                                                                                           04/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 6, 2018

               CHARLES McCLAIN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 10-00509       James C. Beasley, Jr., Judge
                      ___________________________________

                           No. W2017-00306-CCA-R3-PC
                       ___________________________________

The Petitioner, Charles McClain, appeals the Shelby County Criminal Court’s denial of
post-conviction relief from his convictions for first degree premeditated murder and
especially aggravated kidnapping, for which he received concurrent sentences of life
imprisonment and twenty-five years, respectively. On appeal, the Petitioner contends
that he was denied effective assistance of counsel because trial counsel failed to object to
the introduction of evidence that had been ruled inadmissible. We affirm the denial of
post-conviction relief.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Monica A. Timmerman, Bartlett, Tennessee, for the Petitioner, Charles McClain.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Michael R.
McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        Factual Background. The Petitioner and three co-defendants were charged with
first degree premeditated murder, first degree felony murder, and especially aggravated
robbery. State v. Charles McClain, No. W2013-00328-CCA-R3-CD, 2014 WL 4754531,
at *1 (Tenn. Crim. App. Sept. 24, 2014), perm. app. denied (Tenn. Jan. 15, 2015).

      Prior to trial, the Petitioner filed a motion to suppress a cell phone that was in his
possession at the time of his arrest, some jailhouse letters attributable to him, and his
statement to police. After the State elected not to contest the motion to suppress, the trial
court entered an order suppressing this evidence. At some point before trial, one of the
Petitioner’s co-defendants agreed to testify for the State, and the Petitioner and the
remaining two co-defendants proceeded to trial. Id.

        At trial, the State presented proof that the Petitioner planned the robbery that
resulted in the death of victim Tederrial Hancock. Evidence showed that the Petitioner
knew the victim because the victim had a child with the Petitioner’s estranged girlfriend
and that the Petitioner provided the gun used during the offense. The Petitioner texted
the victim the day of the offense claiming to be a girl named “Diamond” and set up a
meeting between “Diamond” and the victim at a library parking lot, where the
Petitioner’s co-defendants robbed and killed the victim while the Petitioner waited across
the street. Cell phone records revealed that the Petitioner texted the victim prior to the
shooting and called or texted his three co-defendants before and after the shooting and
that all of these calls and texts were made in the vicinity of the library where the victim
was killed. Id. at *1-3. After hearing the evidence presented at trial, the jury convicted
the Petitioner and his two co-defendants as charged, and the trial court merged the felony
murder convictions with the first degree premeditated murder convictions. Id. at *1.

       The Petitioner then filed a direct appeal, arguing that the evidence was insufficient
to corroborate the testifying co-defendant’s testimony, that he was prejudiced by the
State’s use of a hypothetical during voir dire when discussing criminal responsibility, and
that the trial court should have allowed him to rehabilitate a prospective juror during voir
dire. Id. at *6-11. This court affirmed the judgments of the trial court, and the Tennessee
Supreme Court denied the Petitioner’s application for permission to appeal. Id. at *12.

       Following his unsuccessful           direct appeal, the Petitioner timely filed a pro se
petition for post-conviction relief         and, after the appointment of counsel, filed two
amended post-conviction petitions.          The Petitioner alleged, in part, that trial counsel was
ineffective in failing to object to         the introduction of evidence that had been ruled
inadmissible by the trial court.1

       At the post-conviction hearing,2 trial counsel testified that he represented the
Petitioner at trial and that at that time, he had been practicing criminal defense
exclusively for ten years and was a certified criminal trial specialist. Trial counsel said
that the facts of the Petitioner’s case involved someone posing as a girl named
“Diamond” and using a cell phone to lure the victim to the library parking lot, where
        1
           Although the page containing this allegation is missing from the copy of the second amended
petition for post-conviction relief included in the appellate record, the transcript from the post-conviction
hearing shows that the Petitioner properly preserved this issue.
         2
           We will summarize only the testimony from the post-conviction hearing that is relevant to the
issue presented on appeal.
                                                   -2-
several individuals robbed and murdered the victim. He said the State alleged that the
Petitioner was the individual who made the phone calls to the victim and that the
Petitioner was across the street while his co-defendants robbed and killed the victim.

       Trial counsel explained that the primary defense was to suppress the evidence in
the Petitioner’s case, including the cell phone used to contact the victim that was in the
Petitioner’s possession at the time of his arrest, some jailhouse letters attributable to the
Petitioner, and the Petitioner’s statement to police. Trial counsel said the police located
the Petitioner by using a device known as “Stingray” to illegally capture data from all the
cell phones in the area, which resulted in the State not contesting the motion to suppress.

