        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 04, 2014

                JEREMY GARRETT v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                          No. 0407755   Chris Craft, Judge




                No. W2013-02558-CCA-R3-PC - Filed February 5, 2015


Petitioner, Jeremy Garrett, was convicted, following a jury trial, of felony murder and
especially aggravated robbery pertaining to the robbery and death of Dexter Birge. He
appealed these convictions along with an additional conviction from the same jury trial for
aggravated robbery of Mexwayne Williams. The Tennessee Supreme Court reversed the
conviction for aggravated robbery of Mr. Williams, but affirmed the convictions for felony
murder and especially aggravated robbery of Mr. Birge. State v. Garrett, 331 S.W.3d 392
(Tenn. 2011). Petitioner filed a pro se petition for post-conviction relief attacking his
convictions for felony murder and especially aggravated robbery. Counsel was appointed
to represent Petitioner, and counsel filed an amended petition. After an evidentiary hearing
the trial court dismissed the petition for post-conviction relief, and Petitioner appeals that
ruling. After a thorough review, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OBERT L. H OLLOWAY, J R., JJ., joined.

Randal G. Rhea, Memphis, Tennessee, for the appellant, Jeremy Garrett.

Herbert H. Slatery, III, Attorney General and Reporter; Meredith Devault, Senior Counsel;
Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

       Petitioner argues that he is entitled to post-conviction relief because his trial counsel
rendered ineffective assistance of counsel. Although Petitioner presented multiple
allegations of examples of deficient performance by his trial counsel at the hearing, he relies
on appeal on only one of these factual grounds. Specifically, Petitioner asserts in his brief
that trial counsel rendered ineffective assistance of counsel because

        [Trial counsel], failed to preserve evidence, photographs of [Petitioner]
        taken by [trial counsel], after [Petitioner’s] arrest. [Petitioner] asserts these
        photographs were evidence of abuse at the hands of the Shelby County
        Sheriff’s Department subsequent to his arrest in this matter.

Petitioner argues on appeal that he was prejudiced by this alleged deficient performance by
trial counsel because the photographs would have supported an argument that Petitioner’s
statement to investigators was the result of coercion.

       Petitioner did not testify at the post-conviction hearing, and he presented the testimony
of only one witness, his trial counsel.

        Trial counsel testified that at Petitioner’s request during a meeting at the courthouse,
trial counsel took pictures of Petitioner using a new palm held device even though trial
counsel did not observe any marks on Petitioner’s skin. That same day, the palm held device
was stolen after trial counsel placed it on a bench in the courtroom.

       Petitioner told trial counsel that the marks on his body (which trial counsel did not
see) were the result of physical abuse Petitioner sustained at the hands of personnel of the
Shelby County Sheriff’s Department. Petitioner did not say anything to trial counsel about
the physical abuse being related to the statement Petitioner gave to police. Petitioner’s
counsel in the post-conviction hearing asked trial counsel why trial counsel would have taken
pictures of Petitioner if the photographs were not relevant to Petitioner’s statement to police.
Trial counsel responded as follows:

        A.      There’s something that is not written in any of the rules or anything
                like that but when you want to build a rapport with your client
                sometimes you do things that they ask you to do because it’s easier
                to do those things than it is to explain why it shouldn’t be done.

                So when he asked me to take a picture of a spot on his body that I
                didn’t see any discoloration from but he said that it was there, it was
                easier for me to snap the picture than it was to explain why I’m not
                going to snap the picture. And like I said I told him at the time I
                didn’t see any discoloration but I didn’t know [Petitioner] before
                then.

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                So if he said it was there, in his eyes then it was there in his eyes,
                and that’s why I took it as opposed to not taking it.

       This is the extent of all evidence presented by Petitioner at the post-conviction hearing
pertaining to the sole issue raised by Petitioner in his appeal.

        The trial court entered an order denying post-conviction relief. As to the allegation
that trial counsel rendered ineffective assistance of counsel by failing to preserve evidence,
i.e., the photographs trial counsel took of Petitioner, the trial court made the following
findings of fact and conclusions of law:

        9) Failure to preserve photographs of the petitioner and his injuries shortly
        after his arrest. The petitioner complains that he asked his attorney after his
        arrest to take photographs of his injuries from Sheriff’s Department
        mistreatment, and these photos would have been used to show that his
        statement had been coerced. His trial attorney testified that he saw no
        visible injuries on the petitioner, and took photos of him on a “palm device”
        only because the petitioner asked him to, for the sake of client rapport, and
        that the photos showed no injuries. He left his “palm device” on a bench in
        the courtroom and it was stolen before he could download the photos. [Post-
        conviction transcript] at pp. 14, 17-18. This court finds the attorney’s
        testimony credible, and decides this issue against the petitioner. No proof
        was presented at the hearing on this petition or the trial record that the audio
        taped statement of the petitioner was anything but freely and voluntarily
        given. This issue fails for a lack of a showing of any prejudice to the
        petitioner.

Analysis

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and
weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless
we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial court judge, not the appellate

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courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997). A trial court’s conclusions of law, however, are subject to a purely de
novo review by this Court, with no presumption of correctness. Fields v. State, 40 S.W.3d
450, 457 (Tenn. 2001).

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

               First, the [petitioner] 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 [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.


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       Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective
assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United
States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The
fact that a particular strategy or tactic failed or hurt the defense does not, standing alone,
establish unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.”
House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

        We conclude that the trial court in this case properly dismissed the petition for post-
conviction relief. The trial court accredited trial counsel’s testimony. In doing so, the trial
court implicitly found that no marks or blemishes were on Petitioner at the time the
photographs were taken. Therefore, even if the palm device, with the digital photographs,
had not been stolen, the photographs would not have shown any evidence of physical abuse
to Petitioner. Trial counsel testified that he only took the photographs to appease Petitioner.
Petitioner did not offer any evidence to contradict the testimony of trial counsel. Petitioner
failed to prove deficient performance by trial counsel. Even if trial counsel had rendered
deficient performance by not printing the photographs or otherwise saving them prior to the
theft of the palm device, there would have been no prejudice to Petitioner.

      Accordingly, Petitioner is not entitled to relief in this appeal. The trial court’s
judgment dismissing the petition for post-conviction relief is affirmed.

                                           _______________________________________
                                           THOMAS T. WOODALL, PRESIDING JUDGE




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