the
preliminary hearing. She did not want to bring up a prior identification. After taking the matter
under advisement, the post-conviction court entered an order denying the petition for post-conviction
relief. The petitioner has appealed.

                                               Analysis



                                                  -7-
         On appeal, the petitioner asserts that trial counsel was ineffective.1 Specifically, he argues
that trial counsel was deficient in failing to file a motion to suppress the victim’s initial identification
of the petitioner as his attacker. The petitioner also asserts that counsel was deficient in failing to
object to lay testimony concerning the victim’s decreased mental capacity.

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the
allegations of fact set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless
the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings, such as
findings concerning the credibility of witnesses and the weight and value given their testimony, is
de novo with a presumption that the findings are correct. See id. Our review of the post-conviction
court’s legal conclusions and application of law to facts is de novo without a presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

         In order to establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,
466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient
performance is shown if counsel’s conduct fell below an objective standard of reasonableness under
prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence
demanded of attorneys in criminal cases). A fair assessment of counsel’s performance, “requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or
tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell
below a reasonable standard, the petitioner must also prove prejudice. Prejudice is shown if, but for
counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding
would have been different. Strickland, 466 U.S. at 694. Both deficient performance and prejudice
must be established to prove ineffective assistance of counsel. Id. at 697. If either element of
ineffective assistance of counsel has not been established, a court need not address the other element.
Id.

                                I. The victim’s identification of the petitioner



         1
           In his petition and at the hearing, the petitioner argued that his claim of ineffective assistance of counsel was
supported by a num ber of grounds that he has abandoned on appeal. Since our review generally does not extend to
issues not presented for review, we decline to address arguments in support of the petitioner’s claim of ineffective
assistance of counsel pursued below but not presented to this court for review. See Tenn. R. App. P. 13(b).

                                                            -8-
         On appeal, the petitioner asserts that trial counsel was deficient in her representation by
failing to file a motion to suppress the victim’s initial identification of the petitioner. He argues that
the victim’s “show-up” identification of him was unreliable and made under suggestive
circumstances. He asserts that trial counsel should have moved to suppress the identification made
while he was in handcuffs and surrounded by police officers. The petitioner also asserts that the
victim’s alleged mental incapacity rendered the identification unreliable. According to the
petitioner, if trial counsel had filed and argued a motion to suppress the identification, the case
against him would have been reduced to purely circumstantial evidence and the likelihood of
conviction would have been severely diminished.

        On appeal, the petitioner acknowledges the holding in Sloan v. State, 584 S.W.2d 461, 466
(Tenn. Crim. App. 1978) for the proposition,“that despite suggestiveness in the procedure employed,
an out-of-court identification will withstand a due process attack if the identification itself is reliable
in evaluating the totality of the circumstances.” In Sloan, the court recognized that a violation of due
process had occurred when the “identification procedure was so suggestive as to give rise to ‘a very
substantial likelihood of irreparable misidentification.’” (citing Simmons v. United States, 390 U.S.
377, 384 (1968)). The reliability of an identification should “be assessed in light of the
suggestiveness of the identification procedure and the totality of the circumstances to determine
whether a violation of due process has occurred.” See id. (citing Proctor v. State, 565 S.W.2d 909,
911-912 (Tenn. Crim. App. 1978)). Factors to be considered in evaluating the reliability of an
identification include: (1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the
criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. See id. (citing Proctor, 565 S.W.2d at
911-912 (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972))); see also State v. Vidal L. Strickland,
No. M2002-01714-CCA-R3-CD, 2003 WL 22243440, at *12 (Tenn. Crim. App., at Jackson, Sept.
30, 2003), perm. app. denied (Tenn. Oct. 17, 2005) (citing Biggers, 409 U.S. 188, 199)).

        Tennessee courts have rejected the use of show-up identifications to establish the identity of
individuals suspected of a crime unless, “(a) there are imperative circumstances which necessitate
a show-up, or (b) the show-up occurs as an on-the-scene investigatory procedure shortly after the
commission of the crime.” State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989)
(citations omitted). Imperative circumstances include the commission of a serious felony where the
perpetrator is still at large. See Strickland, 2003 WL 22243440, at *13 (citation omitted). An
identification made during a confrontation arranged between a victim and a suspect may be reliable
where the identification was part of an on-the-scene investigation and the victim not only identified
the suspect, but also gave accurate descriptions of relevant details. See Kenneth Reeder Isabell v.
State, No. 84-120-III, 1986 WL 1676, at *2 (Tenn. Crim. App., at Nashville, Feb. 4, 1986) (citing
Johnson v. State, 596 S.W.2d 97 (Tenn. Crim. App. 1979); State v. McDougle, 681 S.W.2d 578, 581
(Tenn. Crim. App. 1984)).

       In this case, the victim identified the petitioner when he was brought from the building where
he was found in handcuffs. “The practice of presenting a handcuffed suspect in a one-on-one
confrontation has been condemned.” Strickland, 2003 WL 22243440, at *13 (citations omitted).
However, presenting a suspect in handcuffs does not establish that the show-up identification was

                                                   -9-
impermissibly suggestive when reliability of the identification may be otherwise established. See
id. The record reveals that the identification took place within hours of the crime, after the petitioner
was found at the location identified by the victim at the crime scene, and in clothes matching the
victim’s description. Thus, the show-up identification was conducted as part of an on-the-scene
investigatory procedure within hours of the crime. In addition, a serious felony had been committed
and the armed perpetrator was still at large.