       Trial counsel explained that because the State did not contest the motion, the trial
court entered an order suppressing all physical evidence obtained at the time of the
Petitioner’s illegal arrest, including the cell phone, the jailhouse letters, and the
Petitioner’s statement to police. After this evidence was suppressed, trial counsel
believed that one of the following scenarios would occur: (1) the State would dismiss the
case, (2) the Petitioner would be able to enter a guilty plea to a lesser included offense, or
(3) the defense would be successful at trial based on the tenuous evidence of the
Petitioner’s guilt.

       However, trial counsel said that following the suppression of this evidence, the
State was able to use other witnesses to connect the Petitioner to the cell phone number
and was able to use cell phone records to show that the Petitioner’s phone number had
been used to contact the victim prior to the incident. Trial counsel stated that this
alternate evidence connecting the Petitioner to the cell phone was “independent from the
Fourth Amendment violation.” Once trial counsel learned of the State’s evidence, his
theory of defense shifted to showing that the Petitioner was not responsible for his co-
defendant’s actions in robbing and murdering the victim.

       Trial counsel said he had several conversations with the State about the evidence it
was planning to present relating to this cell phone. He added that he was “hypervigilant”
about how evidence related to this cell phone came into the trial because of the
suppression order. Trial counsel believed that the evidence that came in at trial related to
this cell phone “was admissible and was not subject to the [suppression] order.” He
added that if the appellate courts determined that this proof was inadmissible, then it was
“clear error” on his part not to object and was “definitely not trial strategy.”

       During trial counsel’s testimony, the trial court’s suppression order was entered
into evidence. In it, the trial court ordered “that all the evidence obtained by or through
the search and seizure of Charles McClain, known at this time to be evidence[] of a

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certain phone found in his possession, his statements to police and jailhouse letters
attributed to him, are suppressed.”

       The Petitioner testified that trial counsel began representing him following his
indictment. He claimed that trial counsel was ineffective in failing to object to witness
testimony connecting him to the cell phone used during the offense. Although the
Petitioner asserted that the cell phone records should have been suppressed because they
connected him to the cell phone that was discovered through his illegal arrest, he
admitted that he was only linked to these phone records at trial through witness
testimony.

       After the hearing, the post-conviction court entered an order denying relief,
wherein it made the following findings of fact and conclusions of law:


              The petitioner alleges that his trial counsel was ineffective. It
      appears to the court that the evidence against the petitioner in the trial was
      circumstantial. A codefendant testified for the State and described the
      petitioner’s role in the robbery and murder. He was identified as the person
      who set up the robbery and provided the weapon used in the murder. He
      was not present on the scene when the robbery and murder occurred.
      However, he was circumstantially linked to the other codefendants by cell
      phone records of all parties involved. The petitioner alleges that his
      attorney was ineffective for not keeping all of the records regarding cell
      phones out of evidence. Trial counsel had successfully suppressed
      evidence that showed that at the time of his arrest the petitioner had the
      victim’s phone [on which he contacted the victim to lure him to the crime
      scene] in his possession. Trial counsel filed a Motion to Suppress the
      phone due to certain violations of Federal Laws. The State chose not to
      litigate the issue and conceded to allow the evidence to be suppressed. All
      evidence of phone records and phone usage was introduced independently
      of the suppressed evidence. All phone records linked the petitioner to his
      codefendants at the time of the crime and afterwards using all of their
      personal phones. . . . Petitioner failed to provide any proof that his counsel
      was ineffective. In the Court’s opinion the key piece of evidence against
      the petitioner was suppressed due to the very effective arguments and
      motions filed by the trial counsel. Again, rather than litigate the issues
      when confronted with them by counsel, the State chose to suppress the
      evidence. This case was a circumstantial case against petitioner and trial
      counsel did a very effective job of representing and defending petitioner.

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              Petitioner has the burden of proving that but for the ineffective
       representation by his attorney he would have received a different and more
       favorable verdict. This court finds that he has not met that burden of proof.
       The court finds that trial counsel was very prepared to try and argue a very
       complex and difficult case involving multiple codefendants both for and
       against him.



Following entry of this order, the Petitioner filed a timely notice of appeal.

                                        ANALYSIS

       On appeal, the Petitioner argues that trial counsel was ineffective in failing to
object to the introduction of evidence that had been ruled inadmissible by the trial court.
Specifically, he claims that trial counsel should have objected to the admission of “any
and all evidence related to the cell phone confiscated during [his] illegal search and
seizure” because the trial court had already entered an order suppressing this evidence.
Although the Petitioner acknowledges that the State introduced evidence connecting him
to this cell phone that was unrelated to his illegal arrest, he nevertheless claims trial
counsel’s failure to object to this evidence prejudiced the outcome of his trial. The State
contends, and we agree, that the Petitioner is not entitled to relief because he has failed to
establish any deficiency on the part of trial counsel.

       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual
       issues, the appellate court will not re-weigh or re-evaluate the evidence;
       moreover, factual questions involving the credibility of witnesses or the
       weight of their testimony are matters for the trial court to resolve.



Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (citations and internal quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
                                            -5-
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Felts, 354 S.W.3d at 276 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “[A] failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”
and “a court need not address the components in any particular order or even address
both if the [petitioner] makes an insufficient showing of one component.” Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697). This court
reviews a claim of ineffective assistance of counsel, which is a mixed question of law and
fact, under a de novo standard with no presumption of correctness. Smith v. State, 357
S.W.3d 322, 336 (Tenn. 2011).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence establishes that his attorney’s conduct fell below “an objective
standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d at
369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 370 (quoting Strickland, 466 U.S. at 694).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. The petitioner must show that “counsel’s
deficient performance was of such a degree that it deprived him of a fair trial and called
into question the reliability of the outcome.” Mobley v. State, 397 S.W.3d 70, 81 (Tenn.
2013) (citation and internal quotation marks omitted). A reasonable probability of being
found guilty of a lesser charge satisfies the prejudice prong. Id.

        The State contends that the Petitioner failed to identify the particular pieces of
evidence to which trial counsel should have objected. See Tenn. R. App. P. 27(a)(7)(A)
(stating that a brief shall contain “[a]n argument . . . setting forth the contentions of the
appellant with respect to the issues presented, and the reasons therefor, including the
reasons why the contentions require appellate relief, with citations to the authorities and
appropriate references to the record . . . relied on.”); Tenn. Ct. Crim. App. R. 10(b)
(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”). However, the
Petitioner, in his brief, contends that trial counsel was ineffective in failing to object to
“any evidence related to the cellular phone that was found on his person.” He further
                                            -6-
asserts that “[t]he cell phone records were the strongest evidence against [him], and “their
introduction certainly influenced the outcome of Petitioner’s trial.” Because we believe,
based on these statements, that the Petitioner sufficiently identified the evidence in
question, he has not waived this issue by failing to set forth his contention with sufficient
specificity.

        After reviewing the record in this case, we conclude that the Petitioner is not
entitled to relief. Although the Petitioner claims that trial counsel was ineffective in
failing to object to all evidence related to this cell phone, the record shows that the
evidence admitted at trial was not excluded by the trial court’s suppression order. At the
post-conviction hearing, trial counsel testified that following entry of the suppression
order, the State was able to use other witnesses to connect the Petitioner to the cell phone
number and was able to use cell phone records to show that the Petitioner’s phone
number had been used to contact the victim prior to the incident. Trial counsel asserted
that this alternate evidence linking the Petitioner to the cell phone was “independent from
the Fourth Amendment violation.” He also said he was “hypervigilant” about ensuring
that only admissible evidence related to the cell phone was presented by the State at trial.
Trial counsel opined that the evidence that came in at trial “was admissible and not
subject to the [suppression] order.” Moreover, the Petitioner admitted during his
testimony that he was only connected to the cell phone records through witness
testimony. In the order denying relief, the post-conviction judge, who was the same
judge who presided over the Petitioner’s trial, made a specific factual finding that all
proof of the cell phone records and phone usage was introduced independently of the
suppressed evidence. Because the evidence presented at the post-conviction hearing does
not preponderate against the court’s finding of fact, this finding is conclusive on appeal.
See Vaughn, 202 S.W.3d at 115. Accordingly, the Petitioner has failed to establish any
deficiency on the part of trial counsel. Because the Petitioner has failed to establish his
claim of ineffective assistance of counsel, he is not entitled to post-conviction relief.

                                     CONCLUSION

      Based on the aforementioned authorities and reasoning, the judgment of the post-
conviction court is affirmed.


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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