         Furthermore, an analysis of the Biggers factors supports the conclusion that a substantial
danger of misidentification did not exist in this case. See id. First, due to the nature of the crime and
the amount of time the victim spent with the petitioner, the victim had the opportunity to clearly
view his attacker. Second, the victim’s description of the petitioner’s clothing, hair, and actions
reveal a high degree of attention paid by the victim to his assailant. Third, the victim’s description
matched the appearance of the petitioner at the time of his arrest. Fourth, although the petitioner
testified that the victim hesitated in identifying him, Lieutenant Hampton testified at the post
conviction hearing that the victim identified the petitioner without assistance. At trial, Officer
Patterson verified the victim’s identification of the petitioner and the crime scene. Officer Delbridge
testified regarding the victim’s knowledge of details which led to the discovery of the petitioner.
Finally, the identification occurred within hours of the rape. Thus, all five factors support the
reliability and accuracy of the identification.

         In light of the foregoing, we conclude that the record supports the reliability of the victim’s
identification of the petitioner. The petitioner has failed to demonstrate that a motion to suppress
would have prevailed or that trial counsel was deficient in failing to file the motion. Moreover, in
the event that a motion to suppress the identification would have prevailed, it is not likely that the
outcome of the trial would have been different. The state may prove its case entirely through
circumstantial evidence where facts are “so clearly interwoven and connected that the finger of guilt
is pointed unerringly at the defendant and the defendant alone.” State v. Smith, 868 S.W.2d 561, 569
(Tenn. 1993). At trial, Officer Delbridge testified that the petitioner visited Barry Homes on the day
of the rape and that she recognized the petitioner from the victim’s initial description of his
perpetrator. The petitioner admitted that his clothing and bedding matched the descriptions given
by the victim. Lieutenant Hampton testified that a knife matching the victim’s description was found
next to the petitioner in the apartment identified by the victim as the crime scene. Even without
evidence of the victim’s identification of the petitioner, there was substantial evidence presented at
trial to establish the identity of the petitioner as the victim’s attacker. Therefore, the petitioner has
failed to show prejudice as a result of trial counsel’s failure to file a motion to suppress.
Accordingly, we conclude that the record supports the post-conviction court’s finding that trial
counsel’s actions were within an objective reasonable standard. The petitioner is without relief on
this issue.

                     II. Lay testimony regarding the victim’s mental condition

        The petitioner also asserts that trial counsel was ineffective in failing to object to lay
testimony regarding the victim’s diagnoses of a mood disorder and mental retardation. He argues
that the testimony of Mr. Hamilton and Ms. Davis regarding the victim’s mental condition was
offered without a proper foundation. He further asserts that neither Mr. Hamilton nor Ms. Davis

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testified to personal knowledge sufficient to justify the jury’s consideration of their opinions
regarding the victim’s mental capacity. The order of the post-conviction court states the following
findings:

                Petitioner asserts trial counsel was ineffective for not objecting to witnesses’
       testimony regarding victim’s previous diagnoses. Specifically, Petitioner claims trial
       counsel should have objected to Darna Davis and Jerry Hamilton’s testimonies
       concerning the victim’s mood disorder and mental retardation diagnoses because a
       proper foundation was not laid nor were the witnesses qualified as experts. Petitioner
       further contends trial counsel should have proffered evidence rebutting the victim’s
       alleged mental conditions. Both Ms. Davis and Mr. Hamilton testified at trial that
       they worked for Case Management, Inc. a private organization that aids clients who
       have mental health problems, which provided the victim assistance and managed his
       disability income. Based upon the witnesses’ testimonies regarding their employer
       and job duties, the victim’s diagnoses were within their personal knowledge to testify
       about. Therefore, a proper foundation was laid for their testimonies. Petitioner has
       failed to offer any evidence which trial counsel should have produced at trial to rebut
       the victim’s mental conditions. Furthermore, the Tennessee Criminal Court of
       Appeals found the evidence of the victim’s mental defect “ample.” This Court finds
       that [counsel’s] representation did not fall below an objective reasonable standard.

The record does not preponderate against the trial court’s findings. Because a proper foundation
established that Ms. Davis and Mr. Hamilton could testify regarding the victim’s mental condition,
any objection to their testimony regarding the victim’s diagnoses would have lacked merit.
Additionally, as pointed out by the post-conviction court, there was ample proof in the record
regarding the victim’s mental condition. The victim lived in Barry Homes, a facility reserved for
the disabled. His finances were managed and his personal care was monitored by Case Management,
Inc. Officer Delbridge testified at trial regarding the victim’s diminished mental capacity. We
conclude that the petitioner has failed to show that trial counsel was deficient in failing to object to
testimony regarding the victim’s mental ability. The petitioner has also failed to show that he was
prejudiced. The petitioner is without relief on this issue.

                                             Conclusion

       Based on the foregoing, we affirm the judgment of post-conviction court.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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